They seek legal advice on how to set up a website for an online program, and manage legal and regulatory risk.

Telemedicine vs Telehealth

We’ve been through this scenario before.

Although the terms telemedicine and telehealth can be used interchangeably, let’s draw a distinction here between practicing medicine on one hand, and giving health education and information on the other.

With more and more healthcare services going online and mobile, these old distinctions are blurring, if not eroding.

Here are some legal hot points:

• Using diagnostic categories.

The law defines “practicing medicine” in terms of diagnosis and treatment of disease.

That someone is “practicing medicine” is a case a prosecutor can make out, if a practitioner uses diagnostic categories (such as, for example, even “obesity”).

The challenge is staying clear of diagnostic categories, particularly when the patient brings it up.

• Purporting to treat disease.

This one is likewise challenging.  Using non-therapeutic language is important, and so is the activity.

• Name of the enterprise.

Some operations include the name “MD.”

Enforcement is hard to predict.  On one hand, this is a branding effort, not intended to trigger any legal consequence.  On the other hand, if an MD is CEO of the healthcare venture, and the MD’s name and credentials are used to market the telehealth enterprise, then the venture’s claim to the title “MD” could be used as part of the case for practicing medicine unlawfully—or corporate practice of medicine.

• Use of the MD’s title.

The title, MD, is reserved for licensed medical doctors practicing medicine.

It may be prudent to disclaim use of this title; to be cautious about its use; and to clarify for the consumer that while the MD is a credential that the CEO (or other significant person in the organization) holds, the venture is intended to provide information and education only.

By now, this disclaimer of “education and information” is fairly standard.  But the activities should be consistent with that disclaimer.

Corporate Structure: LLC or Professional Medical Corporation

The legal lines are usually fairly clear: if professional practice is involved (for example, professional medical practice), then the entity must be a professional corporation (for example, a professional medical corporation).

If, on the other hand, if health information and education are involved, then the venture usually can be a corporation or LLC.

Investors who are not healthcare licensees can participate in general corporations or LLCs, but not in professional medical corporations.

Fee-splitting and anti-kickback considerations shouldn’t apply, generally, if services covered by healthcare licensing laws aren’t at issue.  One would argue that the MD is not functioning as an MD, but merely offering health and wellness resources.

Alternative model – MSO

If the healthcare licensee (let’s say MD) is going to be providing medical services, then an alternate structure is to create a medical management services organization (MSO) to provide management, advertising, and marketing services to the professional corporation.

The website might, for example, charge an advertising fee for services to the medical corporation.

We’ve covered MSO’s extensively on this blog.  See, for example:

·         CORPORATE PRACTICE CHALLENGES MEDICAL MANAGEMENT (MSO) ORGANIZATIONS IN NEW YORK AG ACTION.

·         CAN AN MSO CONTROL PHYSICIANS GIVEN CORPORATE PRACTICE OF MEDICINE?

If the MD wants to use the “education and information” model instead, then the MD (or other licensed healthcare practitioner) should avoid consultations with individuals.  The idea here is to keep the health education website legal.