In today’s video, we return to the question of health coaching and whether licensed medical doctors, psychologists, marriage and family therapists, behavioral health specialists and counselors, can call themselves “health coaches” and provide mental and behavioral health services online.

Many of our clients have asked us this question, because health coaching is very popular.

I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients navigate healthcare and FDA legal issues and launch successfully to grow their health and wellness product or service.

A key legal issue that health coaches encounter, whether a private practice or business, is the fact that medicine is a licensed profession, so people who are providing “medical” services have to have a medical license.

If you’re NOT a licensed healthcare professional, the question is whether you’re engaged in unlicensed practice of medicine.

If you are a licensed healthcare professional, such as an MD, but not licensed in the particular state where the patient is located, there can ALSO be a question as to whether you’re engaged in unlicensed practice of medicine in the remote state.

And, if you try to “take off your professional hat,” there can be a question as to whether you’re still acting as a clinical professional and giving clinical professional healthcare advice.

For example, if the business model involves hiring an MD, or a chiropractor, acupuncturist, registered dietician or licensed nutritionist, nurse, behavioral health consultant to give advice, the question becomes whether that practitioner is engaging in clinical activities online, or simply giving education and information.

This is a slippery slope and much depends on the exact business model, the way it is configured. What professionals are included? What does the statutes say? What can the health coaches do, exactly, and what does the business prohibit them from doing?  Does it have any guidelines? Do they use their professional title?  Do they speak in diagnostic categories?  Do they address physical and mental health conditions—I know it’s hard not to, but how much of the advice is really about disorder and pathology and disease in the eyes of the board, and how much is simply about healthy habits and things like fitness and overall nutritional patterns? And even there could be trouble.

When we advise clients in the health coaching space, we evaluate the way they’ve configured these many data points, and many others. Two key activities that often trigger concern are, ordering and interpreting lab concerns.

Then there are questions about whether or not it’s meaningful to provide a HIPAA-compliant portal, and whether the business even needs to comply with HIPAA in the first place.  We also get into drafting appropriate disclaimers, agreements with Business Associates, and lots of other deep in the weeds, regulatory questions.

Our work is really meant to mitigate the legal risk that a health coaching or national health coaching business might face.  If regulators see unlicensed practice, the penalties can be serious, including criminal penalties.

If you’re interested in an early read, you would probably benefit from having a Legal Strategy Session with a member of our Legal Team.

Thanks for watching. We know this area really, really well and we see a lot of variations. Here’s to the success of your healthcare venture, we look forward to speaking with you soon.