The U.S. Court of Appeals for the Third Circuit recently decided in MacDonald v. President of the New Jersey State Board of Medical Examiners that only physicians licensed in New Jersey may practice telemedicine with patients located in New Jersey.
The underlying action was filed by multiple out-of-state physicians who did not hold a New Jersey medical license but sought to practice telemedicine within the state. The District Court dismissed the case outright, and on appeal, the Third Circuit affirmed the substantial holding of the dismissal, with only a minor modification concerning due process.
The First Amendment Argument and the Court’s Holding
On appeal, the court addressed a fundamental question: Does the First Amendment protect the speech of a physician with a high level of scrutiny regarding their right to give advice to a patient located in New Jersey?
The Third Circuit declined to apply strict scrutiny or a strict application of First Amendment rights. In its reasoning, the court pointed to the extensive history and tradition of medical licensing dating back to the sixteenth century, with roots in English common law.
Key determinations from the holding include:
Valid State Interest: The State has a valid interest in protecting the public by administering and enforcing a physician licensure program.
Coexistence of Speech and Regulation: First Amendment protected speech properly coexists with licensing regulations designed to safeguard the public interest.
Content-Based Regulation: While an unlicensed physician has the right to free speech, communications involving diagnoses, treatment advice, and medical consultations are content-based speech regulated to protect the public. In this context, the public interest trumps that protected interest.
Low Burden on Physicians: The court rejected counterarguments and found a very low burden on physicians to comply. Because doctors must be licensed wherever they practice, obtaining a license in an alternate state is primarily an administrative burden, which remains low compared to the State's interest in public protection.
Under this ruling, in order to practice medicine—even in a telehealth setting—with a patient located within the state of New Jersey, a physician must be licensed by the New Jersey State Board of Medical Examiners (BME).
Broader Implications Beyond Telehealth
The court’s First Amendment analysis has implications reaching beyond this specific case. Because the logic and legal reasoning rely on the state's interest in regulating content-based professional speech to protect the public, the decision could extend to other professional licensing boards and other disciplines from state to state.
For additional background on this ruling from Brach Eichler’s Healthcare Law practice, read the firm's alert: Third Circuit Upholds New Jersey Physician Licensure Requirement for Provision of Telemedicine to New Jersey Patients.
For questions about this topic or this segment, contact Keith J. Roberts directly:
Firm Website: BrachEichler.com
Case Decision: Access the full text of MacDonald v. President of the New Jersey State Board of Medical Examiners.
Disclaimer: This post is intended to provide general information, not legal advice. Please contact Keith directly if you need specific legal advice.