Jun 22, 2018
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Are you a Physician or a Health Coach? Lawyer Up!

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Chinese MedicineJared, a naturopathic physician in a state that licenses naturopathic physician, got all the patients that burned out on conventional care.

Somehow Jared had the clinical magic.  Maybe it was his knowledge of botanicals or homeopathic remedies; maybe it was his deep understanding of how “nature cures;” maybe it was his evidence-based naturopathic medical approach, which took into account a wider literature than those recognized by his MD colleagues; or perhaps he had more patience than most doctors, or a special genius, or perhaps it was his “good energy.”

Whatever the magic, Jared was spending more and more time with a spiritual healer who was his teacher, and he was finding that he was able to work more and more energetically and less physically with his patients.  In other words, he found that once he addressed the energetic and mindset challenges of his patients, things began to resolve on the physical level.

Jared’s abilities spread far beyond his state.  Soon, he was doing “health coaching” calls with patients from many other states.

Jared called our healthcare lawyers, wondering what the limits were of what he could do with telemedicine or telehealth, as a naturopathic physician licensed in only one state – especially given the uneven patch of licensure across states.  Jared also wondered about the legal definitions of practicing naturopathic “medicine” versus, say, “health coaching.”  As well, Jared was doing a lot of wellness seminars, both in person and online, and wondering where all this would fall legally in the big world of telehealth and healthcare licensure.

Jared had had another lawyer draft a bunch of disclaimers for him and he was getting assurances that these would “hold up in court.”  He wondered whether the advice he had gotten was legitimate, and what else he could do for “CYA.”

Jared always surrounded himself with white light whenever he did his health coaching practice; but that didn’t stop him from consulting with a lawyer knowledgeable about telemedicine and healthcare law.

HEALTH COACHING AND TELEMEDICINE

Are you wanting to move your medical practice or other clinical healthcare practice into more of an coaching service? Worried about telemedicine laws and unlicensed practice rules? Wanting to […]

What’s in a Disclaimer? Is it Primary Care or Not Primary Care

Jared, our naturopathic physician, sometimes did primary care and sometimes gave specialized advice.  He was agnostic about what he wanted to do next, leaning slightly in the direction of giving up primary care.

A threshold question for Jared was whether personally and professionally, he wanted to continue in the role of a primary care naturopathic physician.  Jared could disclaim the practice of primary care, and focus on providing specialized clinical care, with appropriate caveats to the patient that the patient should be seeing a primary care physician (MD or ND) for primary care.  This kind of strategy would provide clear communication to patients (and to any Boards or regulatory investigators) as to exactly what kind of responsibility Jared would be contractually undertaking with his patients.

Although no one has a crystal ball with regard to regulatory enforcement, a well-crafted disclaimer would provide a very clear roadmap as to the legal lines of Jared’s work with patients.

Two Practices or One?

Jared’s previous legal counsel had told him that essentially he had two practices: one, a naturopathic medical practice (which could be generalized to the conventional medical practice of an MD as opposed to an ND); and the other, a practice along the lines of Jared’s more spiritual interests.

The lawyer carved out two states of being for Jared: One, a healthcare licensee (say MD, ND, NP, RN, PA, whatever the license); and Two, an energy healer in the legal umbrella of a health coach.

This kind of split was making Jared crazy.  He had two different forms and two professional identities that bled into three.   Some days with some patients he was a healthcare licensee; some days he was an energy healer; some days he was a health coach; some days he was a speaker; some days he was both a primary care doctor and a spiritual healer and then also a coach on top of that.  This was very confusing.

Then he had all these different forms, differentiated by the many permutations.

How could legal advice make Jared’s professional life more manageable?

And what about the telehealth aspects of his practice and his health coaching role?

PHYSICIAN HEALTH COACHING RAISES TELEMEDICINE ISSUES

Physician health coaching raises telemedicine issues, as it’s challenging (but not impossible) for medical doctors (like any professional) to remove the professional hat.  Below.

To Manage Legal Risk, Look at many Factors

For some clients, an aggressive legal strategy can be to create an informed consent form for the state(s) in which the physician (MD or ND) is licensed, and then another form that tries to position the licensed healthcare professional as a “health coach” or in some role other than as the professional licensee.

That legal strategy has to be managed carefully.  It isn’t a one-size-fits-all.

