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Join radiation oncologists Shannon MacDonald and Sean McBride as they delve into the evolving landscape of telemedicine in oncology. They discuss the significant improvements telemedicine brought during the COVID-19 pandemic, the challenges and legal barriers now faced with cross-state telemedicine, and how these restrictions impact patient care, particularly for those in rural areas or who frequently travel. With a focus on potential legislative changes and ethical considerations, Shannon and Sean offer their expert perspectives on how we can shape a more accessible and equitable future for cancer care.

Shannon MacDonald is a radiation oncologist specializing in proton therapy, pediatrics, sarcoma, and skull base tumors. She pioneered the use of proton therapy for locally advanced breast cancer. She can be reached on X @shannonmacdonmd and Instagram @shannon_mcdonald18. She practices as Mass General Brigham, Boston, MA. Sean McBride is a radiation oncologist.

They discuss the KevinMD article, “Why saving interstate telehealth should matter to you.”

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Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast, get CME for this episode by clicking on the CME link in the show notes. Today we welcome Shannon MacDonald and Sean McBride. Both of them are radiation oncologists, and they’re going to talk about the KevinMD article “Why saving interstate telehealth should matter to you.” Shannon and Sean, welcome to the show.

Shannon MacDonald: Thanks very much, Kevin.

Kevin Pho: So I’m going to ask each of you just to briefly share your story and journey. Sean, why don’t you go first.

Sean McBride: Well, you know, I’m a radiation oncologist in Manhattan at Memorial Sloan Kettering, and during the pandemic we made use of telehealth quite frequently. Obviously New York City was hard hit, and telehealth was integral in us being able to continue to provide top quality care to our patients.

So when this public health emergency ended and the states began to roll back these telehealth flexibilities, because essentially, as I’m sure your listeners know, during the pandemic states did not require that you be licensed in that state in order to do telehealth with patients located in that state. And when they started to roll those back, it started to frustrate a lot of our patients, because the ease of access that they once had was being crimped.

And so I began, along with Shannon, to look into various strategies to try to fight back against this rollback of these telehealth allowances. And you know, as we’ll talk about, the article, we decided to pursue a legal strategy to vindicate the rights of our patients there.

Kevin Pho: Perfect. So Sean, before I get to Shannon’s story, tell us what the situation is now. Just give us some context in terms of what the rules are when it comes to practicing interstate.

Sean McBride: I think in a vast majority of states right now, in order to practice, if you’re located in state A and your patient’s in state B, even though you’re duly licensed in state A, with the requirements of licensure basically being identical between all states, you have to have graduated from a U.S. medical school, you have had to have passed the USMLE, you can’t have had a criminal record, I mean they’re all the same between the states.

So despite the fact that you are licensed in state A, in the state of your residence where you usually practice, in order to do a telehealth call with a patient in state B you have to get licensed all over again in state B, even though the requirements for licensure are exactly identical.

And so right now, if you do it by the books, in many states, if you do a telehealth with a patient in a state in which you are not licensed, if the patient’s located in a state in which you’re not licensed, you’re subject to penalties up to and including imprisonment, if you look at the actual law books. So that’s the current state, unfortunately.

Kevin Pho: All right, Shannon, why don’t you briefly share your story and journey.

Shannon MacDonald: Sure. So I’m a radiation oncologist at Mass General Brigham. During the pandemic I was allowed to treat new consultations, see patients, and follow up, that from out of state, just like Sean. Most of my patients have pediatric brain tumors or base of skull, rare sarcomas, and they benefit from a form of radiation called proton radiation, which is not available in every state. So I see a large number of out-of-state patients.

And I thought this would be the new norm forever. I loved it, my patients loved it. Patients could have a family member next to them, they didn’t have to fly out with their whole family. You know, I followed a patient for a decade who loved doing telemedicine and was so disappointed to have to go back to flying in to my state for follow-ups. And you know, you think about the financial toxicity for patients, the burden, and just the limited access for patients who are in rural areas or areas without the type of care that they may need.

So when the restrictions were put back in place I was really sad, my patients were frustrated, and I had this feeling that my ethical obligations to my patients were now in direct conflict to a legal framework that was put in place in an era when physician and patient interaction had to be in person, and the 1800s, you know, days of horses, carrier pigeons. And now in the modern era, you know, distance disappears over the internet and phone, and why can’t we see patients from another state? You know, as Sean mentioned, we all graduate from U.S. medical schools and we could practice in any state. The licensing requirements are not different, they’re the same.

And so I thought it seemed cruel that these restrictions were put back in place after they worked so well for a period of time during the pandemic. And so I wrote a perspective piece on this in the New England Journal of Medicine. It got picked up by some press. It also sparked some interest of my colleagues at Harvard Law and the Harvard School of Public Health, and we started to work together. Sean was part of a consortium of hospitals that met at Harvard Law School to write guidelines for hospitals. And the FSMB, the Federation of State Medical Boards, that gives recommendations to states for changes, have also put out some recommendations to allow telemedicine in certain situations. But nothing’s happened, you know, it’s hard to change the law.

