Telehealth, Tele-Counseling Legal

Telehealth, Tele-Counseling Legal

In today’s video, we describe legal strategies to help your telehealth, tele-counseling practice flourish.

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

Today’s scenario involves a licensed psychiatrist, clinical psychologist, MSW, LCSW or LPCC who wants to expand their practice into California from another state.  Our hypothetical client’s wife is a psychiatric Nurse Practitioner.  Together they treat patients with addictions, sleep disorders and fertility issues.

Bill, the mental health counselor-psychiatrist, wonders what kind of business entity to create and how to navigate potential anti-kickback issues; while Lana, the NP and his wife, is curious about scope of practice issues.

Like most clients, Bill and Lana present a host of legal issues, and the right healthcare attorney will understand how to tease out, explore, and resolve the different threads of legal risk and risk mitigation.

For example, regarding the kickback issue, we’ve previously talked about how hiring independent contractor clinicians does carry legal and regulatory risk; and that two potentially work-arounds would be: number one, to hire the clinicians as employees; or second, to use an MSO model.

We delve into the employment and the MSO legal strategies lots of places elsewhere on our Healthcare & FDA Law Blog.  The employee (W2) model is less risky from a healthcare law perspective, although understandably a bit most costly and burdensome than an independent contractor (1099) from an employment law perspective.  A seasoned attorney can help clients navigate the tradeoffs.

Professional medical or mental health services should be provided through the professional medical corporation, professional psychology corporation, or otherwise as indicated in a relevant state statute devoted to professional corporations.  Some states, like California, let you “mix and match” various licensed healthcare professionals within a single professional corporation—for example, doctors and nurses, which would be advantageous if Bill is an MD psychiatrist and his wife a psychiatric NP – among the many combinations that are possible.

Scope of practice for the Non-MD practitioner varies by state, and typically is set out in the state’s licensing statute, or regulations; one key, though, is going to be to differentiate between the NP and the RN, and understand how, under State law, each one needs to work with the physician, admittedly under a slightly different banner.  Also, non-physicians have no legal authority over the nurse, so if Bill is not an MD, the scenario requires a better understanding of the extent to which Lana, an NP, has practice autonomy under some kind of supervision, or possibly collaboration, agreement.

The MSO can house technology, intellectual property, and the business administration of the clinical practice.  But understand that Bill and Lana might be shareholders in the PC as well as the MSO and that there might be other clinical practitioners in the PC, and non-clinicians in the MSO.  A shareholders’ agreement in each entity would be prudent, it’s the right thing to do.

If either the PC or MSO expands into California, it might have to register and pay taxes as a foreign professional corporation in California.

Mental health clinics also could be subject to facility licensing and other regulatory requirements.  There are lots of issues to look out for, here.

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

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