Health Coaching Laws Challenge Licensed MD Across States

Health Coaching Laws Challenge Licensed MD Across States

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In today’s video, we return to the topic of a medical doctor who does health coaching.

Hi, I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare companies just like you navigate the very complex terrain of FDA and healthcare legal issues so you can launch, or continue to scale, your health and wellness business.

Tina is neurologist and licensed medical doctor in the state where she lives. She had a thriving medical practice focused on neurological complications, but, she closed her medical office when the pandemic began.  Since then she still has a had a thriving telemedicine practice with the patients that used to frequent her physical office, and, she figures she knows enough about holistic treatments for brain health that she wants to expand her practice across state lines.

Can she just do it, and if she does, is it medical practice or “health coaching?” What are the legal and regulatory parameters, what are the legal and regulatory restrictions, and what risks does she ultimately take?

Some of the states have relaxed rules such as the prohibitions against unlicensed practice and even corporate practice of medicine. They done so often by granting telemedicine permits or waivers, or, by relaxing enforcement around corporate practice of medicine.  Some states appear to have relaxed legal standards but then, given the breadth of the laws and they are on the books, they have pounced on unsuspecting healthcare practitioners and businesses.  It’s really hard to completely eradicate the past century even in the era of coronavirus where everything is changing around us all the time.

So, what does Dr. Tina do?

Dr. Tina has two websites.  One for her medical practice, and via this website, she promotes her clinical practice and unabashedly offers clinical advice via telemedicine.  She sticks to patients where they live where she has a medical license or very clearly has a special telemedicine permit or waiver or whatever the remote state offers.  She follows the standard of care, she gives proper informed consent, documents everything in the electronic medical record, abides by HIPAA, and otherwise follows best practices you would expect of a neurologist doing telemedicine.

Dr. Tina’s second website is a health coaching website.  On this site, she collaborates with Jane, a health coach who happens to have a PhD in some field related to neurology that has to do with brain health and brain development, brain function.  On this website, Dr. Tina notes in her bio that she is in fact a licensed medical doctor in various states, but she conspicuously disclaims her role and limits it here to coaching.  She does not use medical diagnostic language.  She does not take a medical history.  She runs the health coaching business via an LLC in which she and Jane are both Managing Members and their Operating Agreement is sophisticated, and they have amongst other things a way to break a deadlock in case of disagreement between them.  They also have buy/sell provisions in case they later need a “business divorce.” It’s a good idea to have those ahead of time.

The key to giving Dr. Tina more drill-down legal advice will be to review the specific “wellness” services that she proposes for her LLC and coaching business, and assessing whether these services necessarily entail medical or psychological advice, or can just be called coaching.

In addition, there are kickback and fee-splitting issues to be reviewed; and, Dr. Tina might be required to disclose her financial interest in the LLC, to the medical board.

If you’re interested in an early read on your healthcare business model, and something like this one, you would likely benefit from having a Legal Strategy Session with a member of our Legal Team.

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

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