Webinar: How to Make Your Healthcare Business Survive & Thrive in an Uncertain Time

Webinar: How to Make Your Healthcare Business Survive & Thrive in an Uncertain Time

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[Michael H. Cohen]

Hello everyone, and welcome to our webinar, How to Help Your Healthcare Business Survive and Thrive in an Uncertain Time, Through Telemedicine.

First some really brief housekeeping. In this webinar, nothing any persona says is legal or medical advice or opinion for your situation.

We are only sharing information and education. And last, if you have questions please use the Q&A feature in your screen. We’ll have a few minutes for Q&A at the end.

With that let’s get started.

Today my guest is Mima Geere, MD.

Dr Geere trained in Clinical Pathology Informatics at UCSF. Then she was medical and product director at JumpStartMD and Genova Diagnostics. She served as Staff Physician at the CHOPRA center in Carlsbad, California. So you can see her experience is very multi-disciplinary. And she’s been on faculty at the Institute of Functional Medicine, the IFM.

Right now, Dr Geere serves as founder of Mimansa, an innovative online clinic that combines functional and ayurvedic medicine. Such an unusual combination. With all of her training, Dr Geere has important clinical information to share about ways to boost our immune system. And she will be sharing that information in another platform. I want to say in particular she has a focus on lung health.

So I encourage you to listen to her today and to follow up with her on her clinical programs as well. Today she’s here to talk for a few minutes from her perspective about her experience, transitioning from a strictly brick-and-mortar healthcare clinical to a more entrepreneurial path, that encompasses both an online clinical practice and a healthcare telemedicine start up.

And I’m very excited and pleased that she’s here with us.

Before Dr Geere presents, let me talk to you a little bit about some substantive legal developments in telemedicine. Because I’m sure many of you are wanting to move your healthcare practice or your healthcare business to the next level. And we wanted to give you a combination of substantive law developments and practical advice from a healthcare practitioner and entrepreneur.

So from my perspective, the legal rules are changing so quickly, every day there’s something new. And I’d like to tell you about a couple of legal developments that are important as you’re moving, or moving more thoroughly online.

Number one. Many states have relaxed or done away with the requirement of a good safe in-person exam before prescribing. And this was always a huge barrier.

You had to have boots on the ground, typically a MD or a PA or a nurse practitioner. And many people are getting in trouble because they didn’t have the good faith exam, or they had done the exam but it was done by an RM. And it turned out that the patient was an undercover investigator. So now at least in California, that requirement has been eased.

You need to know that there are still some restrictions, because medical boards can always look to things like the standard of care, and they can say, “Well the standard of care wasn’t completely met.” So while some barriers have been eroded it’s still important to say mind your p’s and q’s to look at some of the more nuanced rules, and really to have a risk assessment.

Because if one rule doesn’t come into play, there are other rules that can be problematic.

Secondly, the Federal Department of Health in Human Services, or HHS, Office of Civil Rights, known as OCR, has relaxed its standard so that providers can use remote communications, even if they’re not hit by compliant. So as long as the communications are private and not public-facing.

For example, typically I mean depending on how you use them, Facebook live would be public-facing, Facebook messenger video chat, Google hangouts video, or Skype would be… I think I said that in reverse. So Facebook live is public facing. Facebook messenger video chat, Google hangouts video, or Skype, typically would be private-facing.

Providers who use these platforms, should notify their patients that these third party applications introduce potential privacy risks, and also providers should enable all available encryption privacy modes when using these applications. Now again, you have the relaxation of the rules. It’s great that health and human services is not going to be a stickler about HIPAA during the epidemic.

But, states often look to HIPAA as a gold standard. So the conservative legal advice would be to still use HIPAA as a gold standard. It’s not necessarily a black and white, green light here.

The third thing I’d like to talk about is that Medicare has relaxed some of its reimbursement rules for telehealth, and CMS has lifted requirements that healthcare professions hold licenses in each state in which they provide services.

So if CMS and Medicare are not going to look at that, and if you’re interested each of these rules has a myriad of details, and these are things that we can go into more deeply in a legal consult. But if you want to do a quick google search, CMS has a fact sheet, on the relaxation on reimbursement rules for telehealth and on the licensing rule.

Also important, you still have to look at licensure on the state law level. Now some states have temporarily waived their licensure requirements. And here, if you’d like to see a current list the Federation of State Medical Boards, has created a table listing current state developments.

