Tips for Structuring Healthcare Practice as an Unlicensed Practitioner

When Harry met Sally

Harry met Sally because Harry had migraines, sinusitis, chronic fatigue or tiredness of unknown origin, depression or just an emotional heaviness, or maybe because he needed help with relationships, finances or his sex life.

Sally did not have a healthcare license in medicine, chiropractic, social work, psychology, acupuncture, massage therapy, osteopathy, or anything else.  But she did have a PhD in neurobiology and had a certificate from the Peaceful Light School of Healing.  There she had studied:

  • Reiki
  • Some other form of energy healing or healing touch
  • Hypnotherapy, hypnosis, NLP (neuro-linguistic programming)
  • Some kind of mind-body, spiritual therapy
  • Neurofeedback
  • Nutritional cleansing and lifestyle techniques
  • Past-life clearing
  • The Jedi religion

Sally contacted our law firm because she wanted to know about whether she could practice any of these modalities in a way that would not incur too much legal risk.

Before contacting our law office, Sally had surrounded herself in a field of pink light and called in her guides to help her perform the correct Google search.  (Note: names are fictionalized and details are dramatized to make the blog post interesting; however, this one detail is true.  One of our clients told us that he had asked his Guides and was told to type in the Google search bar, Michael H Cohen).

This memo follows up on our call and the questions you emailed concerning your practice of neurofeedback and other modalities as a non-licensed practitioner of the healing arts in California.

And now back to our legal advice for Sally.

Unlicensed Healing Practice is a Palimpsest

Because Sally has a PhD, it’s appropriate to throw a word at her—palimpsest.  Says Wikipedia:

In textual studies, a palimpsest (/ˈpælɪmpsɛst/) is a manuscript page, either from a scroll or a book, from which the text has been scraped or washed off so that the page can be reused for another document

How is the law of medicine and medical licensing a palimpsest?

  • Unlicensed practice of medicine is a crime, prosecuted by the State, as opposed to a civil lawsuit.
  • The laws defining the practice of medicine are very old. We’re talking two centuries back. The books are not in the Jedi library, but they do exist in manuscripts like those that write Congreff instead of Congress.
  • Even “medical freedom” laws coexist alongside these old laws. For example, while SB 577 (as codified into the Business & Professions Code) provides a safe harbor for non-licensed practitioners, it does not authorize unlicensed practice of medicine.  Risks remain for practitioners.

See our prior posts:

Is Your Medical Assistant Practicing Medicine Illegally?

Is your medical assistant practicing medicine illegally?  Understand the difference between medical assistance and medical practice.

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?

These 3 integrative medicine legal trends can make or break your integrative medicine practice

Integrative medicine is morphing from an extension of complementary medicine and/or intrusion into conventional care, into everyday prevention and wellness. Find out how three integrative […]

Is practicing hypnotherapy legal in California?

Is practicing hypnotherapy legal in California? That all depends on what the practitioner is doing and claiming.

Is yoga therapy unlicensed practice of medicine?

Yoga therapy brings the art of yoga to therapeutic issues and is a natural extension of yoga for wellness and general health; but when does yoga therapy cross the line into unlicensed practice?

Who owns neurofeedback (or any therapy)? Psychologists, psychiatrists, non-licensed NF practitioners, or everyone?

Neurofeedback has been shown effective for treating of a variety of physical and mental disorders, but can or should neurofeedback (or any promising therapy that can be self-administered, or […]

Neurofeedback Laws & Licensing: Unlock Brains’ Potential But Be Legally Safe–Part 1: Unlicensed Practice

Who can legally practice neurofeedback—only licensed professionals—and what laws govern neurofeedback practice?

California medical board arrests man for unlicensed practice of medicine

California and other state medical boards still run undercover investigations for unlicensed practice of medicine.

We’ve canvassed the energy healing legal frontier extensively before.

Diagnosis and Treatment

Top guidance to Sally includes:

  • Avoid diagnostic and therapeutic references. Avoid medical diagnostic and therapeutic labels (such as, for instance, “insomnia”).
  • Have legal counsel draft an SB 577 consent form to comply with the requirements of the statute, and incorporate disclaimer language to help mitigate risk of civil lawsuits from private plaintiffs.
  • Do not take a medical history. Asking about medications and medical treatments can be an enforcement red flag.

The statutory definition of practicing “medicine” is broad. California law provides that an individual, practices “medicine” when he or she:

practices or attempts to practice, or … advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or … diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person.

California law also explains:

Whenever the words “diagnose” or “diagnosis” are used in this chapter, they include any undertaking by any method, device, or procedure whatsoever, and whether gratuitous or not, to ascertain or establish whether a person is suffering from any physical or mental disorder. Such terms shall also include the taking of a person’s blood pressure and the use of mechanical devices or machines for the purpose of making a diagnosis and representing to such person any conclusion regarding his or her physical or mental condition. (emphasis added)

”These Droids” might be your best Defense

Is the best defense a good offense—or one of those Jedi shrouds like the one Obi-wan wore?

