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Telemedicine, Legal Concerns, and Your Functional Medicine Practice

Michael H. Cohen, JD, MBA

Michael H. Cohen, JD, MBA, on Telemedicine Legal Concerns

Sometimes, our clinician clients want to care for their established patients when these patients travel or move to other states. In other cases, clinicians have a specialty for which they are nationally known (for example, helping patients overcome fertility challenges) and want to expand their presence into other states. This is telemedicine (or medical practice at a distance) and is usually conducted via the internet, including email and videoconference, though some states include phone contact.

Which Law Applies for Telemedicine?

During a telemedicine visit with your patient, you will be subject to both the telemedicine laws of your state and of the state where the patient is located (or the “remote” state). It’s important to get telemedicine legal counsel to be sure you don’t run afoul of either state’s laws.

Practicing medicine without a license is a criminal activity under state law. So if you’re not licensed in the remote state, legal challenges can be serious.

Coaching Instead of Telemedicine?

Some physicians want to try to get around these requirements by saying that they are only doing health coaching.

That might possibly work, depending on the factual circumstances, but there are many caveats and dangers. For example, clinicians should be aware that there’s a slippery slope between health coaching and medical advice. Medicine is typically defined under state law as diagnosing and treating. These terms are very broad and usually include giving advice to an individual patient about their condition. Reviewing and interpreting lab tests is a medical activity. Taking a medical history, commenting on medications, and using the language of diagnostic and therapeutic categories are all likely to support the conclusion that this is not simply health coaching but the practice of medicine.

Legally Safe

Understanding legal risk—and legal consequences—is a critical piece of business planning.

No lawyer can ever guarantee that a given approach will or will not withstand enforcement scrutiny. What legal counsel can do is provide important caveats—just as a research scientist might do with respect to the results of a study—and make important risk management recommendations.

Put another way, coaching is a model that can potentially work for some clients; however, a lot depends on the specific situation and on how enforcement authorities will view it if the activity comes under scrutiny. The effort is to create an argument that the telehealth activity is non-medical (i.e., constitutes merely giving information and education online). This requires careful attention to what the clinician is proposing to do.

Conclusion

Although telemedicine is becoming more and more acceptable—and given more room by an onrush of statutes, regulations, and policy statements—many states still have rules that were put in place before or during the early days of the internet. Therefore, it is dangerous to assume that one can just call an activity health coaching. Among other things, it is important to distinguish clinical activities from informational ones. This is a starting point for deciding how to style one’s practice. Some physicians stay in an entirely medical model; others try to move more into a coaching practice; while still others explore whether it is possible to create a hybrid model, depending on the states.

About Michael H. Cohen

You can learn more from Michael H. Cohen, JD, MBA, about legal issues inside the Legal Module of “My Practice Plan,” a 16-week, online business management course specifically designed for Functional Medicine practitioners to build, grow, or reinvent their practices. Students of this course will come away with a personalized business plan based on their desired business model as well as insights into legal matters, including telemedicine, informed consent, HIPAA/privacy, and other laws, and how these laws can affect a Functional Medicine practice.

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