Sixth, apart from the telemedicine laws, there are all sorts of great land shifts in the law at the state level in response to the pandemic. For example, only a couple of days ago the New York Governor, Andrew Cuomo, issued executive order 202.10. And this executive order provides that physicians, nurses and others who work or volunteer to treat patients for COVID-19, may not be sued for negligence.

So there’s some good news with regards to malpractice. In fact, the order says that there’s no civil liability for treating patients, volunteering or working in the COVID-19 arena. However, there’s still a potential liability for gross negligence. Gross negligence is a higher standard, so it’s an allowance, it’s good news for healthcare providers.

I’m not going to respond to all of the questions, but I’m seeing someone asked about slides.

So for this first webinar we don’t have slides. But we will have the recording so you’d be able to hear the information again assuming the recording goes well and comes through. And then last, I’d like to direct you to our blog, it’s at cohanhealthcarelaw.com/blog. Among other things we recently posted an article, written by Barbara Zabawa.

Barbara is of council to our firm. And she also has her own practice in the mid-west and she teaches law. And she’s an expert on health and wellness law. Her post is entitled, Answers to Meet Your Most Burning Employment Law Questions About COVID-19. People have been asking things that are very practical but for example, “If an employee gets exposed can you tell other employees? Are you violating HIPAA if you do? Or do you have an obligation to tell other employees?”

And some of the answers are in other laws like the ADA, The Americans with Disabilities Act. So, that law post goes through those questions. Now I know I covered a lot very quickly, this is just to give you a taste, an overview, of the many different areas of law that are all coming to bear on telemedicine practice. Some are being relaxed and some are still subject to enforcement and being enforced strictly.

So we have to view everything as a whole when we look at a particular practice. What I’d like to do now is pivot a little bit and I have the great pleasure of re-introducing Dr Mima Geere, and since she’s been through the transition to moving everything online, she’ll talk to you about where she’s been innovating, inverting her practice and business into a digital platform. So with that, take it away Mima.

[Dr. Mima Geere]

Thank you Michael.

Thank you everyone for joining us today. As we’re talking about I think a really pertinent topic, particularly for those of you whose clinics have been affected by the coronavirus, and whose businesses have been affected at this really unprecedented time. We’re all facing this financial strain right now, and at the same time we have a high need in the medical environment to be able to access more medical care.

So, I’m glad we’re able to speak to you about this. As Michael said, I’ve had a bit of an unusual path in entrepreneurship. Being a physician I trained in a very traditional medical setting in laboratory medicine. Which isn’t always a clinical environment to begin with, but I wanted to create a new type of practice that I had a vision for. And I wanted to bring this into fruition in a way that I think is very much needed in today’s world.

Particularly today, when viruses are threatening our health, and our healthcare system and our clinics, and our hospitals are completely flooded globally. And when I think about this and looking at natural ways that we can come up with to boost our immunity, and re-boost our immune system, and also stay healthy. And this is really on everyone’s mind right now, because beyond what we can do in terms of controlling the contamination and flattening the curve, there is also the question of, “What can we do to support those who are on the healthier side?” That might not be chronically ill, that might not be elderly, and help them through this challenging situation that shine up and boost their immune system.

So in my practice I just want to share with you my experience that I had going from a brick-and-mortar clinic model, into a telemedicine practice. And I did this over the course of the first couple of years of opening up and I’ve learned several things. And some of you who already have telemedicine practices, who have already done that kind of conversion have likely faced some of these questions yourself, but this is also speaking to the new provider who is questioning, “Where should I start, in today’s landscape? How do I get started with seeing patients in a private setting?”

And, “What should I be thinking about?” And also speaking specifically to the integrative practice provider and what they should be thinking about in starting a new business. So here are the three things that I think, I wish that somebody would have told me, or that I would have known when considering taking my practice online. And I’d like to share them with you today, and perhaps they might help somebody. They might help you avoid some of the mistakes that are commonly made, and bypass some of the expenses that you will often run into when you’re starting a practice.

So the first thing to consider is the cost. The actual startup cost in starting a practice. And I’m going to do a little bit of a comparing contrast for you as you’re thinking through both models. A brick-and-mortar traditional model, a physical space versus a telemedicine model, thinking about bringing a practice into an online setting. So from that perspective, cost is something that most people don’t really think about, or talk about.

There isn’t a lot of information about clinical cost models out there. Yet doctors are the one often put into a business situation having to make these decisions, particularly as a solo provider coming out into practice in an integrative space. So, absolutely doctors make more income than the average person. However, it’s hardly enough to sustain the cost of a full practice build out.

