How to Protect Your Functional Medicine Practice - Legally

Uncategorized Feb 11, 2020

"Is my functional medicine practice legal?"

I hear that question every day from practitioners around the country. As an expert in functional medicine law, I am constantly getting questions that all come down to the same thing: "Am I going to get in trouble for this?"

The best way to ensure that what you are doing is not going to come back to haunt you later is to legally cover your ass-ets. And when I say assets, I don't mean your money or your business. Why not? What else is there? Yes, your money is an asset and if you get sued, there's a good chance you will have to part with some of it. Yes, you've poured (more) money, countless hours, lots of love, and plenty of frustration into your functional medicine practice. But if you lost it, it wouldn't be the end of the world. Why not? Because you would still have your medical license.

Whether that's a license for an MD, DO, DC, RD, RN, NP, or any other license, your license is the most valuable thing you own. More than your car, your boat, and your home. Why? Two reasons: 1) Your license is the thing that helps you earn money, and 2) You cannot replace it if it is taken away.

So how do you cover your license while practicing functional medicine?

At an absolute minimum, your license might be at risk if you do not have these essentials in your practice:

Informed Consent

The absolute most essential thing you can do to protect your practice and your license is to have a solid informed consent plan in place.

Why is it so important?

To protect yourself from malpractice suits. Poor informed consent can be grounds for a medical malpractice lawsuit by the patient or regulatory discipline, even if you were not negligent. The document itself is merely a record of a conversation you should be having with all of your patients before seeing them as a patient. You should discuss the reasons why you are proposing your treatment plan; the risks of, benefits of, and alternatives to that plan; and any outside options the patient has for seeking treatment, instead of seeing you. Then, after the patient has had their questions answered to their satisfaction, you ask them to sign the Informed Consent document. Then you can rest assured you have minimized your risk of malpractice claims and regulatory fines.

Patient Agreement

Who sues their doctor? Someone who is dissatisfied. What drives dissatisfaction? Unspoken expectations. This isn't just true for patients, unspoken or unexpressed expectations are the fuel to almost every disagreement, argument, or painful experience in life.

A clear, well-written patient agreement not only covers all the legal issues that might arise, but--and this is even more important--clearly articulates the rights, duties, and obligations of the patient and the practice so that all expectations are in writing and all parties are in agreement. This is more important than having a rock-solid legal document because it prevents disagreement and dissatisfaction (from unexpressed expectations) in the first place; preventing any lawsuits or complaints against you or your practice.

Notice of Privacy Practices

A notice of privacy practices is so commonplace now that we barely even think about it (or read it, even as a patient). But it is the foundational document for all of HIPAA and state privacy laws.

Privacy is (quite obviously) a big issue in the medical world and you may be subject to large fines and possibly even criminal charges if you fail to protect your patients’ information appropriately. Having a good Notice of Privacy Practices in place can help you comply with HIPAA and state privacy laws, reducing some of your risk.

Medicare Opt-Out Affidavit

If you are a cash-based functional medicine physician, you may want to consider opting-out of Medicare. Why opt out? Well, quite simply, it simplifies your life as a practitioner. What is and isn't covered under Medicare is a shifting target. Add to that the reimbursement rate limits and you can quickly be overrun with lots of administrative time to figure out a bill for a reduced rate. Most functional medicine practice is work with just cannot afford the time or energy to wrestle with Medicare benefits and REALLY cannot afford to accept reduced rates for their services.  To opt out you need to sign an affidavit with specific legal requirements, or it is easy to make a mistake and not opt out properly. A physician who opts-out, enters into private contracts with individual patients, bills the patients directly instead of billing Medicare, and is not subject to the Medicare’s limits on reimbursement rates.


Private Contract

If you do opt-out of Medicare, you need what is called a private contract. Otherwise, you run the risk of getting prosecuted for Medicare fraud, even if you did nothing wrong! Let me explain.

A private contract, in this context, is an agreement between you and your Medicare-eligible patient (in Medicare language they are called a Beneficiary). The agreement states, essentially, that the Beneficiary is aware that you have opted out of Medicare, that they agree to be 100% responsible for payments to you, and that they agree NOT to seek reimbursement from Medicare for your services.

The last part is the kicker. Even if you do everything right and explain all of this to your patient, they could forget. They are human after all. So when they get your bill, they might try to get Medicare to pay for some or all of it. This potentially gets you in hot water because Medicare red flags start to go up and then they come knocking on your door. If you can show them your Private Contract, then you can feel secure in knowing that you are not going to suffer for the mistakes of others.

Just the Start

With these documents in place, you'll be in a pretty good place, legally, and can breathe a deep sigh of relief. But of course, these are just the starting point and don't completely relieve you of all risk.


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