In today’s video, we discuss healthcare legal compliance challenges that a healthcare startup might face when it ventures into digital healthcare, and advises its customers on healthcare and lifestyle choices, using health coaches or life coaches.

We’ll talk today about legal boundaries between “practicing medicine” on one hand, and “health coaching” on the other, and how to navigate this uncertain legal terrain.

I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We’ve advised over a thousand healthcare industry clients on healthcare and FDA legal issues.  These clients include healthcare startups that do integrative medicine, functional medicine, or telemedicine, and/or have a management services organization or MSO serving as the management and marketing arm, whether in a brick-and-mortar setting or via digital or mobile health.

We’ve represented both licensed practitioners such as medical doctors, companies like medical spas, and healthcare organizations that use both licensed and non-licensed practitioners, such as health coaches and life coaches.

Again, how you style health coaching, matters not only to individual practitioners, but also to the companies that are using health coaches as part of their telehealth offerings to customers.

The first thing you need to know is that the legal status of health coaching stands against the backdrop of statutes licensing the practice of “medicine.”

Basically, states can regulate who can practice “medicine” and define “medicine” broadly in terms of diagnosing and treating disease.  What this means for health coaching is that it’s important to steer clear of activities that could be viewed by enforcement officials as diagnosis or treatment.

Second, think of coaching in terms of helping people to establish goals, handle habits, and increase their motivation.  This helps distinguish coaching from diagnosis and treatment.  The law tends to define terms like diagnosis and treatment broadly—not just in terms of using actual medical devices and prescription drugs to diagnose or treat disease.  For coaching, it’s best to talk in terms such as restoring balance or helping people achieve their health goals.

Third, the difference between staying within the bounds of coaching—and being in the enforcement crosshairs for unlicensed medical practice—is not just about the activity, but also about language.  Be very careful of diagnostic and therapeutic terms.

For example, you might be coaching someone about their healthy eating or healthy sleep habits.  But if you’re dealing with obesity or insomnia, those are therapeutic categories, and now you’re talking the language in medicine.

To sum up, health coaching is one of those areas that isn’t black-and-white.  Is the law making an artificial distinction between wellness care on one hand, and medical care on the other?  Yes, it is – some are artificial; and at the same time, we can use our understanding of the language of wellness, vs. the language of medicine, to review websites and marketing collateral for companies like you that are trying to style themselves as coaching only – and to stay in this wellness paradigm.

The reality is that there are very few, if any, state statutes right now that actually use the term “coaching” or “health coaching.”  Yet, every state has laws defining the practice of medicine.  So really, what we’re trying to do for you is avoid enforcement for unlicensed and corporate practice of medicine.

The distinction between wellness and medicine might not make sense to modern ears, but it’s been around for over a hundred years and we’re slowly seeing the law evolve out of that older view that everything is “professional medicine,” that there are only two binary possibilities – health and sickness – which only a licensed MD with specialized training can help when something goes wrong with the body, and overall wellness.

That’s what you need to know, and there’s one more wild card here, and that’s how states define nutrition.  In states where these definitions are very strict, or enforcement severe, non-licensed health coaches could be at risk.

California is fairly liberal in terms of giving nutritional advice (under the Business & Professions Code, Section 2068).

So what we can do? We won’t necessarily tell you there are “green light” states, where coaching is “unregulated” or allowed, but we can do state-by-state review to assess whether there are risks for unlicensed practice of medicine, psychology or nutrition.

Beyond state by state review, which takes a lot of time, we can look more deeply at the business model you’ve got to identify opportunities and risk, and ways we can frame the product offering to help reduce overall risk of unlicensed and corporate practice.  If we can refine the general model, we can look to mitigate risks while honing the business opportunity.

Thanks for watching. Here’s to the success of your healthcare venture, we look forward to speaking with you soon.