And for those of you, who have been thinking about starting a brick-and-mortar practice, you might think it seems pretty easy, you imagine you might just rent a space, hang up your shingle, and start seeing patients. Right? They’re going to just start flooding through the door, because you’re there and you’re there to provide care. However, what you don’t consider carefully, are all the costs that go into each of those pieces.

For example, there’s the cost of rent and utilities itself, that’s often equivalent to a second home. And, there’s the cost of the general upkeep fees. And the addition, if you want to do a build out, if you want to think about OSHR compliance. Right? Because that’s also something you need to think about when you start a clinic is, “How compliant do you need to be in terms of the practice that you have?”

So, in addition to just the actual build out and the upkeep, you’re also looking at any equipment that you might need to have. And sometimes initially there is a bit of a remiss sization of what you want in terms of the equipment and often a big pitfall people run into is they are oversold, and they overbuy. Particularly when they’re starting a practice.

Even something so simple as desks and chairs, and computers, and adding in your printer. If you want to provide lab draws. You’re going to have to think about setting up a space for that. Lab space, and office supplies. If you have a traditional practice you might also be thinking about purchasing medical benches, and all of the medical equipment that goes along with that.

Now that’s a lot for a single new practitioner, even if you have your large amount of money saved in order to do this. Now on the other hand, let’s envision the telemedicine model of the same clinic. So consider the online setting. The costs are substantially less. The main cost there is the time, the cost of your time in setting it up and putting it all together. There are the software systems that you may choose and use.

And then there’s the market and the sales piece, which is a big piece which I think everyone needs to consider, particularly in the online setting. You don’t really even need to think about renting a space. The second big question is, “How do you get your patients?” How are you going to market yourself in that online setting? Or even in that physical office setting? They’re both relevant.

So at the end of the day the first thing after you’ve set up your space, whether it’s online or if it’s in-person, a physical space, is you need to get that following of patients through that door. Whether it’s a virtual door, or it’s a physical door? And in this case we’re talking about the digital space. The traditional online setting is slightly different when it comes to customer acquisition, or bringing patients through that door.

However, it’s not all that different. If you think about it, the main difference is the geographic barrier. So the traditional brick-and-mortar practice, you’re limited to the physical space, and you’re restricted by those that are in your vicinity. Be it your township, your local community or your city. Right? You’re going to be able to market to those who can reach you, physically. That has its pros and cons. So people tend to get to know you very easily.

You just show up, you network. You say hello to your neighbors, who get to know you, you do some talks, and that’s how you build your presence. You might need to do some basic marketing, but it’s going to be very different from what you need to know about digital marketing. In the online setting you have a broad reach, essentially the entire web customer base is your potential opportunity.

Yet, you’re essentially invisible. So you’re restricted by the people that you can reach, and that’s often limited by some of the legal barriers that Michael has spoken about and will continue to speak about. So, it’s these licensed restrictions that have really kept us restricted in the telemedicine space, and it’s great to hear that this need from the virus has actually opened up some opportunity.

But at the end of the day, the patients are seeing you in both settings. And it’s based on your actual following. So the first step is, whether or not you’re on line or whether you’re in a physical space, is to build that following. In order to successfully get and keep your patients, you want to do events. You want to get to know people and start to build that mailing list, whether it’s through online marketing and videos, or if its in-person events.

Because people need to know who you are, and in time they’re going to build the trust. And eventually that’s going to convert into that patient following that you need. You can also retain this following through frequent communication with them. And that’s where newsletter becomes very important. And that goes for both scenarios. Whether that’s in-person or online. Building that list and maintaining frequent communication is critical.

And then there’s the aspect of retention, which is a whole other layer that needs to be considered when you’re seeing patients in your own practice. Particularly as a solo provider that’s building a business, and that might be outside of the insurance setting. So how do you keep the patients when you’ve spent so much time and energy acquiring them? How do you engage them?

In some ways it’s a bit harder to do this online. Although a regular newsletter helps, there’s definitely the need for recurrent follow ups. And often patients get lost after they’ve done their initial follow up with you. Particularly in the integrative space. Remember, they aren’t coming back for a common cold. They often have this complex question or condition, where you’re essentially designing a customer treatment plan. And it’s up to you how you do that, and how you layer out their treatments.

This is where many of the ideas Michael is discussing regarding health coaching, become more relevant. So health coaching creates an opportunity for you to stay engaged with your patients over a period of time. Now, ideally you would stay engaged with your patients over at least a period of a year or two. Particularly when you think about that high cost of acquiring them. This is also particularly relevant for your medical care. You’re not going to do wonders in terms of somebody’s health in one or two visits.