These droids are not the ones the Empire is looking for, he said.

Our goal is to try to mitigate risk. We cannot eliminate it.

Given the above definition and its broad interpretation in California, it is always possible that enforcement authorities could read any questionnaire as referencing disease symptoms, even if the language is as generic and informal as possible.

That is why we recommend avoiding diagnostic and therapeutic language, and avoiding forms such as medical history questionnaires, which suggest that the practitioner is trying to take the place of a medical doctor.

Water down the language

Bland is Beautiful.

That is why Obi-wan looks more like a Franciscan monk in his one-piece shrouded garment made of simple yak skin and rope (or something like that) than the very dapper professor in X-Men.

One risk mitigation is to water down the language of an intake form (if Sally must have one), and reference energy, balance, and restfulness—as opposed to, say, chronic fatigue, vertigo, and insomnia.

Even here, someone could say that measuring quality of sleep is a surrogate for addressing insomnia or that “reactivity” is a term suggestive of the practice of psychology (a licensed profession).  There is no such thing as risk-free practice.

As another risk mitigation technique, it might be better to have a generic system such as Terrible, Good and Great as opposed to a scale of 1-10, as the latter could suggest medical methodologies.

What about HIPAA and patient medical privacy?

Yes, Sally must still take care to protect the privacy of those clients she sees.

Assuming she is not billing insurance, Sally is not under HIPAA.  Nonetheless, state law requires reasonable safeguards to protect privacy and security.  Some explicitly apply; others are prudent to follow.  In general, these obligations are less onerous and less specifically spelled out than under HIPAA.

For example, the California Confidentiality of Medical Information Act (CMIA) contains a broad definition of “medical information:”

Medical information” means any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care … regarding a patient’s medical history, mental or physical condition, or treatment.

Condition” is a broad term, even if Sally is not considered to be providing “treatment.”  In addition:

Patient” means any natural person, whether or not still living, who received health care services from a provider of health care and to whom medical information pertains.

One could argue that you are not a “provider of health care,” since that term references individuals who are “licensed or certified” under Division 2 (Healing Arts) of the Business & Professions Code, and SB 577—as codified into Division 2—is really more of an exemption from the prohibition against unlicensed medical practice.  Nonetheless, CMIA Section 56.06 states that any business “organized for the purpose of maintaining medical information … in order to make the information available to an individual … for purposes of allowing the individual to manage his or her information, or for the diagnosis and treatment of the individual,” is also considered a “provider of health care.”

Section 56.07 requires that, “upon the patient’s written request,” any entity “that compiles or maintains medical information for any reason, shall provide the patient, at no charge, with a copy of any medical profile, summary, or information” maintained.

In addition to the above requirement, the main obligations of a healthcare provider under CMIA include:

  • Not disclosing the medical information without the patient’s authorization.
  • Creating, maintaining, preserving, storing, destroying, or disposing of medical information “in a manger that preserves the confidentiality therein” (Section 56.101).

Thus, while it is ambiguous as to whether CMIA applies to Sally, the above obligations could be considered ‘best practices’ for her.

Apart from CMIA, California Civil Code, sections 1798.80-1798.84, imposes security requirements for businesses generally.  Requirements include:

  • A business must take reasonable steps to dispose, or arrange for the disposal, of customer records containing “personal information,” by (a) shredding, (b) erasing, or (c) otherwise modifying the personal information to make it unreadable or undecipherable.
  • A business that “owns or licenses” personal information about a California patient must “implement and maintain reasonable security procedures and practices appropriate to the nature of the information,” to protect the information from unauthorized access, destruction, use, modification, or disclosure.
  • A business that discloses personal information pursuant to a contract with a third party must require by contract that the party third implement and maintain reasonable security procedures and practices.

At a minimum, it might be worth putting some basic, written policies in place to document that Sally has done thinking about reasonable safeguards for your practice.

Other Legal Risks

Sally has many other legal risks to canvass.

For example, is the informed consent form that her cousin provided her, which he got from some professional group or Facebook group (or maybe it was one of the Jedi books), any good?  Or does it also pose legal traps?

Sally also got a HIPAA Manual from a medical doctor friend – maybe she should use that?

Sally heard from someone that as long as she is “under” a doctor (what, like under an umbrella on a rainy day?), she should be legally okay – is that true?

What about a dentist?  (What about a dentist?)

Our healthcare attorneys understand legal rules governing healthcare practice.  There are many risks and legal obstacles within the licensing laws governing medicine and other professions. Contact our healthcare lawyers to get information about ways to practice that are mindful of legal rules that can dash practitioners against the enforcement rocks.

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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.

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