[Michael H. Cohen]

So for the first order of business, I want to say, I know that many of you are in fact clinicians and you’re out there on the front lines. I know it’s tough. I’ve heard from some people, I mean, words cannot express. So thank you for what you’re doing. And we’re all grateful. We appreciate everything you do and we appreciate you being here. Now, for today’s agenda, we have 30 minutes. The reason that I decided to open this up for Office Hours is to take a high level view of questions that people might have, kind of get a sense of the pulse, if you will, of where our community is and see what’s on people’s minds generally.

I hope we’ll have a great discussion. I want to say though, that if you have a very detailed, deep in the weeds question and we’ve gotten a few or one that pertains really very, very specifically in a micro way to your situation without necessarily touching the rest of the group, it would be better to save that for a legal strategy session, a real legal consult with our attorney team. And you can go to our website and it’s right on the homepage, book a legal strategy session and that has all the information that you need. So we’re going to focus today on wider issues and broader trends so we can have a conversation people can contribute instead of making it a one-on-one exchanges. What we’re going to do is when I’m done here, we’re going to… when they’re done with the introduction, you’ll be unmuted so that we can all hear you. So the first time that you speak, please briefly introduce yourself, briefly tell us where you’re calling from and describe your practice or business in a sentence or two.

My name is Michael H. Cohen. I’m founder of the Cohen Healthcare Law Group. And our mission is to provide legal strategies and solutions to businesses and practices that accelerate health and wellness. Obviously right now, accelerating health and wellness is on everybody’s mind. So also in addition to having specific questions, which again, I’m going to respond to at a broad level. Things that you might want to talk about are like what are the top challenges that you’re facing in the current environment? Some people are very, very interested in like micro questions of relaxation of HIPAA standards by the office of civil rights. But other people, it’s the first time that they don’t have their employees in the same office. They don’t have their nurses handy or they have a healthcare startup, but they’re not sure where to go. Or there are things happen on the other friends of law that are going to affect them.

The rules are changing in so many different areas so quickly and then I have colleagues that are also tracking like these SBA loans and the tax issues. I don’t personally follow that, but we have other people who do and resources and so there’s just so much that’s going on. So feel free to talk about like what your challenges are and what you’re thinking about. If you don’t get a chance to get your question in, the email that you would use to send questions will be [email protected]. It’s [email protected]. We’ll collect those and we’re going to circle back to the ones that we can in our future Office Hours. So with that, I’d like to open it up and I think the protocol is to… Well yeah, if you could give us a summary of your question in the Q and A just in a few words, then we’ll know who to unmute.

Yeah, you can either type the question and I’ll address it. Or if you give us a quick summary and say you want to speak, then we’ll just unmute you. So let’s do that. So to start it off, I see something from a question here. Can physicians, psychiatrists offer pro bono service in their current paid service by tele-psychiatry? I’m not sure really what the person is asking here. Are you saying is there any difference if it’s not paid versus if it’s paid or… I’m not sure what the question is.

[Participant]

Yeah, this is Rana Singh. So during this time of crisis, we want to offer pro bono service to patients who cannot pay or who cannot afford, are uninsured within our existing psychiatry practice. So are we allowed to do that by law?

[Michael H. Cohen]

Well, I don’t see a reason why you couldn’t offer services unpaid. These things are hard to answer like with any absolute certainty because you don’t know if there’s some rule hidden somewhere in your state laws or your state regulations or something the board might’ve said somewhere that has to do with pro bono services.

[Participant]

Yeah. We’re in California.

[Michael H. Cohen]

Yeah. And I haven’t been asked this question before, but in principle, I wouldn’t see a reason why a clinician could not donate service. Whether there are certain rules around it, I don’t know that circumscribe it. So that’s probably that is something that we would have to do some research on. But is the idea to reach more people, do some good? What’s the…

[Participant]

Yeah. In this coronavirus environment we want to help more people. We are telling the psychiatry it’s possible to help larger amount of people at odd hours. So we want to do that but we want to be within the legal boundaries.

[Michael H. Cohen]

Absolutely.

[Participant]

Yeah. I heard somebody say, like if you’re charging insurance companies in your current practice, you cannot or you may not be able to offer pro bono service because one side you’re charging patients another side you’re not. So I’m not so sure.