You might be able to give them, or direct them with a treatment plan, but you’re not able to ensure that, that’s actually going to lead to measurable changes in their health. Overall, overtime. So when you start your new practice, definitely consider the coaching model and initially you might consider being a coach yourself, as a new provider. In time, you could actually consider scaling that and partnering with a health coach or a nutritionist to start to help support all the patients that come through the door, over a long period of time as they come through your virtual clinic.

So these are just a few ideas of how to get started when you’re thinking about both models. Whether it be a brick-and-mortar typical traditional model of a clinic, and also an online clinic that you might consider envisioning as you’re facing this constraint. Which is that physical clinics are now being flooded with a lot of the current coronavirus cases. So with that, I’ll let Michael take over, and I believe we’re going to open up for some questions.

[Michael H. Cohen]

Great. Thanks so much, Mima.

So, before we get to Q&A I just want to say that… I want to preview what we’re going to be offering in the next couple of weeks. So, we’re going to be holding office hours. The idea is that I’ll get on the phone for 30 minutes, and I don’t know whether this will be weekly, or bi-weekly or periodically, but we’ll send you an announcement. We’ll have office hours and it will basically be an open forum for Q&A or discussion.

And the idea is to help propel your healthcare practice, your business forward in a massive way. I don’t know how you are feeling, when the news first started coming out, I mean periodically it is very heavy. And I think that we’ve all seen a lot of community resources and forums and ways to keep ourselves in-touch, connected, and motivated and inspired. And I think that we as a law firm can also offer that platform. Where people can connect and trade ideas, and talk about things.

One thing that I can contribute to the office hours, is I could perhaps help to dispel some myths that are floating out there about what you can and can’t do. And what I found doing many, many legal strategy sessions, many, many client consults, is that people come with preconceived notion. We can think about the law in two ways. One way is, sometimes the law is black and white. For example, the speed limit it 55 miles an hour. So if you go over 55, you’re over the speed limit and probably you’ve violated some provision of municipal code.

Maybe it’s the vehicle code, and you should know that because you probably had to answer that on those little printed booklets, right? To get a driver’s license a long time ago. Back in the days when they had those. I think it’s all probably computerize now. But, you also make a judgment call, and that is that you can go up to a certain number of miles an hour over, and you’re probably not going to get a speeding ticket. But the law there is very clear. Anyone who violates the speed limit, can get a ticket.

And then there’s enforcement. And we do have some laws that are like that, but most of the time they’re much more ambiguous. And so what we’re doing is we’re interpreting, we’re reading them, we’re trying to figure out how these rules are going to come into play for a particular situation. And a lot of times, as I was mentioning before, we’re looking at combinations of rules, and how they might potentially affect you.

So if you’re not required to do one thing, I mean is the standard of care going to become an issue? And if not, is it going to be HIPAA, if it’s not HIPAA is it the kick-back rules? So one of them is, that I’m going to talk about today, is people often have this formulation. As long as you do such and such, then you’re okay. And that’s a very dangerous formulation because it’s black and white, but going in the direction of a permission.

And so, one of the myths is that, as long as you do something within a membership model, you’re protected by the US Constitution. Does that sound familiar? Has anyone been championing that, or had that pitched to them? So, my belief is that, that’s a myth. Now we do craft membership models for concierges medical practices. But, a membership model in itself is not carte blanche to get around fee splitting star, can I kick back HIPPA standard or care, or other important legal rules that we address, day-in and day-out with our clients.

So, that’s one myth that I wanted to address. And I want to say the office hours, we will have Q&A, but they’re not legal advice. For legal advice you need a legal consult, just as in healthcare. There’s a difference between a webinar where you get information and education, and seeing the doctor individually. And by the way, that might be something else that helps you. Because as you develop your own digital offerings to people, know that it’s okay to give information and education. But you have to be careful about giving individual advice because that could get into the area of diagnosis and treatment.

And it’s also helpful to offer a big disclaimer at the end, which everybody pretty much does anyway. Okay. So what we do, let me just take a second, just take a peek at the Q&A here. So Mima there’s one here that maybe after all… I’ll do a little more and then you could pick up on the one about the strategy of using the telemedicine tool. And someone else is asking about legal forms they can apply. Well there’s so many different kinds of legal forms, but I would say that when we draft an informed consent for you, we’re going to have telemedicine language in the informed consent form.

