Legal Risks and Risk Mitigation for Integrative Medical Practices

Legal Risks and Risk Mitigation for Integrative Medical Practices

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    [Dana Porcalla]:

    Hello, everyone. Welcome to another Cohen Healthcare Law Group webinar. My name is Dana, and I am the marketing director of Cohen Healthcare Law Group. With me is our tech guy, Oki, and our senior care team member, Christian. Today we will talk about legal risks and risk mitigation for integrative medical practices. I know a lot of you have questions like, what documents do I need to be able to practice safely, or am I allowed to practice in a certain state when I am licensed in another state?

    Well, today we will go over some of the common exposures involved and discuss key legal guidance in setting up and nurturing your integrative medical practice.

    I know most of you, if not all of you, are integrative medical practitioners, but are there any non-integrative practitioners in the room today? Nurses, entrepreneurs? I can see some that are non-integrative based on the client’s list that we have. Well, I hope that this webinar will be able to give value to you and to your venture as well.

    Now without further ado, let me introduce to you our keynote speakers for today, starting with our senior associate attorney, Matthew Stokke. Matt, would you care to introduce yourself to the audience?

    [Matthew Stokke]:

    Thank you, Dana. Yes, hello, everyone. My name is Matt Stokke. I’m an attorney here at Cohen Healthcare Law Group and been here for a few years now and been practicing for almost 10 years and have focused on healthcare law specifically during my practice. I’m based in Orange County, California, if any of you are close by here. I’ve been helping both healthcare providers, management companies, and health and wellness companies mainly from the regulatory compliance standpoint, focusing on just that so far in my practice. I look forward to helping you out today with this webinar.

    [Dana Porcalla]:

    Thank you. Joining Matthew today is our of counsel attorney, Chris Esseltine. Chris?

    [Chris Esseltine]:

    Thanks, Dana. My name is Chris Esseltine, and I am a healthcare and FDA attorney. I’ve worked for large law firms and large companies. I’ve represented Fortune 500 companies to small startups. If there’s a company that has done something in the healthcare space, I’ve usually represented that kind of company as well as many, many companies, food and beverage, pharmaceutical, medical device, certainly nutrition and supplement companies in the FDA space. So happy to be here with Cohen Healthcare Law Group and also happy to be here today with you.

    [Dana Porcalla]:

    Thank you, Chris and Matt. We’ve asked the help of Integrative Oncology Working Group, or IOWG, to send us their best questions, and we have included their questions in the presentation for today. After this presentation, we will have a Q&A section where everybody’s welcome to participate by using the Q&A icon that you’ll find on the Zoom.

    Let’s begin with our discussion. Our first question is, what are the common exposures involved that you have to watch out for when you’re establishing and growing your integrative medicine practice?

    Matt, would you like to answer this one?

    [Matthew Stokke]:

    Yes, thank you, Dana. I think this is a good question. Whether you are just starting up your practice or you’ve been at it for a few years now, maybe many years, it’s always important to do that check-in and see if you are operating in a way that mitigates your risk as most as you can. I always like to start with integrative practice approach.

    As you all know, probably more so than I do with your clinical knowledge, there are many approaches out there that are growing in popularity and have been legitimized in different scientific studies and research out there.

    I always say to clients when they come to me with their integrative practice, is the approach that you’re using validated by a respectable minority of other physicians and clinicians in your community there or would it be? This is a question that often the medical boards have historically asked when there is some issue, some complaint that has been brought by a patient against the practice if it’s an approach that is not as widely used as the more conventional medical practices out there.

    They will oftentimes do some research into it, whether it has been validated by scientific studies. You want scientifically sound studies that follow the standards to arrive at such conclusions. That’s always the substantive is what kind of approach is the practice using, and would it be able to validate it as a safe approach for the patients as patient safety’s always the number one concern of the boards out there.

    Another area where exposure is educating and informing your patients as to the particular approach. There’s some practices that obviously do it better than others, and we’ll get into this later, but one obvious component of that is the written informed consent that your practice has with patients, letting them know about the approach, the nature and the theory of your particular medical approach here. Not only just handing them a piece of paper but having an ongoing discussion with the patients, answering their questions about the particular approach.

