Can the non-licensed healer practice legally, including giving nutritional and weight loss advice?

Can the non-licensed healer practice legally, including giving nutritional and weight loss advice? 

How the Law Configures Non-licensing Healing

This is the question that launched me as a healthcare lawyer.

I was in my third year of practice at a large Wall Street law firm, rotating through its banking, securities law, and mergers & acquisitions departments.  By day, working on hundreds of pages of documents – securities disclosures, banking documentation, M&A stock purchase agreements, investor questionnaires, and due diligence lists.  On weekends, studying at an interfaith seminary in New York City; and every couple of weeks, going away for five-day intensive study sessions in energy healing.

I had a part-time, adjunct faculty position teaching Legal Writing at Brooklyn Law School.  As one of legal research and writing assignments, I gave the students the hypothetical of a non-licensed healer and asked whether his methods could be considered the unlicensed “practice of medicine.”

This little homework assignment was the genesis of Complementary and Alternative Medicine: Legal Boundaries & Regulatory Perspectives, which found its way to John Hopkins University Press (a mainstream academic medical publisher), and several successor titles.  Ultimately, the journey took me to teach healthcare law and policy at Harvard Medical School, and then to my own law firm.

During those precious times studying energy healing with Barbara Brennan (author of Hands of Light), I grew convinced that her understanding of the human energy field (HEF as she called it),or biofield as it is known by the National Center for Complementary & Alternative Medicine (NCCAM) at the NIH, and is relation to the disease process, provided revolutionary insights for humanity.

Essentially, Barbara posited that the ultimate source of disease is consciousness, and that we can trace belief systems and past experiences (and even past life and archetypical experiences) through the human energy field to their ultimate expression in biophysiology.

Barbara’s work finds resonance in other fields – for example, the notion that behavior as well as thinking affect gene expression – but let’s leave theory behind here and turn to the legal question of how non-licensed healers function in the world.

One of my experiences during the years studying with Barbara Brennan, was attending a meeting at Columbia Presbyterian where a healer named Julie Motz was working to improve outcomes of cardiac surgery patients by using energy healing to facilitate communication between the surgery patient and the incoming, donated heart.  Chairing the meeting was a young, talented surgeon bold and open-minded enough to facilitate the exploration under his auspice – an inquisitive, intelligent doc with whom I shared a brief bond and inspiring conversation, before he moved into his television career and became known as Dr Oz.

Historically, the AMA influenced who could legally practice

To write Complementary and Alternative Medicine: Legal Boundaries & Regulatory Perspectives, I went back to the history of medicine in the U.S.  It turns out that the American Medical Association was deeply enmeshed in legislative politics. The question of what constitutes “medicine,” and who can legally practice, was of deep interest to the AMA.  Political battles were fought to draw the line so that the principles and practices espoused by the AMA could be legally enshrined.

Today, every state prohibits unlicensed practice of “medicine,” and defines “medicine” in broad terms such as “diagnosis” and “treatment” of any “disease.”

The legal upshot is that healing practitioners other than medical doctors had to fight for a legislative carve-out, defining a more limited scope of practice specific to their profession.

Non-licensed healers have to either “fly below the radar,” or, live in a state where there is a legislative carve-out for their activities.  The original state providing such a legal carve-out for the unlicensed healer is Minnesota–hence this is sometimes known as the Minnesota Model.

California has adopted the Minnesota Model in its own version, which is known as SB 577 and is now codified into the Business & Professions Code.  Under SB577 and similar statutes in a variety of states, non-licensed healers can offer services so long as they disclose their training and methods, and do not purport to diagnose or treat disease.

Healer Kickbacks?

Beatrice asked our law firm what we thought of an arrangement she had with Harville the healer, where nationally famous Harville would send her five clients a week, and in exchange, would receive 10% of the gross revenues from her healing practice.

Our first question was about the legality of non-licensed practice in Beatrice’s home state.  If there was an SB 577 or Minnesota Model kind of statute, she would have a safer legal umbrella.