That basically does what informed consent is supposed to do, which is to advise patients of the risks, benefits and alternatives to a particular way of caring for them, in this case only seeing them online. And those things should pretty much be standard, and we should be seeing them everywhere. So let me talk about, if you want legal advice, we do have a very low barrier to entry, which we call the legal strategy session.

In a legal strategy session, we take 45 minutes to do some research and analysis, and then we get on the phone with you for another 45 minutes, we assess your situation, step-by-step and we give you some key recommendations. In order to provide some more substantive legal guidance, education today I want to give you an example, just a mini, condensed version of a legal strategy session.

So, today, one of the questions we got before the webinar was this:

“I have two questions. I’m licensed in New York and California, I have the PLLC and NY.” By the way you don’t know who this is, so I considered it a question that we’ve actually received a lot of different ways from different people. “Can I do telemedicine in California, but as a sole proprietor or do I need another entity such as a PC or PLLC, for California? And two, if I want to offer group coaching and not medical services through my LLC online, can I do this even though I’m an MD? And how do I ensure that I’m distinguishing my services if some are medical and some are coaching?”

So as I’m sure you can tell, this is a question that calls for individualize legal advice, and it isn’t answerable in great depth on a webinar because we would to get deep into the weeds, into lots of different sub-questions. What’s the difference between a PC and a PLLC? And do you get one in one state, and another in another state? And would you even benefit from having a professional entity? What are the differences between New York law and California law?

What are the exact services that this practitioner wants to offer? What are their marketing claims and marketing message? Mima and I were talking offline before the webinar. And I was talking about the FDA’s crack down on people who offer products that are targeted to coronavirus, and she was saying that she has heard of practitioners who got in trouble with their boards, for promoting therapies, specific to coronavirus, where the evidence isn’t quite there in a way that would be considered standard by everyone in the community.

So the marketing messages and the claims, we need to be evaluated. And then there’s the question of where the person’s licensed and people wanting to do things, multi-state, all over the country that’s the big 800 pound, gorilla question. And then what staffing they’re using for their in-person or online visits. And many other deep in weeds details. To the extent that the questions that I’ve just described for you are raising more general issues about telemedicine, that are probably on everyone’s mind.

Let me give you a sense of how you would approach this if we were doing a legal strategy session with you. Let me give you some high level nuggets, because we don’t have 90 minutes, but I’d like you to have some takeaways. So as to the first question, I would say the basic rule of telemedicine is that unless there’s an exception or a waiver, or other allowance, typically you have to be licensed both in the state where you’re located and the state where the patient is located.

Now there are exceptions and waivers and I spoke about the Federation of State Medical Boards maintaining a list and since someone asked me in the Q&A about a preferred resource, if you go to the Federation of State Medical Boards’ website, FSMD.org, there’s a page on COVID-19 and that page can lead you to another page that is entitled, States Waiving Licensure Requirements/Renewals in response to COVID-19.

So are we saying that the Federation of State Medical Boards, FSMB.org, they have a page that is devoted to COVID-19, and on their page they’re talking about States waiving licensure requirements and that page is updated as of March 26, 2020. What you can see here is that there’s a patchwork of laws and rules and changes across states, the states all say something different, sometimes it comes from the State Medical Board, sometimes the rule comes from the legislature, sometimes there’s some other body, sometimes there are pending bills. So it’s a very confusing landscape.

And some of our clients have asked, “Did this law get passed? Did that one get passed?”

I mean, just know that it’s changing by the day, by the minute and we want to stay on top of it all. We also want to give you good guidance because again, the metaphor, a lot of times you’re racing toward a yellow light, you shouldn’t race toward a red light, that would be bad. But if you’re racing toward a yellow light, you have to have a sense of, “Is that light likely to turn or am I going to get through it on time?” So, what’s the best practice here? And we call that risk assessment, risk mitigation, you do that as clinicians, you do that as entrepreneurs and that’s what we do as attorneys.

Okay, so unless there’s a waiver, the basic rule is you need to be licensed in both states. Now there are some advantages to having a professional entity, particularly if you have nurse employees and so on. There are also some advantages and some complexities if you’ve got an MSO or Management Services Organization which handles the business arm. And again, these are things we can get into with you on subsequent webinars or in more detail in a legal strategy session.

But if you want to have your professional entity operate in another state, more than likely you need to register your PC or PLLC in that other state as a foreign professional entity and be licensed there as well or exempted or waived in. Now as to the second question, what you need to know is this, anytime you’re offering a service that could be considered a practice of medicine, it’s very difficult to claim that what you’re doing is merely health coaching. What is the practice of medicine? The practice of medicine is defined as, “Diagnosing, treating, preventing and curing.” And those are very large words.