    Some other common areas I can just list off, of course, having a good malpractice policy that addresses your specific approach here is recommended, highly recommended. Making it clear that it’s not necessarily a conventional approach to the practice of medicine is an important part of your discussion with a malpractice insurance agent. Sometimes there are specialty policies out there for functional medicine and other types of practices.

    Coordinating your care: If your patient is seeing a more conventional medical practitioner, if they have a primary care provider, making sure that the care you’re providing is not interfering in some way with the other doctor who is caring for the patient.

    Other quick ones: Having a clear payment practices policy with your patients, letting them know that some of these services that are considered complementary alternative may not be covered by their insurance policy, whether that’s PPO, HMO or Medicare, letting them know. For Medicare patients, there are specific forms you want to enter into if you believe your services won’t be covered by their policy.

    Those are just some ones that I jotted down that I wanted to highlight. Chris, you’re welcome to jump in with anything that I missed.

    [Chris Esseltine]:

    Thanks, Matt. You really have to be careful, just as Matt said, to make sure that the patient understands what he or she’s getting into. There are people who don’t really know, they don’t understand the alternative or the functional medicine or the integrative part of what your practice is offering. Then there are people who understand it, but sadly, they want to come back after the fact and complain and make a fuss. So you just always want to make sure that it’s very clear not only what they’re signing up for, the kind of treatment they’ll be getting, but you want to make it clear that they know and acknowledge and can’t come back after the fact and say that they didn’t know.

    It’s unfortunately just a fact of life in our world today, but especially in the healthcare field, that there are some people who want to cry foul after the fact even if they did know what they were getting into.

    One of the other risks that I’ve seen in my practice is you have doctors or, let’s just say, practitioners who have a traditional medical component, and then they want to do other things like functional medicine or health coaching or that kind of thing. In some cases, they want to say, “Well, all I’m doing for this patient is really what would be considered, say, health coaching.” Sometimes it’s telemedicine and they’re reaching out to patients in other states. The practitioners aren’t necessarily licensed in those states, and yet they’re seeing those patients in other states, which is a big no-no. So they’ve said, “Well, I’m just doing health coaching in those other states.” Or to say, even if it’s a brick and mortar location and the patient comes in directly in person and the practitioner wants to argue, “Well, I’m not really practicing medicine in this particular case because I’m doing health coaching.”

    If you have a license, that’s what the states will look at. If you are doing what would be considered health coaching and what someone could do not needing a medical license, it really doesn’t matter. Because if you have that license, those patients are coming in under the auspices of that provider/patient relationship and under the auspices of that license. So be careful that you’re not switching hats: “Well, right now I’m wearing the health coaching hat.”

    Now, if you’re a doctor and you have a patient and you’re doing health coaching, you’re allowed to do that under your license as a doctor. If anybody ever complained, if you ever got audited, the state would not consider that activity health coaching, or this other sort of alternative thing, anything other than really the practice of medicine because you’re allowed to do those things under your license. So just be careful that you don’t start to divide your practice up into different components.

    Realize it’s all going to be, in almost every case, under your license and, therefore, considered your regular practice and the practice of medicine. So that’s one thing to watch out for.

    Another thing is make sure that you’re actually trained. I know it’s a strange thing to say. Make sure you’re actually trained in the alternative things or the complementary things that you’re bringing to the table in your practice. There are a lot of practitioners, chiropractors, naturopaths, nurse practitioners, doctors, what have you, that want to make a little extra money doing something more, or they would like to get out of more of the traditional things into more of the holistic or functional medicine or alternative space, and they really aren’t trained in those particular things. They don’t have specialty. They don’t have any kind of certification or training.

    Make sure that if you’re going in a different direction or adding something complementary or integrative that you actually have that training. Because if there is any kind of harm or even if a patient says, “Well, this didn’t work,” if they find out you don’t have specific training in that, that can get you in trouble. Of course just in general, you want to make sure you have training in things that you are giving your patients and treatments that you’re offering especially if you’re holding yourself out in any way, on your website, marketing, even speaking directly to a patient. If you’re holding yourself out as a specialist in a certain area, make sure you actually have training in that specialty.

    [Dana Porcalla]:

    Okay, great. Thank you so much for your answers, Chris and Matt. I’m sure there are a limited number of exposures involved, but what’s important is you find a lawyer that suits your practice. Would you like to move on to the next question?