[Michael H. Cohen]

Well, that’s a really interesting take on it because if you are in insurance, definitely you should check the insurance participation agreement to see if it says something. It might say that you can’t and there you go. Maybe it’s not in the laws. Maybe it’s not in the regulations. Maybe it’s not in the policy statement of the medical board, but there it is in your insurance contract. You could also call your insurance carrier and see if they have a question and answer line. I would say that whether it’s paid or unpaid, you’re still practicing, you’re still held to the standard of care practice. So you don’t get a break and you still enter into a patient, a doctor-patient relationship.

You still need to have informed consent. You still need to have good systems for the tele-psychiatry, which is not that big of a deal these days. But in some states it has to be audio visual. I don’t think that’s the case here in California but yeah, you still have to be mindful of all the other rules. So it sounds like you know that. Yeah.

[Participant]

Yeah. That part we know. Yes, it was just about the billing. But if these free services, pro bono services, if we don’t bill? Do we have to bill? That was the question.

[Michael H. Cohen]

That’s something that I would definitely ask them because yeah, obviously if you bill, well yeah, it would obviously… that the insurance angle is tricky because you don’t want to commit insurance fraud and you don’t want to violate your participation contract and get blown out of the insurance network. So I’m not sure if there’s a legal answer to that. I would say just go ahead and call them and when you find out, would you let us know and then we can provide that as a resource to other people?

[Participant]

Sure.

[Michael H. Cohen]        

We won’t hold you to it, but we’ll just say that you spent an hour on the phone trying to get through to somebody probably.

[Participant]

Sounds good.

[Michael H. Cohen]

And then they probably tell you, ask an attorney or read your contract. But if you do get an answer, let us know. We’d love to share that with the community.

[Participant]

Okay. Thank you.

[Michael H. Cohen]

Thank you so much for your question.

I see another one here. Can physicians licensed in one state… It looks like a lot of these are about telemedicine.

Can physicians in one state offer teleconsult in another state where they’re not licensed?

Typically, the answer is no. Up until about a week ago, the answer was that you have to be licensed both in the state where you’re located and the state where the patient is located. That may not make any sense, but the reason that happened is because we grew up as a Federation of States. And under the 10th amendment to the US constitution, the States were given the power to license physicians, the power to regulate health, welfare, safety and morals. Now, of course the federal government has a lot of regulation. HIPAA is one example, Medicare is another.

But in general, it was given to the states and the states were to determine who gets licensed. So every state set up its own rules and that’s how it was done. Now, that’s changed a lot. There’s an interstate compact among the states where if you’re licensed in one place, sometimes you can waive in, sometimes you can get an expedited license. And that’s really something that we don’t necessarily procure licenses for people. What you can do is go to either the Federation of State Medical Boards website, which is FSMB, Federation of State Medical Boards, FSMB.org. And you can find out where these waivers are, these various waivers and expedited licensing processes are.

Or let’s say that you are in New York and you want to serve people in the Tri-state area, New York, New Jersey and Connecticut. You could look to the adjacent states and find out if they have some kind of expedited process for you. If they do, and if there’s no exam and you pay a fee and you fill out the paperwork, then that’s a way to protect yourself. Believe it or not, if you have a license in your state and there is no waiver and there’s no expedited process and there isn’t like something like a… you know some states have this new COVID-19 special process to get you licensed across state boundaries. But if that isn’t there, then you could be considered to be engaging in unlicensed practice in a remote state. I would say that right now the risk of enforcement is not as high obviously as it used to be because people are preoccupied with much more important things than, did you do a Skype visit with somebody in Minnesota, if you’re living in Arkansas?

But check those rules and that’s a way to cover your bases there.

Any guidelines regarding employee rights, paid sick leave and expanded family and medical leave under the family’s first coronavirus act?

Yeah, there’s a lot of guidance and we do have lawyers who advise on unemployment law. My own focus is more on the healthcare regulations. What I would do for that is as a first start… Take a look at our blog because we’re going to be posting, we have a couple of articles now. One is about the ADA and let me just look this up. I should have had it in front of me. I think it’s called burning questions. Let’s just see. Here it is, answers to your most burning employment law questions about COVID-19. So take a look at that blog post. It was written by one of our Of Counsel attorneys, Barbara Zabawa and she’s an expert on health and wellness law nationally.