So for example, if you review lab tests, that could be considered the practice of medicine and not health coaching. What’s coaching? Well coaching is something that people like to use as a broad umbrella, typically it’s not defined in the medical licensing statutes, they don’t say, “It’s okay as long as all you’re doing is coaching.” That might be something that somebody heard, that another doctor told them, and that doctor talked to their lawyer, who’s their brother’s cousins, doctors, lawyers, father and again, it’s that as long as this, then you’re okay. So, that’s one of those myths.

But the definition of coaching typically is talking about goals, habits, motivation and you steer completely clear of clinical advice. You steer clear of medical diagnostic language. Then you can stay more in the coaching domain, meaning you’re more likely not to be a target for enforcement. The difficulty here is drilling into the services that you’re proposing because it’s really hard for trained clinicians, like our clients, really highly, highly educated, refined, sophisticated, evidence-based professionals, to go into a purely coaching mode.

To stay away from the evidence because the evidence, that’s the truth, right, and you want to deliver the goods. So it’s very difficult, challenging but it can be done and if you want to do it, we can work on forms and disclaimers. They’re not ironclad, it’s not like that scene in the Matrix, where Keanu Reeves is going in slow mo’ and the bullet just goes over his head because he’s bending in a way that I’ve never learned to do in my yoga class, although I’ve been trying but it’s not like you get immunity, so to speak.

But you do get enhanced immunity, I would say. It’s not 100% guaranteed but we can certainly bolster your defenses and give you arguable defenses by crafting good language for you. So I think with that, I’ll turn it back over to Mima to address the practical question. I see we’ve got a lot of Q&A, so let me see what else I can tackle here in the next couple of minutes.

[Dr. Mima Geere]

Thank you Michael, as you can see I consider Michael to be a ninja when it comes to the law and there is so much nuance here and there’s so many details, that can be really overwhelming for any provider to have to sort through. So I really recommend working with somebody like Michael and his team that can help you sort through these issues because they’re moving really quickly and they’re constantly changing.

The first question that I see here from, I think it’s Julie,

“Is it legal in California to see a new patient at this time without first physically examining them? If we see patients by Telehealth for example Zoom, when we cannot physically examine them due to shelter down California, governor’s order, what can we do? Write lab requisitions, write prescriptions, write imaging orders?”

Now, I’m assuming you’re talking about within the insurance model, Julie and in many cases it doesn’t matter but, yes, based on what Michael is saying you can bypass that initial physical exam. From a clinical perspective though, you want to also be wary of what diagnosis you can actually make without that physical exam. And in some cases you have to reframe a little from your regular typical medical practice model. Where we are taught to diagnose so much out of that initial visit to scaling back a little bit with the patient, and moving a little bit slower with a lot of their care.

So as we were talking about earlier, let’s say you were at a private model where you have more time and you’re a concierge practice, you would distribute things a little bit more differently. You’d certainly be able to capture a lot more information online through a very good medical history questionnaire. So similar to what you have in the clinic but now thinking about an online setting, what do you want that patient to report to you that would help you evaluate their risk when they’re coming in to see you over Zoom? Right, and then if it is something requiring a physical exam, how do you deal with that?

So there are definitely different challenges there when you’re looking at a patient that’s more acute versus a chronic care situation where you’re managing them over Zoom. And absolutely, a lot of the labs have actually started to support online ordering and there are virtual versions of fax machines, believe it or not. You can have an e-fax, you can fax orders and get orders back just like you would in your physical clinic. So it’s rethinking that whole setting and bringing it into a virtual model. Same goes for the prescriptions.

Okay, what is the legal challenges from Paul that I faced which were perhaps unexpected as you transitioned from brick-and-mortar to online services. I think Paul, it’s important to address legal challenges I think in both settings. Now starting a new practice, thinking about a new provider. Oftentimes, we underestimate the importance of following the regulations, we think that we can go under the radar with a new practice and oftentimes people do go under the radar for a lot of the time until they’re doing well, or if there is a competitor practice that doesn’t want you to do well.

So for example, I’ll just talk about IV nutrient therapy. That’s something that even in the clinical setting, in a physical space you need to really follow regulations around and there are lots of people that aren’t necessarily doing that to the T, because it’s incredibly costly to do that. Now in the online setting I think, it’s going back to the earlier question that Julie had, to just make sure that you are practicing within your capabilities and that you have partners that are on the ground that you can support your patients, if need be. And that you have a good referral source for patients who need it.