    Do you have to be licensed to offer telemedicine consultation or a second opinion in the US or within states or outside the US?

    Are there states that allow you to provide second opinions or telehealth visits without the need for licensing?

    Chris?

    [Chris Esseltine]:

    Yeah, I’ll take that. Thank you. As I mentioned a little bit in the previous answer, if you are reaching out to a patient in another state or if they reach out to you from another state, every single state in the union, with the exception of Florida to an extent, says that you have to be licensed in that state. So if it’s a situation where the patient comes to you in your state, sees you in person, or even, I guess, by telemedicine is fine, and that person is visiting another state, or maybe it’s an elderly person, a snowbird, and they’re staying in Florida for four months, if their resident isn’t in that… sorry, residence isn’t in that other state and it is in the state where you are, it’s usually fine to do that.

    There are no specific laws in states saying, “Yes, it’s fine to see a patient in our state so long as that patient doesn’t officially reside in the state.” That’s generally the rule of thumb, and no one’s gotten in trouble for reaching out to another state where that patient isn’t really a resident of that state.

    But if the patient lives in that other state, resides in that other state, you do need to be licensed in that other state to practice telemedicine. Otherwise, the states would consider it practicing medicine in their state without a license. So be very careful of that. The great thing is there have been measures taken by the various states to make it a lot easier for practitioners to get licensed in these other states. So that’s a great thing.

    One of the few positive things that happened with COVID is those efforts were made, but you still have to make sure you’re licensed to see residents of another state.

    Now, second opinions are a bit of a gray area simply because some people consider them the practice of medicine and some do not. For example, if a patient reaches out to a physician directly for a second opinion, that physician now becomes that patient’s provider, and medical advice is being given directly to the patient. If the patient’s physician, whether it’s a primary care physician or a specialist, reaches out to a physician of another state and it’s just a consultation between those two physicians, that generally isn’t considered the practice of medicine, and therefore, you don’t have to be licensed in that other state. It’s a bit of a gray area.

    The states really haven’t codified this whole situation, but you just always want to be careful doing something directly with the patient via telemedicine or otherwise in a state where you’re not licensed.

    [Dana Porcalla]:

    Thank you so much, Chris.

    Our third question is, is it possible to create a separate integrative medicine practice with an insurance-based practice? If so, how?

    Matthew?

    [Matthew Stokke]:

    Thank you, Dana.

    I just wanted to add one other thing to what Chris was saying. I’ve been getting a lot of clients asking about the different… Basically, as Chris referenced, during COVID there was a relaxation and in some cases exceptions made in different states allowing out-of-state practitioners to practice there. There’s a lot of rumors about that and whether they still apply. A lot of them have closed that down.

    It’s really a state-by-state question. Some of these laws have very specific situations that are defined in their laws defining when and for how long a practitioner can provide services to a patient residing in another state. So keep that in mind. It’s really a moving target depending on the state. Chris also did mention some states offer a fast track to get licensed if you have a lot of patients that are going to be in a certain area now.

    The Interstate Medical Licensure Compact offers a fast track. Certain states are part of that. If it was worth it for you to get licensed in another state, that’s definitely something to look into there.

    With regard to the next question, yes, this is a very interesting question, and we get it a lot. Is it possible to create a separate integrative medicine practice with an insurance-based practice? Again, it’s one of those questions that will change depending on what kind of insurance companies you’re credentialed with.

    For the most part, and this is a very general statement for today’s discussion, integrative practice services, functional medicine, holistic care, is generally not covered by insurance. Of course, that’s going to depend on the specific billing manual of the insurance company which are updated from time to time. A lot of those insurance companies are now recognizing these integrative practice services as covered in certain cases.

    Can you start a separate cash practice when you are credentialed with insurance, Medicare? With Medicare, what I’ve found is that your NPI, your name with Medicare will follow you around even to other practices where you practice. There’s going to be some level of risk offering those services in a cash context when you are opted in to Medicare.

    Same kind of idea goes with the private insurance context. Some of those provider agreements with the insurance companies will even specifically prevent you from doing this. Having represented some practices before undergoing audits, I’ve even seen the insurance companies point to those other practices as some type of foul play in their eyes.