This article gets deep into the weeds of some of the burdening employment law questions that should help you as a starting point.

Let’s see. We are building a telemed business. Can we use Siri dictation for the physicians post counsel note?

Can you use the dictation? I don’t know. It sounds to me from this question like there are issues about HIPAA and privacy and I suppose it would depend on who gets the note. Is it just the patient or somebody else? So let me tackle some more here that are on the telemedicine thread and if we have time we can come back to that one or maybe share a little bit after.

Is there a difference between click the box versus scroll to bottom, before you click the box type of acceptance?

Again, this is a very, very, yes, no specific… So I don’t know if there is a rule that tells you. That’s the kind of thing that you would research and say there is a rule, there isn’t a rule or it falls in the cracks. But basically the idea is that if you have a terms of use or terms and conditions you want the user to accept. In my mind there’s not a difference between, like a short form that references the longer version of the terms of use, and you click accept like you’d have on your mobile phone a lot of times versus something where you’d have to physically scroll. I don’t believe the rules require that a person to actually prove that they scroll to the bottom in order for someone to manifest consent.

This is a good question a long one about MDs practicing as coaches. So we talked about this a little bit last time about are you better off practicing as a coach and taking off the MD hat or should you stay as an MD?

[Participant]

Let me interject quickly there, Michael. Just so my question is this. We can never undo our MD. Like everybody in our communities know us as MDs, those of us who are MDs and stayed in our communities. Some of us are on hospitals staffs and whatnot. So it’s not that we would become coaches, the question is that, my specific question is that after talking about this telemedicine model with a bunch of my other colleagues who are also trained in functional and or integrative medicine, which I as you know have a fellowship in like a degree in this from years ago. And I’ve been doing this for a long time. So just entering this telemedicine space and especially now in this current environment with COVID-19 and the demand for doctors being high and people from out of state, a lot of us have family in other States or just contacts in other States that want our help.

So my functional integrative medicine colleagues are saying that in order to better protect ourselves, which is what this whole forum is about, is how can we… why are we spending all this time on legal when we should just be like seeing patients left and right, right now. I mean I’m spending time personally because I would like to do it as well and protected as possible in things like, yes, practicing across state lines, not just during the COVID emergency but then the discussion is that, now rules have been relaxed. Now, what’s going to happen afterwards? Nobody knows. Nobody knows. But you can either do an emergency, like quick setup a Zoom and like start seeing patients stat version of a telemedicine practice. Or you can do what I’m doing, which is just my own personal style, which is just to try to like just feel, just do something, just kind of play long ball.

So I’m playing long ball. Like I don’t want to have to redo this in a year or whenever we’re out of this crisis, because we don’t know. It could be tomorrow – doubt it, could be a year – don’t know. So that is why this concept of MDs not like not being MD, we would still say this is Sheleenie JNMD practicing under her corporation, which is Malibu Integrative Medicine doing business as JN Integrative Medicine but she’s offering health coaching during this time. That is the model that people are saying within my community may make the most sense to protect us MDs right now. Because as we do things like practice across state lines, blah, blah, blah, we don’t really want some of this stuff to come back later in any way, shape or form. Some of us just like want to do our jobs and be left alone by the law and by people trying to sue us all the time, Michael. So that was the basis of my question.

[Michael H. Cohen]        

Well, I mean I think it’s hard to play the long game because I think things are changing a lot of stuff. We’re all very anxious about what’s happening. I mean, certainly it’s no fun to have these rules that make things harder when all you want to do is practice good medicine and help people and there’s so much critical need. Then so now you have to listen to me being the messenger about HIPAA and informed consent and standards of care and all these things, which, I mean, frankly, they’re not like the best conversation openers at a cocktail party. But there they are and we have to navigate them, just like now I wear rubber gloves to take off the mail. I’ll take the mail out and I mean those things that-

[Participant]

That’s good.

[Michael H. Cohen]

Let me just address because I think a lot of people have this concern about coaching, which is, I’m not saying undo being a doctor. I mean you can’t undo it, but I was talking about removing that, the hat of a doctor. They’re being, like it’s almost analogous to what I’m trying to do on this call, which is I’m temporarily suspending or removing the hat of being a lawyer because I’m not going to give legal advice and I’m sort of waving a magic wand and say, “Okay.” I’m just coaching you. I’m calling these Office Hours but office hours are something that like my college professor had. So we’re going to have a community conversation and I went through all sorts of conniptions being a lawyer.

