In today’s video, we return to the legal twists and turns of health coaching.

Hi, I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients like you, navigate healthcare and legal issues so you can grow or launch your healthcare business.

Today’s scenario involves Leo & Martha, a husband-and-wife team.  Both are veterans in the health, fitness, and wellness space.  They have many certifications and a lot of training, and experience but no state licensure—neither one is a licensed medical doctor, chiropractor, acupuncturist, nurse practitioner or registered nurse, dentist, psychologist, behavioral health therapist such as an LCSW, MSW or LPCC, or otherwise.

Their business involves online health coaching for wellness and fitness. Their app and website provide exercise videos, various quizzes and questionnaires that lead to recommendations for specific dietary supplements, nutritional plan, health and wellness products, and a video chat feature with nationwide teams of healthcare coaches.

Leo worries that a client might get injured, exercising at home; or taking the wrong dietary supplement, or somehow suffer an adverse reaction from what’s recommended.  Martha wants to protect their intellectual property and have an exit strategy if they grow big. Ted, their son, wants to give nutritional advice yet also worries about HIPAA.

The bottom line here is that this client scenario, like most of the ones we handle, involves multiple streams of legal rules. For example, you have the first issue as to what someone can do under the banner of “health coaching,” without a healthcare license, and then, that can vary by State.  Some states licenses require registration to use a title for, fitness training, or personal training, for example.

Then you have to separate out the various products and services that they want to sell and assess the legal status of each line of revenue.  For example, providing health and wellness videos could be seen as simply offering education and information online – like what I’m doing in these videos; whereas the video chats involve actual advice from coaches, and we want to work with Leo, Martha and Ted to structure how that advice gets packaged and delivered, so it doesn’t obviously run afoul of prohibitions against practicing medicine or psychology without a license.

Nutritional recommendations have a safe harbor under California law—Business & Professions Code, Section 2068.  But other states have mandatory licensure for anyone giving nutritional advice.

Moving along to answer Ted’s question about HIPAA, the federal regulations probably do not apply, since no one here is submitting reimbursement claims electronically; yet there are still State laws governing privacy and security that the venture would be wise to follow, and we can talk about those in a legal strategy session.

Protecting IP (intellectual property) is yet another aspect of the legal puzzle that the legal team has to resolve. The method itself might possibly be protected under copyright law, or maybe contractually as a trade secret, even though there might be nothing patentable.

And the health and wellness startup will need some key agreements drafted—for example, one to govern its relationship with the coaches, and another to manage client expectations, and set the terms for delivering the coaching services and products. The website itself is going to need a Terms of Use and a Privacy Policy.  There could also be different agreements with service providers or vendors.

We’ve seen this kind of venture in all sorts of variations.  Some add genetic screening or data-driven recommendations or DTC (or direct-to-consumer) lab tests, phlebotomy, lab interpretation, and all sorts of add-ons.  We’ve seen a lot of different things.

Thanks for watching. Please contact us with your questions or if you’d like to book an appointment. Here’s to the success of your healthcare venture, we look forward to speaking with you soon.