    It does come down to whether the services you’re offering in your cash practices are even covered. If they are covered services and you’re charging a cash rate, that’s when the risk is very high that you may be violating a provider agreement with your insurance company or with Medicare. If they’re non-covered services, the risk may be lower because they wouldn’t have even been covered in your insurance practice.

    But still, there are those sections to look out for in your provider agreements. If they try to prevent you from doing that, they could say that you’re in breach a contract of the provider agreement and theoretically make an issue out of it.

    Chris, you have anything to add to that you’ve seen?

    [Chris Esseltine]:

    Yeah, absolutely. I’ve had clients come to me and say, “Well, I’m working at a hospital so I’m credentialed with Medicare, but I want to start this separate cash-based practice. Can I do that?”

    Unfortunately, you’re right that there’s a rule that’s buried in a bunch of rules, it’s really hard to find, but nevertheless it’s there and Medicare will hold you to it, which is that Medicare follows the provider. So you can’t just open a separate practice and say, “Okay, this is cash pay because I opt out of Medicare.” It’s all or nothing. So if you opt out of Medicare, realize you can’t be credentialed with Medicare in any other job, any other practice.

    It’s true. There are some insurance providers, some of the commercial payers, for example, that are fine with you charging, say, a membership fee or a concierge fee, something like that, or maybe charging a little extra money for longer patient visits, things like that. Then there are commercial payers who say, “That’s absolutely a violation of your contract with us.” Medicare will absolutely find that to be a violation.

    The rule of thumb is if it’s something that the payer, whether it’s Medicare or someone else, pays for already, you can’t charge a fee for that to the patient. Medicare is very, very strict about that. So some people will say, “Well, I’m giving my patients 24-hour access on my cell phone.”

    Medicare says that’s something that technically is covered by Medicare. If you want to give someone that much access, that’s fine. We pay for access to the provider, so you can’t charge extra for that. Or some providers say, “Well, I want to give these people an hour. I do functional medicine, so they need at least an hour visit so I can go over everything. On the initial visit, it’s three hours that I need.” Medicare says, “We pay for the visit.” Now, they pay for maybe a 15-minute visit, but Medicare says, “We pay for the visit. Therefore, if you want to take three hours, that’s your business, you’re free to, but you can only get reimbursed for those 15 minutes, and you can’t charge the patient extra money for a longer visit.”

    So the key to it is finding those services that absolutely are not covered by Medicare, and it’s hard to figure that out. There’s a bit of a gray area there sometimes. We do have the expertise to help you through that whole process and figure out what technically under the definition of Medicare or the commercial payers is a covered service, what is not, and we can help suggest some things that you could integrate into your practice. But you’ve got to be very careful, especially with Medicare, about charging money for things that these payers consider that they already cover.

    [Dana Porcalla]:

    Thank you, Chris and Matthew. Let’s move on to the fourth question. Are there options to be able to see Medicare patients in a direct-pay model without opting out of Medicare? Would you like to answer…

    [Chris Esseltine]:

    I’ll take that one, but I will give credit to my colleague, Matt, because he came up with this great idea. Medicare only applies, obviously, to people who qualify for Medicare, so of a certain age, and there are some other things. For example, if you’re in renal failure, Medicare will cover you. So you can do a cash pay model and not opt out of Medicare. You’re just not allowed to see the Medicare patients, or if you do, let Medicare pay for those services.

    But those who don’t qualify for Medicare don’t fall under that Medicare rule obviously, and so you’re not bound by it, so you can do the cash pay model. But always make sure that if there’s any kind of commercial payer contract that you’re bound to, that you’re allowed to do what you want to do within that contract as well.

    [Matthew Stokke]:

    Just thinking out loud here, Chris, if a practice decides to see people who are not Medicare eligible and charging those cash rates, it’s going to be important for your practice to really monitor your patients, especially those that are on the cusp of becoming Medicare eligible. The minute they turn 65, whatever the age is now, that they are then treated differently, and those cash rates are no longer being charged.

    [Dana Porcalla]:

    Now, on the fifth question that we do have we’ve broken down into three. The first bullet that we have is, what kind of a risk waiver should you ask patients to sign to offer them integrative advice or treatment?

    Would you like to answer this, Matt?