Like you have like a surgical precision in your language and you have to analyze every sentence. And so gets your disclaimers right and all this stuff. So I used to joke that being anal is a compliment in our profession and it’s not my natural inclination to be that way personally. But it is important professionally and understand like I think some of the value…

I don’t want to give TMI on the call, but a professional call even though I have some dear friends on the call.

[Participant]

So what do you think about this Michael?

[Michael H. Cohen]

So I think health coaching, I think the thing with coaching is I think that when you’re trying to help patients and you have a clinical degree and you’re evidence-based. And for you your whole world is about the evidence and what science says, even though you might be oriented in a holistic direction, even though you might be oriented in the direction that’s different than what the mainstream is saying, I think coaching is very challenging just as a starting point. Now, I’m not saying that it can’t be done, and I’m not saying that you shouldn’t do it, but I think a lot of it depends on what do you want to do and how you want to do it. So for example, these Office Hours, they’re generic. I give a disclaimer. I mean, they’re generic in the sense of we’ll talk about a lot of different stuff. I style them as information and education. And you could do that.

Let’s say that your focus is on lung health. Let’s say that your focus is on sleep, your focus is on overall immunity. And I was going to say you kind of play this game. I mean, it’s not quite a game, but in a way it’s a little bit of hide and seek in that you’re saying, what I’m doing now is I’m giving information and education and tips and people will do it. Sometimes they have a membership model. but what they do is they draw the line. And it’s a line that in practice is very difficult to draw with absolute precision. It’s like Heisenberg’s uncertainty principle. The closer you get, like the more the atoms are kind of worrying around. So if you start doing things just to give it a little bit more definition, but if you start reviewing lab tests, if you start commenting on symptoms, I think it’s hard to take off the MD hat and say I’m just doing coaching.

[Participant]

Oh, it’s impossible. It’s illegal framework that some of my colleagues have chosen to practice under without taking off the MD hat. Or just protecting themselves legally so they can just literally simply put up a disclaimer saying, “I’m not treating you as a physician. Like this is just advice. It’s not a prescription.” When you say, “Hey, try taking beta glucans or whatever people are talking about right now,” then you’re just, then you’re not writing a full prescription, right?

[Michael H. Cohen]

Yeah. But the thing with coaching is that you really have to style it as a generic educational activity just as if you were designing a course. And the minute that you get into individualized advice and there’s a back and forth and someone is telling you about their situation, it’s very hard to maintain that line. I want to say that I don’t talk in terms of possible – impossible. We don’t give advice in terms of black and white. I gave this analogy the last time that there are some laws that are black and white. Like the speed limit is 55, it’s 55.

[Michael H. Cohen]

The point is it’s not black and white. So there are laws that are black and white where if you go over the speed limit, you’ve broken the law. It’s important to talk about this and not to dismiss it as you’re telling us that it’s gray because what I find is that people tend to think of the law in absolutes. When you think that way, it’s not going to be helpful if what you want to do is design a strategy. That’s why we talk about legal strategy and solutions, because strategy is what can I do that’s going to get me most of the distance toward my goals in a way where I can understand the risk as best I can, given the uncertainty and manage and mitigate my risk.

So for example, you might say, yes, the speed limit is 55 and I’m going to go 64 because I know that if I go over 64 or your number might be 69 then there’s going to be a siren or a camera. Or you might say, I’m not going to do it in a red Corvette with the top down. I don’t even know if Corvettes get the top down. But you see the ideas that you’re constantly thinking about risk mitigation. And I use the analogy of racing into a red light. Do you go through the, I mean the yellow racing into a yellow light? Do you go through the yellow? Do you step on the accelerator? You step on the brake. Now, that’s a function of a couple of different things. One is what’s the risk? How close are you to the yellow turning red?

We do this all the time, at least people that are still driving. You assess the risk. How close am I? Am I going to slam on the brakes? Am I going to go through it? What’s the penalty? Nobody wants the penalty. It’s a very hefty fine and a point and traffic school. So there are big consequences. What’s your risk profile? Are you the kind of person that… Are you a startup? Are you well-funded or are you protecting your clinical practice? Are you Uber? Because people say, “Well, Uber’s doing it.” People all the time say, “Well, how is so-and-so doing it? How did Theranos do it?” Well, they did it and one day they didn’t and everybody went to jail. So you have to be mindful of all of the risk profiles and that’s where the advice could get very drill down into what exactly do you want to do?

