How can integrative psychiatry and integrative behavioral and mental health centers surmount legal challenges to new wellness models?

A Licensed Psychiatrist and a Clinical Psychologist Open an Integrative Mental Healthcare Center

Janet, a licensed psychiatrist, and Jane, a clinical psychologist, want to open an integrative mental health care clinic that includes psychiatrists, clinical psychologists, social workers, and other behavioral health professionals.

They have retained legal counsel to advise them on how to set up the integrative medicine center, but their lawyers have not given them satisfactory counsel on the complexities of integrating different kinds of licensed professionals.  For example, the center wants to employ an MFT Associate and put this healthcare professional under the supervision of the psychiatrist.

Part of the challenge Janet and Jane are facing involves the “mixing and matching” of different kinds of healthcare providers, some licensed medical doctors (physicians) and others, behavioral health or allied healthcare providers.

Among the complexities is the way California allows mixing and matching of different healthcare professionals, and questions about whether the licensed psychiatrist and clinical psychologist should be shareholders in the same Professional Corporation, or employees of one another.

Complicating matters further, each of the psychiatrist and clinical psychologist want to do some functional medicine “health coaching” for patients whose symptoms are subclinical or, at the other end of the spectrum, resistant to traditional clinical approaches.

The clinicians also want to sell dietary supplements for brain health; and separately, have questions about creating a concierge practice membership model for the functional medicine component.

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These membership models can be used whether the practice involves functional medicine, integrative medicine, integrative psychiatry, integrative behavioral health, or other multidisciplinary approaches to health.

Some of the issues that practitioners face include:

  • Crafting the actual agreement between the healthcare provider and the patient
  • Review of advertising claims for compliance issues
  • Standard of care and informed consent questions
  • Insurance issues (Medicare, opting out, superbills, cash practices, hybrid practices, etc.)
  • Automatic disclosure requirements for subscription membership models
  • Watching out for anti-kickback and fee-splitting issues with bundled services
  • Deploying the professional services corporation
  • Handling privacy and security obligations

Concierge or Functional Medicine Practice Legal Issues: An Overview

Many physicians, chiropractors, and other healthcare practitioners are wanting to start a cash-based, concierge or functional medicine practice yet not run afoul of

Below we’ll get deep into the weeds of one issue, to show how deep the thicket can be.

Of Interns and Supervision: the Micro World of the AMFT

While the rules different in every state, California has its own microcosm of laws around mental healthcare, in particular those around MFT interns and Associates.  According to California Business & Professions Code Section 4980.03:

“Intern” is “an unlicensed person who has earned his or her master’s or doctoral degree qualifying him or her for licensure and is registered with the board.”

“Supervisor” includes a “licensed physician certified in psychiatry by the American Board of Psychiatry and Neurology” who has not treated the Intern.

As of January 2018, the Board of Behavioral Sciences (BBS) replaced the term “Intern” with “Associate.”  (BBS, Fact Sheet—Implementation of Registrant Title.)

According to BBS, the title to be used is “Associate Marriage and Family Therapist” or “Registered Associate Marriage and Family Therapist.”  As an abbreviated title, the registrant can use either: Registered Associate MFT or, AMFT (if the term “Registered Associate Marriage and Family Therapist” also appears in the advertisement).

BPC Section 4980.43 provides extensive rules governing supervision.  Among them, the supervisor is

responsible for ensuring that the extent, kind, and quality of counseling performed is consistent with the training and experience of the person being supervised, and who shall be responsible to the board for compliance with all laws, rules, and regulations governing the practice of marriage and family therapy. Supervised experience shall be gained by an intern or trainee only as an employee or as a volunteer.

The rule contemplates employment:

The requirements of this chapter regarding gaining hours of experience and supervision are applicable equally to employees and volunteers. Associates and trainees shall not be employed as independent contractors, and shall not gain experience for work performed as an independent contractor, reported on an IRS Form 1099, or both.

The AMFT must provide BBS with copies of W2 tax forms.

There is a multitude of detail around contact hours.

