In today’s video, we discuss whether acupuncture laws allow remote practice or digital practice by telehealth.

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

Typically, when we get telehealth clients, they are licensed MDs or DOs, since most healthcare regulation in the U.S. has to do with telemedicine.  But occasionally, psychiatrists, psychologists and MSWs will inquire about telehealth and remote practice.  We also get chiropractors and other licensees who want to operate as health coaches.  Please see our other videos, we talk a lot about health coaching and legal issues and some risk mitigation.

Acupuncture is little different, we typically expect in-person treatment with needling, or perhaps cupping, along with some herbal recommendations.  But what if an acupuncturist wants to open a nationwide practice, giving herbal recommendations?

To answer this, you have to consider the laws of the home state—where the acupuncturist or practitioner of traditional oriental medicine resides and is licensed—and the remote state, where the patient is located; that’s how telehealth works.  The laws of both states apply.

The home state usually will not have any relevant regulation.  In some states, like California, the basic legal rule is that you must abide by standard of care whether you’re using telehealth or in-person.  This makes a lot of sense but it can create regulatory exposure if, for example, you’re supposed to do a tongue diagnosis, or a pulse diagnosis, and you’re supposed to do it in-person instead of virtually or digitally. That may change with technology, but right now there’s a bit of disconnect.

The remote state may or may not prohibit out-of-state telehealth practice. It’s possible that there’s just no regulation at all. So, we have to look into that and try to figure it out.

We do recommend that you have a strong telehealth consent form drafted; that you clarify with healthcare legal counsel whether you are trying to operate within your licensed profession or try to style yourself as a coach and disclaim professional practice; We also recommend that you contact your insurance broker to ensure that your malpractice liability coverage will cover you for what you are trying to do. Also, manage privacy and security, look at HIPAA, state analogs, and ensure that you have strong confidentiality and that you respect the privacy and security rules.

Thanks for watching. Let us know if you have any questions and we look forward to working with you soon!