For example, some of the factors that are relevant, and that require in-depth legal review, include:

  • What is the license of the healthcare professional in question? (ND, MD, RN, NP, PA, DC, LAc, etc.)?
  • How does the law in the healthcare professionals’ home state define his or her professional practice?
  • How do the laws in other states, where he or she is not licensed, define their professional practice?
  • What, specifically, does the healthcare professional want to offer under the rubric of health coaching? How aggressive are the modalities?  How close are they to approaches that could be considered within the scope of a licensed profession?
  • Is the healthcare profession targeting a handful of states, or all states (i.e., marketing online anywhere and everywhere)?
  • What are the risks of getting it wrong?
  • What is the client’s risk tolerance?
  • Is the client expanding a personal practice, or launching a corporate enterprise with other players?
  • What are the expected revenues and what is the expected value of the enterprise, if it succeeds?

We all call the health coaching strategy, “these droids are not the ones you’re looking for.”  It’s a Jedi mind trick meant to waive away the Imperial stormtroopers.

This is not a guarantee.  There’s no law on the books that tells you, “if only you do it this way, you’ll stay out of legal trouble.”  That’s one of the great myths that many of our clients present to us: if only X then they’ve resolved all questions of legal risk.

Another way they put this is in this kind of formula:

“So long as …. [this or that is true], I’ll be legally ok, right?”

Sometimes the formula is question; sometimes it’s something they insist on as true.

The Jedi mind trick doesn’t work on your legal counsel; but if your legal counsel is savvy, they can play a Jedi mind trick on the Empire.

One Document, One Agreement with Patients

The Jedi mind trick strategy wasn’t the right one for Jared, though.  When our healthcare legal team put all the factors together, they went in another direction.

Jared was putting all his different skills in a blender (or, let’s keep the scientific metaphor: a centrifuge), and then recombining them in a goulash sort of way.  The documents he presented to us simply didn’t make sense.  They were confusing to the reader – and reader can mean a patient who goes on to sue because of misunderstanding and missed expectations; or, an undercover investigator who is on the lookout for wrongs the doctor is committing and grounds for physician discipline.

From our perspective as Jared’s healthcare lawyers, Jared was still practicing naturopathic medicine.  He wasn’t so far out on the energy medicine spectrum and so far away from naturopathic medicine that we could say he was doing radically different practices.  He wasn’t split between licensed naturopathic doctor and shaman.  Rather, he was beautifully integrating his multiple interests in a way that could be better documented and shaped so as to mitigate the risk of regulatory enforcement.

Ultimately, we decided that Jared would be better off with one consent form, with checkboxes to indicate whether he was doing primary care, disclaiming primary care yet still covering conventional bases, or working purely in an energetic mode.

As to his telehealth practice, Jared, because of his own legal risk profile, decided that he would first concentrate on continuing to grow and build his in-state practice.  He wasn’t ready to leave the umbrella of his licensure as an ND and float himself as a non-licensed healer in other states.

In addition, because of what Jared was doing, we decided that if ever subject to Board investigation, licensing and enforcement authorities would likely see everything as part of his naturopathic medical practice.

Based on this view, we called out some statements in the consent forms Jared’s previous healthcare attorney had drafted that seemed to flag that Jared was engaging in therapeutic modalities that could be considered outliers.  We did some redrafting to create the impression of a more integrated, evidence-based practice.

With this targeted legal advice, Jared was able to revise his website so as to give himself one, coherent professional identity and reduce his risk of liability and/or Board discipline.  Another change Jared implemented was removing much of the language on his website which, while articulating some of the philosophy on his spiritual side, was actually confusing to potential patients and presenting red flags to potential Board investigators.

Conclusion

Whether you’re an MD, ND, NP, RN, PA, DC, LAc, or other licensed healthcare professional, seek legal advice before launching a telehealth practice or marketing your healthcare services beyond the state in which you are licensed.  Telehealth lawyers who understand integrative medicine, functional medicine, anti-aging medicine, and wellness care can best guide you through the complicated legal terrain of an innovative clinical practice.

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The post Are you a Physician or a Health Coach? Lawyer Up! appeared first on Michael H Cohen Law Group | Healthcare Lawyers | Life Sciences | FDA & FTC Law.



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