So really, I think the next step for all of us is to think about building our networks in an online setting. And you have a lot of people creating telemedicine platforms that are not in medicine, that aren’t thinking about how medicine necessarily functions, but what we do really well in a physical setting or least what we hope that we’re doing well, is that we know who to refer to and we know how to communicate with one another when we’re making referrals.

So the same goes for the online setting, really knowing what you’re good at and what you’re not good at, and being able to refer out when a case requires it and communicate well with your networks.

I’ll take the next question from Kevin as well, and then give Michael a chance to take some of the questions here.

Kevin says, “How do you see practices engaging with health coach nutritionists without hiring them? Would you do this on a contractor basis?”

I think this is a dual question that Michael can also weigh in on, because there are changing regulations around hiring and particularly in California, hiring contractors as you’re a physician so, I don’t know if Michael, you want to speak to that? But I’ll just say more generally, when I work with a health coach, I think of them as another provider that is partnering with me. And that they are seeing the patient within their own licensure and their own capabilities but that the people that I choose to work with are going to understand how medicine works.

Because we often sometimes have health coaches and sometimes nutritionists, but often health coaches that are practicing outside of their training and outside of their capability. For example supplements, supplements should never be prescribed or managed or changed in terms of dosing, by somebody who isn’t trained to do so. It’s a challenging situation because it’s considered a treatment, but at the same time it is not a pharmaceutical, and so health coaches are often approaches by supplement companies to sell their supplements.

And for those of you who are health coaches here, I want you to be wary of that because supplement are not benign and many pharmaceutical are in fact coming from natural sources, right? They just are potent and they’re a single mechanism, but supplements also can be having interactions when it comes to drugs and when it comes to patient’s conditions. And so it’s a little bit of a gray area but when I work with other providers I want to make sure that they understand how to work within their scope and that they’re working in a way that’s going to be in partnership with a medical model.

[Michael H. Cohen]

Yeah, I would agree with that and I think that yeah, the scope of practice issue is definitely of concern if you’re working in an integrative multi-disciplinary clinical model where you’ve got nurses, you’ve got coaches, you’ve got chiropractors. You’ve got people who don’t have a license but maybe they have some umbrella under state law like SB577.

But you have to be very careful because when people are in your office, first of all whether they’re employees or contractors, there’s something called the parent authority, which is that, people, your patients, your clients, your customers, your patrons, they can see it all as one operation and they can attribute negligence from one of the other staff, whether it’s a contractor/employee to the whole enterprise and to you.

And so, you want to make sure that your contractors or employees that they stay within their scope they don’t overreach, they don’t make claims, they’re not overzealous, they’re competent, they’re capable. They’re not saying that they can do more that they can do. Whether it’s done even benevolently from a desire to help people or not, it’s something that can expose you to liability.

Another thing that Dr Geere alluded to, is people by and large know that California’s come down with a fairly tough stance on employees versus contractors which all goes in favor of making your staff employees from a standpoint of avoiding enforcement and mitigating risk and being proactive and protective. So that has been down the pipe for a while now and circulating, you’ll see a lot of employment law posts on that.

Another perspective to consider is that there could be kickback issues if you are profiting from healthcare personnel who are contractors. If you are interested in that issue, I would refer you to a blog post that we did on our website called, Fee Splitting 101, for medical doctors, chiropractors, acupuncturists and others, Fee Splitting 101, and it goes into that issue.

We’re a little bit over time, but let me just… There are a couple of other questions I wanted to get to here. So yeah, one of them we talked about, “How do you see practices engaging with a health coach/nutritionist without hiring them?” Regarding nutrition, there’s another pitfall that you need to be aware of, which is how your state handles the practice of dietetics and nutrition.

Some states define dietetics and nutrition really broadly, and require a license before you can give nutritional advice. So if you give nutritional advice and you don’t have a license, you could be prosecuted for unlicensed practice. And this is what happened in North Carolina in the case of the so-called Caveman Blogger, who is starting to get very popular for giving advice about the Paleo diet and then started charging for it. And then the boards came and said, “Well you’re practicing nutrition and dietetics.” And he said, “No, I’m just exercising my free speech right.” There are times, lots of times when the constitution will trump a lesser law because the constitution is the supreme law of the land.

But in this case, the court said that free speech didn’t really matter here, what mattered here was that he was intruding on a licensed profession. So he got in trouble and he fought that and subsequently North Carolina changed the rules and came out with guidelines. Which were hailed by the freedom advocates to be a victory, and if I read them closely they pretty much encapsulate a lot of the existing rules and still leave a lot of ambiguity to be parsed if you’re in North Carolina.

