In today’s video, we talk about the slippery slope between practicing medicine, on one hand, and hanging up your physician or psychology or other license hat and doing health coaching, on the other.  Today we’ll look at a business model that involves interpreting what other doctors or clinicians are saying and then translating that advice into plain English, following that by coaching patients on how to navigate their medical or psychological journey.

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

Health coaching vs. medicine, we’ve covered this a lot in prior videos and our blog.  But here’s the slight shift.  This business model involves the following things.

Let’s say looking at the notes of the treating physician for the customer/patient and making sense of those notes.  Translating the medical advice and medical records into something more understandable.  Providing graphic and visual versions of the treatment plan and maybe summaries of some backup medical research.  Or providing handouts, making handouts that explain what to do and what not to do.

The question here is whether this is the practice of medicine or can be considered health coaching. What difference does it make? If it’s medicine, only a licensed doctor can offer the services. If it’s health coaching and not medicine, then the business model is ripe for anyone, licensed or not. You or I could do it.

The way we would analyze this scenario would be to take our favorite filter, which I call, the Joe the Plumber test.  We ask: is this something Joe the Plumber could do?  Or does Joe need to go to medical school and get a license?

A lot depends on the details and nuances of the business model.  If all the company is doing is taking the medical diagnosis and treatment plan and translating that into charts, graphs, and compelling visuals, and it’s just a straight translation and provides basic background information – let’s say the way an app would track your intermittent fasting and give you some basics about the benefits – then it’s more likely they could fall under “health coaching” and not be seen as the practice of medicine.

On the other hand, if the business model means that someone is re-explaining what the doctor said in medical terms, in ways that require professional training. Basically you have a physician saying the same things in different words, this could very well be considered professional services, professional medical practice.

Now, if it’s just a business, then it’s smart to get your standard insurance coverage for any business, including any insurance that might be necessary for a digital wellness model.  On the other hand, if it’s medical practice, then it’s prudent to get medical malpractice coverage.  For a business, you wouldn’t need an informed consent, but you would for a medical practice, although there are some consents and disclaimers, we might help you draft.  If the service gets billed out to third-party insurers, you probably have a medical practice.

And if it’s a medical practice, the professional fee can’t be split between the medical doctor and the business.  But if the service is simply health or wellness coaching, there is less risk of enforcement for fee-splitting if the business itself, let’s say the software or the app takes the lion’s share of the profits and then hires coaches let’s say as independent contractors.

I wouldn’t exactly say that the Devil is in the details, but the legal work certainly could be.

If you have a business like this, or something along these lines or one of the many, many variations we’ve seen, and you’re interested in an early read on your business model, you would likely benefit from a Legal Strategy Session with a member of our Legal Team.

Thanks for watching. If you have questions, click on the link below, cohenhealthcarelaw.com/contact, to send us a message or book an appointment. Here’s to the success of your healthcare venture, we look forward to working with you soon.