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Barbara Zabawa

Latest from The Center for Health and Wellness Law, LLC Blogs

There is growing interest in spiritual wellbeing. According to one article: “The growing interest in spirituality within the practice of medicine may be attributed to the fact that medical studies and research reveal that the religious faith of a patient impacts positively on their recovery from surgery, and is beneficial in reducing ailments related to stress such as high blood pressure and depression.” Given the increased stress felt by employees, particularly in the aftermath of COVID-19, many employers and wellness professionals may seek assistance from spiritual coaches. An important and relevant legal question is whether spiritual coaching can…
One question that frequently arises in my wellness law practice is whether and how employers can tie incentives to Health Savings Account (HSA) contributions. Given that tax season is upon us, and HSA’s are tax-favored accounts, I thought it would be appropriate to offer some background and legal considerations on this topic. The Role of High Deductible Health Plans (HDHPs) Many employers tackle the rising costs of health benefits by offering high deductible health plans (HDHPs). By offering HDHPs, employees can then enroll in an HSA. According to the Bureau of Labor Statistics: HDHPs allow workers to establish Health Savings…
The physician self-referral law, or “Stark Law,” prohibits physicians from referring patients to receive “designated health services” — payable by Medicare or Medicaid — from entities in which the physician holds a direct or indirect financial interest. For instance, a physician cannot refer a patient to an entity that provides magnetic resonance imaging (MRI) scans if the physician has a direct or indirect financial interest in the MRI entity. Why? Because physicians should make referrals based on the patient’s best interest, and the allure of compensation may detract from that goal. Enacted in 1989 and expanded in 1993 with many…
Many new health and wellness coaches and other start-ups wrestle with the decision of whether to create a legal entity.  With the advent of virtual platforms or telehealth technology, starting a wellness coaching or virtual health business is gaining traction. I have had many clients seeking health coaching lawyers ask me should I even bother?  The basis for this question is that when you venture out on your own, you become a “sole proprietor” unless you actively register your business with a State, such as your own state or another state like Delaware.  So, the default legal status of any…
Now that the COVID19 vaccine is rolling out, many employers are wondering whether and how they might incentivize employees to receive the vaccine. As noted in a previous blog post, the Equal Employment Opportunity Commission (EEOC) has issued guidance on mandating the COVID19 vaccine. One would think that if the EEOC has laid a pathway for mandating the vaccine, then merely incentivizing the vaccine should be permissible by default. But employers are wary of making that assumption, and in early February, forty-two of them wrote the EEOC asking for clarification on whether incentivizing the vaccine is permissible. This desire…
It is in an employer’s best interest to have employees be healthy and happy, because such traits lead to more productivity and job satisfaction. But employees are not always healthy or happy. Life happens to employees, and sometimes those life changes are short-lived, and other times those changes can have long-lasting consequences. Enter the employee wellness program. Having worked with many workplace wellness professionals over the years, I can attest that the community sincerely wants all employees to lead better lives and thereby achieve greater wellbeing. But not every employee may be on board with the idea. Some are skeptical…
The Center for Health and Wellness Law, LLC helps a lot of start-ups. The founders of these newly formed businesses often have methods or devices that they have invented, or logos, slogans or business names that are unique. Should they protect those inventions, logos, slogans or names? The short answer is yes. But the long answer requires diving into whether the wellness professional is willing to invest their resources in obtaining such protection. It can be a long, expensive, and grueling process, particularly for patents, and particularly if you go it alone. Here are some examples of intellectual property wellness…
The Center for Health and Wellness Law, LLC has many clients who wish to incorporate functional medicine into their practice. These clients may be physicians, chiropractors, nurses, and even health coaches. What is “functional medicine?” According to the Institute for Functional Medicine: Functional Medicine is a systems biology–based approach that focuses on identifying and addressing the root cause of disease. Each symptom or differential diagnosis may be one of many contributing to an individual’s illness. Thus, wellness professionals who want to incorporate functional medicine principles into their wellness practice will inevitably be diagnosing conditions and looking to address the…