So I think the Pacific Legal Foundation was a group that took on our case pro bono and is helping us to hopefully bring more attention to this issue.

And one comment is that, you know, many of us made phone calls before the pandemic, we called our patients back, and now all of a sudden we’re being told by general counsel, you know, a phone call is practicing medicine, you really shouldn’t be doing that. And so it’s worse than it was before the pandemic. A spotlight has been shined on this topic. And maybe, you know, physicians could say, well, we still do it and nothing’s really happening. But new physicians are being trained not to do this, and our admins are being instructed not to arrange a phone call with a patient who’s out of state. So I do think that it’s going to be noticed by more and more citizens and more and more physicians as time goes on.

Kevin Pho: So before I get to the article, Shannon, I just wanted to follow up. Is it fair to say that when those restrictions were lifted and you were able to treat patients outside of state lines during the pandemic, that you could even say that the care that you were giving them was better than what it was before and what it is now? Is that fair to say?

Shannon MacDonald: I think it was so much better, because of the distance that they would have to travel to see me. Some of them could not do that. And the care is better when they have their family members around them who can help them to understand and be present. And when a patient’s traveling a great distance, it’s hard for everybody to take time off from work, buy a plane ticket, get a hotel, get child care for your kids.

So yes, I think the care was much better. And I think it’s better for a patient to follow with the physician who treated them. So many of my patients come, get their care, but it’s really hard to follow. And with Zoom and telemedicine it was so easy and so wonderful to keep that connection, and for them to be followed by the physician who treated them and knows them best.

Kevin Pho: Now, both of you wrote the KevinMD article “Why saving interstate telehealth should matter to you.” Sean, tell us what this article specifically is about.

Sean McBride: I mean, in the article we tried to outline arguments for why interstate telehealth requirements for licensure just don’t make sense for physicians who are already duly licensed. I mean, as Shannon alluded to, there’s a lot of benefit for patients in terms of access, and especially access to expertise, access to oncologists who might treat rare types of cancers. And this is an especially acute need for patients in rural communities, and we make that point.

We argue that an ideal legislative solution would be to treat medical licensure like driver’s licenses. You know, when you’re going on a trip across the country you don’t need to obtain a separate license in every state you’re going to drive through, and that’s because driver’s education, the rules are the same throughout the United States for all intents and purposes, and the rules of the road are essentially the same between the states. And the same is true of medical care. You don’t treat prostate cancer any differently in California than you do in Colorado.

So the argument we were trying to make is that medicine is nationalized, unlike what it was back in the 1800s where you have a lot of local variation in practice. And because of that, it doesn’t make sense to have these individual state licensure requirements once you’ve already met the basic obligations of your specialty. And so that’s our essential legislative argument.

But I think part of the issue here is that state medical boards are very protective of the physicians in their state. There’s a protectionist element here, and we understand that. They don’t necessarily want the competition that lifting these licensure requirements would invite. But when it’s good for the patients, that’s a very hard counterargument to make.

So we found that the legislative road to solving this has been relatively fraught, because state legislators listen to their in-state doctors. I mean, that makes sense, that’s who they represent. I don’t have people representing me in California, I’m in New York, and so they listen to the doctors in state.

So we thought that the best way to go about tackling this was to file legal challenges. And luckily we think the law is actually on our side. We don’t even think we need to pass any new laws, because we think the Constitution, the supreme law of the land, argues in favor of lifting these telehealth requirements. Both because the Constitution gives the federal government the sole right to regulate commerce between the states, and this is paradigmatically commerce. The doctors, it’s a service, the doctor’s in one state, the patient’s in another, it’s interstate, and the Constitution is pretty clear on that.

And then the other argument we make, and that our lawyers at Pacific Legal have really, they’re the ones that have made it, is that it’s a violation of the First Amendment. Essentially these state governments are telling patients that they can’t talk to doctors about certain subjects, namely subjects related to their particular medical circumstance. And the government has to have a really good reason when it’s going to impede on interstate commerce, it has to have a really good reason when it’s going to impede on speech rights. And Shannon and I and our very able attorneys at Pacific Legal don’t think they have a very good reason.

Kevin Pho: So Shannon, when you wrote about this in your New England Journal of Medicine perspective piece and on mainstream media op-eds, and you talk about how it benefits the patients and you give very compelling stories about how it does that, tell us about some of the pushback that you’re getting. What are some of the responses that you received?

Shannon MacDonald: So mainly support. And the pushback is more, I think what Sean explained, is a fear of loss of revenue for in-state physicians, maybe a fear that patients would seek, you know, primary care across state lines. And that’s not necessary. We’re thinking of this as a way to allow patients to access health care for rare diseases.

You know, Kevin, medicine’s becoming increasingly complex. There might be three experts in the country for a rare disease. Why can’t every citizen access them easily? Why do some have to get on a plane? Why can some not access them because they can’t afford to?

So I think that the pushback is a fear of loss of revenue for in-state physicians, and also maybe a fear of not following the rules of the state, that is, for transgender care or for abortion, which has become a major issue after Dobbs. So I do think we faced a little more resistance after some of those laws changed.