    [Matthew Stokke]:

    Sure. Thanks, Dana. This is a good question. I always say to even conventional practitioners the informed consent is going to be one of your best allies in the event that there is a patient that makes a complaint to a medical board, initiates a malpractice action, whatever it might be, whether it’s frivolous or not.

    The first things that at least the board always asks for is the records from the day of the treatment and maybe records over a period of time, the episode of treatment. They would ask for those records as well as the informed consent that you had the patient sign. Again, state laws will vary in terms of what those informed consents need to contain, the different elements.

    The general elements that are required, as you know already, are the risks involved with the service, the benefits, the alternatives, and of course, information about the service, the nature and the purpose of that service, and in most cases, even the risk level of the alternatives as well so they can make an informed, balanced judgment as to whether to proceed with these services.

    I’m bringing up an example here of a state. Texas is a state that has very comprehensive rules that apply to integrative practitioners. Texas law says that whenever complementary alternative license services are provided, they list out very specific elements that need to be in that informed consent.

    I’ll just name a few of those right now: the objectives, the expected outcomes or the goals of the proposed treatment, the risks and benefits, as I said, the extent the proposed treatment could interfere with any ongoing or recommended medical care.

    One that I thought was notable was, as the practitioner, you should have evidence or a file with studies indicating that the treatment offered would have a favorable risk/benefit ratio compared to other treatments for the same condition.

    I would even carry, even though this is just limited to Texas, these very specific elements, and there’s a few others I didn’t mention, I think it’s a good principle to use in other states as well. I don’t think there’s anything wrong with a practitioner over-explaining the risks and the different information about the services you’ll provide.

    End of the day, if the board saw that, that would most likely be in your favor that you have informed them appropriately.

    Those are some major elements that I always recommend no matter whether a client is from Texas or another state. Of course, if you are providing health coaching services, non-licensed services, some states have safe harbor laws for these non-licensed, complementary, and alternative services that also require specific elements to be in those informed consents.

    They’re also called informed consents even though it’s not licensed services. Again, you can carry these same principles whether or not your state has a safe harbor to other states. It’s going to be a state-by-state analysis for the most part here. Some states are a little less open to the idea of complementary alternative integrative practice than others. But if you’re moving forward, these are the principles that you can use and implement in your practice.

    [Chris Esseltine]:

    I’ll take the next two. What kind of language can you use for your consent forms? Clear. The biggest word, the most important word I can use here is clear. Again, it’s all about making sure the patient understands what he or she is getting into, what’s going to happen. Then there are no surprises, and they can’t come back and claim this or that or complain.

    In terms of specific language, it really depends, again, as Matt said, on your state. It depends on exactly what the particular treatment is or what you as a practitioner will be doing. So it’s going to be a situational analysis. Again, we can help you in whatever your situation is with whatever the language needs to be.

    Are there situations where consent might not be necessary?

    We’re lawyers, we would never say, “Oh yeah, absolutely.”

    Now, in a general sense, are there situations where you don’t need consent? Well, sure.

    They’ve been informed already. They’ve signed consent forms. They’ve signed your waiver forms or your terms and conditions. You don’t need to get consent every single time you see a patient or every single time you perform a particular procedure. If it’s something new and something they don’t know about, especially if it’s a little riskier or a little scarier for the patient or what have you, then, sure, it’s always a good idea to get another consent just in case for that brand new procedure that they haven’t been exposed to, that they haven’t formally consented to. But generally, no, you don’t need redundant consents.

    [Dana Porcalla]:

    I already see a lot of questions on our Q&A, but we would just like to introduce to you our newest brand, MSO attorneys. For those of you who have MSO-related concerns or managed services organization, you may visit our website www.mso-attorney.com. Yes, I think Christian has sent the link to the chat. Matt and Chris, would you like to start having the Q&A section? You can pick the questions yourselves.

    [Matthew Stokke]:

    Sure. Just look through these questions here. It looks like we got a few of them. I see a lot of questions about what is adequate training. It’s a good question, a fair question. I don’t have a specific answer for you today. But what I can say is that, in general, if you’re going to be certified as a specific type of practitioner, you want to check out the organization that is doing the certification, number one.