How are you going to talk to people? What does the coaching look like? Are you breeding labs? Are you giving general advice? What does that look like? So I would say, I would segue from there moving on to another question.

Are there restrictions with prescribing medications?

Yes. So typically when it comes to prescribing, the bar has been higher than for treatment. And until October, 2019, California required that there’d be an in person meeting before prescribing. And in October the statute changed and now you don’t have to see the patient in person before prescribing. The caveat to that is that these other rules are still in place. So for example, standard of care is still an issue.

And again, we’re living in extraordinary times with extraordinary circumstances and enforcement is probably not going to be focused on the one off practitioner who does something one off that’s of service to people in an extraordinary time. But if you do something that results in harm, then it could all come back later. So it’s not as though everything is just suspended which is another point that you were raising. I think that right now we’re seeing some rules loosening, some rules aren’t. And it’s still dangerous territory and you got to mind your P’s and Q’s.

Yes, the cross state regulations are relaxed now. I talked about that a little bit before.

This is a similar question, which is how can a physician post or speak online sharing natural ways to improve health as it relates to COVID?

[Michael H. Cohen]

Okay. So here, the first thing that I want to say is that a disclaimer is useful. I talk about the disclaimer. I don’t know if there are any Star Wars fans out there, but, if you know the Jedi mind trick, these droids are not the ones you’re looking for. And the regulators say, “These droids are not the ones who we are looking for.” So that’s what a disclaimer is, is language that basically says, “These are not the droids that you’re looking for.” And you are counting on the fact that they’re going to read it and agree with you. I think it’s good to have disclaimers. It’s better to have them than not have them. That is your protective gear. And that’s what lawyers offer. If you’re an astronaut going into space, you need a lawyer, you need a spacesuit. If you’re going on in the Internet, I guess you’re going into the ether, the theoric space there, the Ethernet, then you need a disclaimer that’s drafted in a good way to help protect you. However, that disclaimer is not a bulletproof vest. It doesn’t protect you from any and all scrutiny. One thing you need to know is that a disclaimer is an agreement between you and the user. It doesn’t stop a regulator. So if you say for example, this website is not the practice of medicine, but then you go ahead and look at somebody’s labs and give them advice and you say, “Well, I have a disclaimer,” a regulator’s going to say, “Great, nice disclaimer, you’re still practicing medicine.”

So disclaimers are good. They need to be carefully drafted. They can be useful. They are not the ultimate immune defense. I think again, it’s strategy and strategy is multifaceted and multifactorial. It’s having a range of defenses if you will, and things are going to be protected. The other point that I to make is that, and this is going to sound paradoxical and maybe some people will have strong feelings about this. But I have learned that various health enforcement agencies have gone after people for making claims, including the FDA for making claims related to COVID. Obviously, there are things that you want to present to people but you just have to know that it’s an area that is very highly scrutinized now because there are so many scams and so many people. How many of you are getting bombarded by emails?

And the first wave of emails was the same for recommendations from the CDC, which are extremely important, but I don’t want to get them from Bank of America. I’m not saying the Bank of America did, but as an example or my insurance person or… You don’t want to get that stuff again and again. And the second wave is people offering products and FDA sent some warning letters about that. So I think if you’re going to be talking about this, you need to be aware that if it could strike someone is not evidence based or… It’s out there, there’s a risk. I’m not saying don’t do it. I’m not saying don’t get your information out to people. I’m just saying you need to be aware. It’s a very sensitive and visible area right now.

I’m going to looking some of these questions. Yeah, so a question about HIPAA. So we’re going to have a post coming out about this or we may in fact have a post already.

Yeah, telemedicine, Skype, it says Skype is allowed. What I had on the last call is that public facing technologies are not allowed because obviously they’re not private. But if you have a private communication like FaceTime one-on-one, then even though it may not be encrypted, it may not be fully secure. There’s a relaxation from the federal government around enforcement. So to clarify that. So we have about six minutes left. I’d like to hear from some people who haven’t participated and by the way, Ken thank you for being on this call. I have a mentor of mine. Can I introduce you or would you like to say hello, Dr. Ken.