Kevin Pho: So Shannon, to follow up on that, in terms of loss of revenue from the state boards, is that a reasonable concern? Are there any studies that have looked at that potential loss of revenue for in-state doctors if you opened up the borders?

Shannon MacDonald: Not to my knowledge, nothing. So, Sean, I think?

Sean McBride: No, I don’t think so. And I think if anything it just opens up additional avenues for collaboration. I mean, I think more common than not is that the patient talks to an out-of-state expert, gets that person’s opinion, and brings it to the local doctor who actually then executes on the treatment itself oftentimes. So I mean, and that’s, you know, to be crass, that’s where the revenue is generated, in the delivery of the treatment, not in the consultation. So I think we both think it’s a bit of a misplaced fear.

Kevin Pho: So Sean, to follow up with what Shannon said, you’re not looking to open it up to all specialties, like primary care for instance. But are you looking to open it up for certain diseases, certain conditions, certain treatments? Like, where do you draw the line?

Sean McBride: Yeah, I mean, this is what we call, the legal term here is, it’s an as-applied challenge, meaning we think it violates the Constitution just in these particular circumstances where an individual is consulting with a specialist, where there are very limited specialists in their region. And so I think that’s a very proper line to draw.

I mean, the big distinction is not just the type of doctors that would be available for these types of consultations, but what precisely would the doctor be doing. Remember, it’s just consultations, it’s not the delivery of care. I mean, we’re not talking about, you could imagine a future where a doctor could remote in from one state and actually deliver a treatment or a procedure in another state. We’re not talking about that at all. We’re not talking about telemedicine really, we’re talking about teleconsultation, just the conveyance of information from one expert to a patient, and that’s it. And that is I think the most important line to draw.

Kevin Pho: So Sean, where are we in terms of the legal challenges? What are the next steps?

Sean McBride: Well, Pacific Legal Foundation has filed two suits, one in New Jersey, Shannon is a plaintiff on that case, against the New Jersey Medical Board, and one against California, I’m one of the plaintiffs on that case. And these are filed in federal district court, and they’re making their way through that process with a variety of motions and cross motions being filed by our team at Pacific Legal and by the state medical boards. And eventually it could go to a trial where we gather some evidence and try to demonstrate to the courts that this is not a dangerous proposition, in fact this is very, very, very helpful for American patients.

Kevin Pho: Shannon, if everything goes according to your plan and these are successful challenges, give us a story that paints your ideal picture, or a scenario or hypothetical case study that is your ideal of what you would like to see.

Shannon MacDonald: So I would like to see access for patients, for consultations or follow-ups for patients who I’ve treated, or you know, some have been treated out of state. And even allowance like, you know, for college students who are seeing a psychiatrist, let them continue with that physician while they travel to college, rather than having to find a new one in a state where no psychiatrist is taking new patients.

So the scenarios I would envision would be continuity of care, access to specialists for rare diseases wherever they be, without the financial toxicity and burden to that patient or family. I think there’s a number of ways where this could be made possible.

And then, I don’t think that patients are going to want to seek like primary care outside of their state, unless they’re living ten miles across the state line, you know, then obviously if they were to do telehealth they’d want to access someone close by that they see in person as well. I don’t think we saw that during the pandemic. I don’t think we would see patients wanting to seek care that’s available to them close by outside.

And similar to what Sean stated, we’re not looking to deliver treatment, we’re looking to give consultations. And then a patient can decide in the comfort of their own home, is it worthwhile to travel to that state for treatment, or can I get all the services I need locally? And those are encounters we had during the pandemic as well, you know, an out-of-state patient seeking consultation for something they thought might be better, but it wasn’t better than what they had at home.

Kevin Pho: We’re talking to Shannon MacDonald and Sean McBride. They’re both radiation oncologists, and we’re talking about their KevinMD article “Why saving interstate telehealth should matter to you.” Now I’m going to ask each of you just to share some of your take-home messages to the KevinMD audience. Sean, why don’t we start with you.

Sean McBride: I mean, I think the take-home message here is that we learned a lot during the pandemic about the utility of telehealth for providing critical information to patients in need, and we discovered that it’s quite helpful, it’s quite cost effective, and it expands access. And we should really be loath to roll those patient rights back.

Kevin Pho: And Shannon, we’ll end with you, your take-home messages.

Shannon MacDonald: Yeah, so I think these laws that were put in place in the 1800s were not intended for the modern era of medicine. I can’t see that many people would think that it makes sense today, in the era of internet and phone, to keep laws that were put in place when those modalities of communication did not exist.

So my thought is that it does make sense to update these laws. Everyone should want it, and we should be providing excellent health care for our country rather than just for our in-state patients. So I’m hopeful to see some changes that will allow access to great health care for everybody in the U.S., not just patients who live in a state where they have access to that care.

Kevin Pho: Shannon and Sean, thank you so much for sharing your perspective and insight, and thanks again for coming on the show.

Shannon MacDonald: Thank you.