    There are some medical regulations in certain states that recognize in their regulations certain organizations for credentialing and for certifications. So that’s one place to start by looking at the state regulations there. There may be some information about that directly on the medical board of your state.

    A lot of times those FAQs, the little dropdown tab about laws and regulations are very helpful, and they provide links to different publications about certifying organizations like that.

    I think it does have to do with the quality of the organization. Each organization is going to develop its own standards for demonstrating competency in a certain approach. With regard to how many training classes or programs you need to take, that’s most likely going to have to do with the kind of approach, the kind of services, and the standards of that organization and potentially any state regulations if that state has comprehensive regulations like that.

    [Dana Porcalla]:

    Chris?

    [Chris Esseltine]:

    There are two here I wanted to address. One asked about the specific telemedicine law in terms of licensing in Florida, how it’s a little different than the other 49 states. Florida says you don’t have to be licensed to practice law to do telemedicine, but you do have to be registered. There’s a specific link you go on and register and say, “I’m a physician, I practicing medicine and licensed in such-and-such a state, and I’m registering to see patients in Florida via telemedicine only.” So it allows you to do that. Otherwise, the other 49 states say you actually have to be licensed.

    There is another question, patients flying in to see a particular practitioner in a given state. They’re from another state, they fly in to see that practitioner, they fly back to their home state. Can the practitioner follow up via telemedicine in that other state? The answer is it’s not clear.

    There’s no statutory authority to do that except to say there is a responsibility when you have a provider/patient relationship to follow up, to make sure that the person’s taken care of, to say, “Oh, well, they’ve gone back to the other state, I can’t talk to them” would be irresponsible. Because that provider/patient relationship is already established, especially where the patient came in to that provider’s state, even though there’s no absolute statute saying, “Yes, this is fine,” nobody’s gotten in trouble for doing that, and it certainly would be appropriate to do that. How long that could go on?

    Would it be an ongoing thing where now you’re only doing telemedicine, reaching out to that state where you’re not licensed? Again, there’s no bright line rule, but you don’t want to abuse the privilege of being able to follow up after an in-person visit.

    [Matthew Stokke]:

    I see one question.

    [Dana Porcalla]:

    Matthew?

    [Matthew Stokke]:

    Yeah, I see one question here about, if you have a cash practice, a cash integrative medicine practice, I think the question is how to make sure that you don’t have to do primary care as the practitioner. That has to do with informing your patients in your informed consent that you are a specialty integrative practice and only providing those services.

    Sometimes in these informed consents when I prepare those, I will put a specific “check the box” or “initial here” as the patient that you have a PCP, a primary care provider, that you will continue to see, and even sometimes, “… and I acknowledge that I must undergo a physical exam every year with my primary care provider.” There are certain protections you can add to those documents if you wanted to be overly careful there.

    The primary idea is just letting them know clearly, maybe even putting it on page one, that you only provide these services at the practice. You’re not responsible for the primary care services that are provided at the other practice. Again, there’s going to be some states that have some regulations about that and maybe specific notices that need to be in the informed consent. That’ll be just a state-by-state analysis there.

    [Chris Esseltine]:

    I see a question here. What if you have Medicaid patients? Medicaid will pretty much follow the Medicare rules. It’s CMS. It’s the Centers for Medicare & Medicaid Services. So if you have opted in to Medicaid, generally you can’t charge money for services that are provided by Medicaid.

    But more importantly, if a patient is on Medicaid, there isn’t a big chance they’re going to be able to afford your cash pay services anyway, so that should just inform you on a practical level.

    Let’s see. There was another question here about, if you’re a physician, for example, and you’re doing things like nutritional counseling and health coaching and that kind of thing, is that covered under your malpractice insurance? We really didn’t talk about malpractice too much.

    Generally, if something’s covered under your license, if you’re allowed to do something under your license, an MD can’t adjust the spine, for example, like a chiropractor can, but an MD certainly can give all kinds of nutrition counseling and things like that. Things that, say, a health coach could do, an MD is entitled to do, and so, therefore, it’s under the auspices of the license and, therefore, under that medical malpractice insurance.

    [Matthew Stokke]:

    I’m seeing a few questions here about how often or a) do you need patients to sign the informed consent? Yes, they should be signed. They must be signed by the patients. Then b) how often should you have them sign that informed consent? It’s a good question. Most of the laws out there don’t have a clear answer for that. I recently looked into it.