Section 4980.44 states that the unlicensed associate marriage and family therapist employed under these statutes must do the following:

Prior to performing any professional services, inform each client or patient that he or she is an unlicensed registered associate marriage and family therapist, provide his or her registration number and the name of his or her employer, and indicate whether he or she is under the supervision of a licensed marriage and family therapist, licensed clinical social worker, licensed professional clinical counselor, licensed psychologist, or a licensed physician and surgeon certified in psychiatry by the American Board of Psychiatry and Neurology.

Further, any advertisement by or on behalf of a registered associate marriage and family therapist must include, at a minimum, all of the following information:

(A) That he or she is a registered associate marriage and family therapist.

(B) The associate’s registration number.

(C) The name of his or her employer.

(D) That he or she is supervised by a licensed person.

And the abbreviation “AMFT” cannot be used in an advertisement unless the title “registered associate marriage and family therapist” appears in the advertisement.

The California Code of Regulations (CCR) contains additional rules, including 16 CCR 1833 and 1833.1 which contain additional rules governing supervision. For example, 16 CCR 1833 provides:

(d) Experience gained by interns and trainees shall be subject to the following conditions, as applicable:

(1) When an intern employed in private practice is supervised by someone other than the employer, the supervisor must be employed by and practice at the same site(s) as the intern’s employer.

(2) A trainee shall not perform services in a private practice.

(3) Interns and trainees may only perform services as employees or volunteers and not as independent contractors.

Note that 1833(d)(2)’s prohibition relates to “a trainee.” In its publication, Important Answers to Frequently Asked Questions for Associate Marriage & Family Therapists and MFT Trainees, BBS states that trainees are prohibited from working in a private practice settings.

As to Associate MFTs:

You may not work in a private practice until your Associate registration number has been issued by the board. You may work in private practice for a maximum of six (6) years, until your first Associate registration has met its maximum length. There are no exceptions. Statutes cited: BPC sections 4980.43 and 4984.01; Regulation cited: Title 16, California Code of Regulations (CCR) section 1833…

Only those who have been issued a first Associate registration number may work in a private practice. Associates issued a subsequent registration may NOT work in a private practice setting. There are no exceptions. All other work settings are permissible.” Statute cited: BPC section 4984.01….

Only in a private practice setting does a supervisor need to be employed by, and practice at, the same site as the registrant’s employer.” Statute cited: BPC section 4980.43; Regulations cited: Title 16, CCR sections 1833 and 1833.1….

All Associates must be a paid W-2 employee or volunteer employee, and Associates may not bill clients directly.” Statute cited: BPC section 4980.43; Regulation cited: Title 16, CCR section 1833

In general, the FAQ is a good resource with respect to supervision requirements.  The main point here is that the rules are very micro.

Health Coaching?

One takeaway here is that the statutes and regulations are very specific, and do not talk about a category called “health coach.”

The health coaching category is one that healthcare providers like to embrace, yet it is a legal stretch to assume the health coach identify.

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Particularly for this class of providers called an Associate MFT, the legal rules are very specific around how this person must be supervised, and what they can be called, and how they can be advertised.

This might seem like a word game, but it is not a trivial point.  Frequently, we see healthcare providers trying to bend the rules of what they are licensed to do, and, calling themselves all sorts of things and giving themselves creative titles to try to underscore the creative nature of their approach to health and wellness. The AMFT rules require certain disclosures to the patient about the AMFT’s licensure and role. And the AMFT is bound by the overarching legal definition of “the practice of marriage and family therapy” which is:

that service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments. This practice includes relationship and pre-marriage counseling.

While the professional standard of care leaves some creativity in clinical practice to benefit the patient, this creativity does not necessarily extend to the legal requirements for how healthcare licensees must supervise, advertise, and conduct themselves.

The laws can be persnickety.  But that is where retaining a knowledgeable healthcare lawyer, who understands the laws governing psychiatry and behavioral health, can be helpful.  The best practice is to contact an experienced healthcare lawyer who can advise you on how to navigate healthcare legal requirements specific to your integrative care center, mental or behavioral healthcare practice or business.

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