The term “medical spa” generally refers to a facility or business that offers “traditional, complementary, and alternative health practices and treatments in a spa-like setting.”[1] A medical spa may offer a hybrid or combination of medical and cosmetic procedures. Medical spa businesses, though not always identified as “medical spas” specifically, have been around since the 1990s. But the market for medical spa (or medi-spa) services is on the rise. As of 2018, more than 5,000 identified medical spas were operating in the U.S.[2] According to a 2018 report, the global medical spa market is projected to reach $27…
Note:  Recent events involving the EEOC have likely changed the ADA and GINA provisions described here. However, this blog provides good foundational knowledge about the three major laws that impact workplace wellness incentives so that changes in those laws can be understood with some context. Abstract Offering rewards or financial incentives to encourage employee and family member participation in workplace health assessments (HAs) and biometric screens are gaining attention and popularity.  Yet, not all the attention has been good.  On the legal front, the Equal Employment Opportunity Commission (EEOC) questioned the use of these financial incentives through recent lawsuits and…
Complementary and Alternative Medicine (CAM) Providers are an essential part of a vibrant health and wellness system. CAM provider disciplines include chiropractic, acupuncture, functional medicine, integrative medicine, spiritual healing, mindfulness meditation, reiki, ayurvedic medicine, massage, and coaching to name a few. CAM providers typically operate outside traditional health care provider systems, such as hospitals or physician clinics. Often, CAM providers are entrepreneurs who go into business to serve patients or clients because conventional medicine has failed those patients or clients. In my experience as a health lawyer who focuses on serving as the attorney for alternative medicine providers, as well…
On January 7, 2021, the EEOC finally released the proposed language revising the wellness incentive rules under the Americans with Disabilities Act (ADA) and the Genetic Information and Nondiscrimination Act (GINA). This language was what the wellness industry has been waiting for since the EEOC met on the proposed rules on June 11, 2020. Now that we have the language, it is much easier to evaluate the proposed changes to the rules. Recall these changes are occurring as a result of a court order issued in the AARP v. EEOC case. In that case, the judge agreed with the…
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Although the share of people who are willing to get the COVID19 vaccine has increased since Fall 2020, from about 64% in September 2020 to 71% in December 2020, about nine percent of the holdouts say they will only get the vaccine if required for work, school or other activities. See Kaiser Family Foundation (KFF) Covid-19 Vaccine Monitor:  December 2020. The percentages will continue to shift as the COVID19 vaccine rolls out through 2021. But many employers will likely have employees who will refuse the vaccine unless forced to get it. It is unclear whether governments will mandate the…
When it comes to substances that people ingest, get injected or apply on their body, the key question wellness providers must ask is whether that substance qualifies as a “drug” or something else.  If it is something else, such as a nutritional supplement or cosmetic, the burden of FDA regulation is much lighter. To determine whether a substance qualifies as a drug, the wellness provider should ask the following questions: Is my product intended to diagnose, cure, mitigate, treat or prevent disease? Is my product something other than food and intended to affect the structure or any function of the…
Given the increased stress felt by employees, particularly in the aftermath of COVID-19, many employers and wellness professionals may seek assistance from health and wellness coaches who specialize in mindfulness. According to mindful.org, “mindfulness is the basic human ability to be fully present, aware of where we are and what we’re doing, and not overly reactive or overwhelmed by what’s going on around us.”[1] According to the same source, mindfulness is something everyone has the ability to learn with the proper technique.[2] An important and relevant legal question is whether mindfulness can be taught by unlicensed wellness professionals,…
  Contact legal counsel immediately; at times, you will be functioning under specific time frames in which you must act, and report. Responding without assistance from legal counsel may lead to your response revealing too much or too little information. Lawyers with expertise in responding to license complaints can guide you in crafting an optional response that will not lead to further questioning by the government. Failure to no respond at all could lead to other legal actions. Also, not being informed about the law or missing deadlines is not an   Communications from the State Licensing Board may take…