    What I can say is that the general recommendation there is to get your patients to resign those informed consents every year. There’s exceptions to that. If your practice mid-year decides to offer integrative medicine services and you were a conventional practice before that, that would be a good time to send them an updated informed consent describing the nature and the theory of those integrative medicine services. As your practice evolves and adds new services, we recommend getting a new informed consent signed, talking about those new services.

    [Chris Esseltine]:

    There’s a question here from someone. They wanted a little clarification on what was talked about earlier about telemedicine. Yes, the law is you need to be licensed wherever the patient is physically present during the telemedicine visit. When I said reside, I mean not necessarily their place of residence per se, but wherever they are at the time of the visit.

    However, there’s some gray area there as well. Because, again, if someone is a resident of Florida and they’re visiting their mother in Washington State for two days, is that really a violation? Are you practicing medicine in the state of Washington if it’s just telemedicine and the person happens to be there?

    It isn’t black and white. But, again, no one has gotten in trouble for doing something like that because there is that patient/provider relationship that’s established. There is a need to be seen, and the fact that you’re just traveling or something, the states don’t care about that.

    What they care about is the actual invasion of their state by someone who isn’t licensed in their state. So if you have a resident of Florida and they happen to be in Washington State, it’s really still the state of Florida that governs the licensing and that interaction between the provider and patient. Is it 100% black and white, “Oh, it’s okay to do that”? No.

    But at the same time, nobody’s gotten in trouble for it for a reason, and that’s because the states care about taking care of their residents, looking out for their residents, and not so much where someone’s traveling for a few days.

    [Dana Porcalla]:

    Matthew, would you want to answer one last question?

    [Matthew Stokke]:

    I see one about if you are a licensed healthcare provider in one state but want to offer nutrition and health coaching via telehealth in other states where you’re not licensed, what would you need to set up a separate business entity for the health coaching to differentiate… or would you need to set up a separate business entity for the health coaching to differentiate it from a medical practice?

    I’ve had a number of clients come to me with that same question. If you’re licensed, for example, in California and only California and you want to start offering health coaching services, nutrition services to clients across the country, yes, in that case, and it’s going to be a case by case depending on your situation, but I would recommend setting up a different company, a non-professional company when providing those health coaching services in other states. It helps differentiate you as your medical cap from your non-licensed services cap.

    One heads up about providing health coaching services and nutrition services in other states in a non-licensed capacity is that some states do have licensed nutritionist boards. They require you and they only allow licensed nutritionists in that state to provide those nutrition services. The definition of what is nutrition services varies on the state, so you want to always try to distinguish your services if you’re not licensed there, of course, from the state law. But, yes, that is theoretically possible.

    Other states just don’t have licensed nutritionist boards at all, California being one of them. So there’s a little more leeway in certain states, but it’s a moving target based on the state at the end of the day.

    [Dana Porcalla]:

    Thank you so much…

    [Chris Esseltine]:

    Let me just jump in there. Matt’s exactly right. There are some states that require you be licensed as a dietician or nutritionist. If you’re doing anything specific, if you’re giving a person an individualized eating plan, that would be considered being a nutritionist or dietician. So make sure that you’re licensed if you have to be. But also, the one thing you want to make sure you do, if you are a doctor, a chiropractor, whatever it is, and you just want to do these nutrition consulting services, make sure in all of your consent forms and all of your marketing materials that you say “While I’m a doctor, this is not under my license. This does not create a doctor/patient relationship, etc., etc.”

    Make sure that’s always very clear to not only your clients because they’re no longer patients, but also in all your marketing materials so you can’t get accused of practicing medicine out of state without a license.

    [Dana Porcalla]:

    Thank you so much, Chris and Matthew, and thank you so much for sending in all your questions for those questions that we were able to answer. For those who have further questions, you are always welcome to reach out to us.

    You may call us at 310-844-3173. I think Christian has sent the link for our contact form.

    I guess that wraps up for today’s webinar. For those familiar names that we have joining us today, thank you so much for watching our webinars and for always giving us your time.

    For those fresh names that we have here in the room, I thank you so much for joining us, and we hope to see you again on the next webinar.

    Thank you. Goodbye for now.

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