Although of course there would still be risks of unlicensed practice of medicine, depending on what Beatrice did, said, and claimed.

Our next question was about the 10% royalty.  Such arrangements would normally be prohibited to healthcare licensees.

Non-licensed healers are, by definition, not licensed.  But if the prohibition against kickbacks and fee-splitting refers to a division of statutory Code that references both medical doctors, nurses and other allied health practitioners, chiropractors and acupuncturists, and others, then non-licensed healers might be included.

Non-licensed practice of psychology and nutrition

Even if a non-licensed healing practitioner complies with an SB 577 type of safe harbor, there is also a risk of unlicensed practice of psychology and nutrition.

For example, modalities such as hypnotherapy might be reserved by statute to licensed psychologists. The nuanced language of the statute is all important.

Nutrition is another area that can vary depending on whether a particular state has mandatory or title licensure.

Mandatory licensure means that one needs a license to do the activity (such as give nutritional advice).  Title licensure means that one can do the acitvity (such as giving nutritional advice), but needs a license if he or she uses the title (such as nutritionist).

For example, take a look at this statute, which prohibits: “engaging in dietetics or nutrition practice.”

Would someone like Beatrice be engaging in dietetics or nutrition practice when she recommends dietary supplements to a client?

(5) “Dietetics or nutrition practice” means the integration and application of the principles derived from the sciences of nutrition, biochemistry, food, physiology, and behavioral and social sciences to provide nutrition services that include: (A) Nutrition assessment; (B) the establishment of priorities, goals, and objectives that meet nutrition needs; (C) the provision of nutrition counseling in health and disease; (D) the development, implementation and management of nutrition care plans; and (E) the evaluation and maintenance of appropriate standards of quality in food and nutrition. The term “dietetics or nutrition practice” does not include the administration of nutrition by any route other than oral administration and does not include the issuance of orders for laboratory or other diagnostic tests or orders intended to be implemented by any person licensed pursuant to chapter 378.

It seems that “nutritional counseling in health and disease” could be problematic.  But perhaps Beatrice could argue that she is only counseling clients into wellness, and not about health and disease.

The more we learn about the role nutrition plays in maintaining health and even reversing disease, the more slippery  the line between ‘wellness coaching’ and disease care.

Let’s go back to these other two definitions:

(3) “Nutrition assessment” means the evaluation of the nutrition needs of individuals and groups based upon appropriate biochemical, physical, and dietary data to determine nutrient needs and recommend appropriate nutrition intake including enteral and parental nutrition.

(4) “Nutrition counseling” means advising and assisting individuals or groups on appropriate nutrition intake by integrating information from the nutrition assessment.

These definitions seem to aimed at scientific approaches to nutrition and diet based on principles taught to dietitians and nutritionists who get licensed by the state, and not to someone who incorporates advice about dietary supplements or makes suggestions about weight loss based on lifestyle.

On the other hand, all these pieces of the puzzle fit together: whether you have mandatory or title licensure; the statutory definition of the profession and professional practice; and subsidiary definitions such as those of “nutritional counseling” versus, for example, “nutrition assessment.”

When the legal rules seem crazy, you can always consult with a healthcare lawyer about how to configure your practice.

The landscape of healthcare practice is changing from so many angles.

Telemedicine, mobile health, medical apps, virtual reality, and wearables are changing healthcare from the tech side – moving medicine out of the hands of the doctors and into the brain of the consumer.

From the other end, energy healing and deeper understanding of consciousness are morphing perceptions of who we are in the cosmos, and how our beliefs, thoughts and emotions regulate and ultimate co-create our the future of our physical embodiment.

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Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

Comments
  • Huguette Lelong
    Reply

    Hello Michael,

    I just read your really interesting article regarding the disclosure statement for nutritional consultants in California and I was just wondering if you had a similar one for the state of New York. Could you share please?

    Thank you.
    Best regards,

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