So you have to be careful, in California there’s a statute known as Business and Professions Code 2068, it might be 2608, I sometimes transpose numbers. Let’s just see, Business Professions Code 2608. Nope, I had it right, it’s 2068. So 2068 deals with nutrition and it basically says that anyone can give nutritional advice as long as you don’t call yourself a nutritionist. I mean, if you’re going to give nutritional advice then you need a disclaimer which has to be in an easily visible and prominent place and the statute tells you exactly what you have to have.

Now, I’m sure that some of you are thinking, “When will we ever be back in a world where someone posts something in an easily visible and prominent place in a physical room?”

I believe we will and we have to adapt those to the digital world and also be mindful that a lot of the rules from the physical world are going to still apply and they’re going to come at a place when we all go back to our physical practices.

The last question that I’d like to… Yeah, and you know food is medicine so there’s another question. So, food is medicine, when somebody says food is medicine, it’s like if your grandma says, “Have this chicken soup, it’s good medicine for you.” Or a native American storyteller tells you a beautiful, therapeutic metaphor of a story and you say, “Yeah, that’s good medicine.” Nobody is waiting to pounce saying that, that’s the practice of medicine. I think these are understood metaphors and ways of speaking in our society.

So it’s this dual message, on the one hand as lawyers trying to safeguard you from all the enforcement and liability risks out there. We work with language, language matters, language can protect you. Language is what stands between you and the lawsuit, language is what stands between you and the board. And that’s what we do, I know on a call, we have two healthcare lawyers, one is a very fine corporate lawyer and that’s what they do. They craft a language, they interpret the language. So language matters.

The same point, we can’t be paranoid about it, you can talk about food as medicine. What I would tell you to steer away from is taking in clinical data and speaking in a clinical vain, talking in diagnostic categories. And going back to that distinction between medicine and coaching, don’t talk about obesity. You could talk about developing a lean body, just for example. That’s where language can help you.

The last thing that I want to say is, there’s another question here about, “What is a good resource for telemedicine regulations?” There is a site from a group, it’s called the Center for Connected Health Policy. The Center for Connected Health Policy, CCHPCA.org. And what they do, is they compile the laws from every state. So if you go on CCHPCA.org, you can click on the map and they’ll give you a whole bunch of rules. Now the only thing is you have to parse through this huge arsenal of references and statutes.

The first batch deal a lot with Medicare and Medicaid, and they try to make it very clean for you. Policy exists, allowed. No policy exists, not allowed. They try to keep it up to date. I think it’s very useful, I still think you have to read the stuff, some of it’s very arcane. They talk about storing forward, sometimes you have rules about storing forward. Synchronous versus asynchronous, geographic limits, remote patient monitoring, email, phone, fax.

Sometimes phone calls are considered telemedicine, sometimes they’re not considered telemedicine. You do have to have informed consent, rules about licensure, rules about insurance. Definitions of Telehealth, rules about online prescribing. And once you read these, then you really have to go to the statute and you’ve got to make sure that it says what they says it says.

So it’s a good tool to get you started, and if you’re contemplating a huge seat change in your practice or business, and you want to make an offer to people that goes across states. I think it’s going to be a good idea to get a lawyer to read these things, put it together, and make it so that it’s not just goulash, which is you can get overloaded by looking at all the information on this website. I think it has to be sorted, organized, and then vetted because they summarize the law. And a summary of the law isn’t the law, you want to actually see what the law in fact says.

So I really appreciate having Mima on the call, she’s been a really good colleague in bouncing off some ideas from the trenches in practically. I wanted also to give you a lot substantive legal content today on our first call, and I think from here we’ll go on to the office hours and we’ll talk together and I hope to hear from you about what’s going on in your business. Most if not all of you are probably working remotely, what does that mean for you?

What are some of the challenges?

What are some of the things that keep you awake at night that you’re worried about, that you never had to think about before?

What are some of the things that you’re freed from, that you had to do routinely, that are no longer have a nuisance?

And are there tips and tricks that we can share in this community?

We’re going to limit our audience again to 100 participants, that’s what we had signed up for this webinar, so please when you see the notice, register early. And again, thank you Dr Mima Geere, really appreciate your participation, your knowledge of ayurvedic medicine, functional medicine, and all the things that you’re doing.

[Dr. Mima Geere]

Thank you Michael, and thanks everyone for joining us.

[Michael H. Cohen]

And we’ll see you all again soon, have a wonderful day. Bye everyone.

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