[Participant]

Michael.

[Michael H. Cohen]

Yeah. Hi.

[Participant]

Yes. Hi. Good to hear your voice.

[Michael H. Cohen]

Good to hear you. Dr Kenneth Pelletier if anyone knows, well, the word holistic medicine, I think Ken, I’m going to credit you with a huge cultural shift that you brought to all of us a while back and it’s great to hear you.

[Participant]

Thank you for that.

[Michael H. Cohen]

Do you have anything coming up on your radar that you’d like to share with the group?

[Participant]

No. I’m actually enjoying listening to your counsel. I’m really here to be educated, but thank you for asking.

[Michael H. Cohen]        

Okay, great. That’s great. All right, well I’m trying to keep an upbeat note, through the questions. Can I do this? Can I do that? Reminds me when I was a kid, we used to be like, “Rabbi, can I eat a cheeseburger on the Sabbath?” And we used to say, “Bad enough, you should eat a cheeseburger, but definitely not on Sabbath.” So that’s kind of back in my mindset here. It’s hard, telemedicine, I think everybody has to use telemedicine now. I mean, that’s the way it’s going to be for quite a while. And have any of you had other challenges or successes converting your platforms to a more digital venue?

 [Participant]

I’m a physical therapist and I’m starting telehealth. I’m primarily working with couples and also with caregivers of elderly people. I want to train the caregivers how not to hurt themselves when they are doing transfers and ambulation up and down stairs and things like that for their aging parents, if the aging parents are in the room and if they’re part of the session for the sake of the caregiver. I am a cashed-based practitioner. Will I have any trouble with Medicare if I’m only billing the caregiver to help them to help their parent? A little sticky, but I didn’t know if that’s too far.

[Michael H. Cohen]

Yeah, this is the kind of like very specific question where, I don’t know that, but I thought you were going to go in a different direction. So for that, I would actually go to a billing specialist because they’ll know the code, they’ll know what’s allowed. There must be some billing specialists somewhere.

[Participant]

Okay. Well, if it’s cash-based I don’t have to go through HCPCS and all the other codes that… I mean I’m charting, but it’s just going to be a flat fee. So it’s not like it has to be, I’m not going to insurance companies.

[Michael H. Cohen]

Right. Yeah. I mean, the billing question, I would bet you to a billing person. I thought you were going to take another direction, which I’m going to respond to, which goes to the coaching question, which is what you’re describing to me of you’re a physical therapist, but you’re telling people how to do things that are like safe protocols in general in terms of helping elderly people go up and down stairs. And things that just sound like very useful life advice on which you happen to have a particular expertise being a professional. But they’re not necessarily, I mean I wouldn’t describe them as the digital practice of PT. Now, that’s not to say that somebody wouldn’t or some regulator might not see it differently someday, but to me this sounds educational.

So if you were to be enormously useful, so I would not be the one to put a chill on that. I’d say that sounds like a terrific idea. Again, with the caveat that we don’t necessarily, can’t guarantee that someone won’t see differently. But in general, that sounds like the kind of thing that falls more in the coaching than the clinical domain. I thought your question was going to be does that change simply by virtue of fact that the elderly person is there listening and taking notes. I mean, again, it’s that blurry line between actual clinical practice and coaching, which is difficult to navigate, but it’s a beautiful example of how you can in a way create a new business model or find something different to do. And maybe you’re doing it pro bono, maybe you’re doing it at a fee as for-fee educational program, but you’re providing useful information out there.

And simply the fact that somebody else benefits from it and they’re a potential patient doesn’t necessarily transform that into a clinical encounter, I wouldn’t think. So that’s why I would tackle that. Now again, going back to that earlier question about billing, once you start billing and you get insurance or Medicare involved, everything changes because now you’re bound by those rules in addition. And it’s not just are you engaging in clinical practice, but are you billing correctly? Then you want to make sure that you don’t want to follow those rules.

So that’s what I want to say for today. We took some extra time, but I hope it’s been helpful. I know that you’ve have lots and lots of questions. We want to do this again, but I want to thank you for participating today.

Thank you for your questions. Thank you for being here and hope you can join us again. Stay tuned, stay safe and healthy and we’ll see you all again soon.