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 be offered by unlicensed persons. This is especially pertinent with the advent of virtual platforms, such as Zoom, which make offering telehealth services across state lines very easy. Many spiritual coaches aim to offer services on a national or even international basis. So, knowing what services one can offer as a spiritual coach is important for legal compliance.
Specifically, spiritual coaches must be mindful of state license and scope of practice laws.
State Scope of Practice Laws
Scope of practice is a concept relating to state licensure. Many spiritual coaches or counselors do not have state licensure. Others may have a license to practice psychology, social work or professional counseling in one state, but not other states. With the growth in virtual practice or telehealth, spiritual counselors may find themselves wanting to expand their services to states in which they do not have a license, or states that do not recognize their practice as a licensed profession.
A legal risk for spiritual counselors or coaches concerns stepping outside of the scope of their license (if they have one), or offering services that creep into a licensed profession (if they do not have that license). In either case, the spiritual coach could be accused of unlicensed practice. Specific to many health and wellness professionals, depending on state law and the circumstances, individuals providing spiritual advice potentially could be subject to state prohibitions against unlicensed practice of various professions, including: medicine, psychology and counseling.
State statues define the practice of “medicine” very broadly, typically in terms that involve diagnosis, prevention, treatment, or operation with respect to diseases or human ailments. The courts often interpret words such as “prevention” and “treatment,” broadly. This means that non-licensed practitioners of the healing arts can easily run afoul of prohibitions against unlicensed medical practice.
Mental health therapy is more likely and apt to help people move from a state of dysfunction to one of being functional.[5]Certainly licensed mental health therapists can also provide coaching-type services, but their training also allows them to help individuals who need to uncover the source of mental health problems and recover from those problems.[6]Coaches who try to diagnose or treat a client’s mental illness may be unlawfully practicing medicine and/or psychotherapy without a license.[7]
Where spiritual counseling or coaching is unique compared to other wellness coaching services is the fact that most states carve out an exception from the licensed practice of mental health therapy and/or medicine for “clergy” or religious or church-based practice. The extent of such exception will depend on each state’s law, but it makes sense that states would exempt religious-based services from state regulation because of First Amendment Free Exercise of Religion concerns. Specifically, the Free Exercise Clause of the First Amendment to the U.S. Constitution bars “governmental regulation of religious beliefs.” However, there are limits to the free exercise of religion. The Free Exercise Clause will give way if a practice runs afoul of a “compelling governmental interest.” See e.g., Prince v. Massachusetts, 321 U.S. 158 (1944), where the Supreme Court held that a state could force children to be vaccinated even if parents objected for religious reasons.
Indeed, the most common cases of state licensure boards and courts getting involved with spiritual care is when a “pastoral counselor” is accused of sexual misconduct between the counselor and client. See e.g., DeBose v. Bear Valley Church of Christ, 890 P.2d 214 (Colo. 1994); Odenthal v. Minn. Conf. of Seventh-Day Adventists, 649 N.W.2d 426 (Minn. 2002); State v. Edouard, 854 N.W.2d 421 (Iowa 2014). It could be argued that in those extreme cases, there is a compelling governmental interest for the state to get involved and protect the public.
This is especially the case when the spiritual coach holds themselves out to be a therapist. For example, under Wisconsin law, any person who is or who holds themselves out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist client relationship, regardless of whether it occurs durn any treatment, consultation, interview or examination is guilty of a Class F felony. Wis. Stat. § 940.22. The term “therapist” includes a member of the clergy who performs or purports to perform psychotherapy.
Aside from engaging in sexual misconduct with clients, which is illegal and unethical, spiritual coaches can also mitigate their risk of state action if they steer clear of providing therapeutic counseling; that is, they should not hold themselves out as a therapist or provide therapy services. The spiritual coach should distinguish between secular therapy and spiritual counseling or services. Take the case of DeBose v. Bear Valley Church of Christ as an example. In that case, the Colorado court stated that courts could not evaluate whether a religious counselor committed malpractice without violating the Constitution. The court stated that “so long as the cleric providing pastoral counseling is not held out as a therapeutic counselor, the standards of care applicable to therapeutic counseling cannot be applied to a pastoral counselor.” DeBose, 890 P.2d at 224.
Thus, to avoid scope of practice and licensure issues, spiritual coaches should offer services that are spiritual or religious in nature, and not therapeutic in nature. Certification from religious organizations can also help the spiritual coach understand their role in helping others achieve wellbeing.
HIPAA Privacy and Security Rules
It is very likely that clients of spiritual coaches or counselors will divulge very personal information. Such information may relate to a mental health or physical health issue. Protecting the privacy and security of that information is one legal consideration.
The privacy and security rules of the Health Insurance Portability and Accountability Act (HIPAA) generally have not caught up to wellness practices such as spiritual coaching or counseling. This is because many spiritual coaches do not bill insurance, calling into question the applicability of HIPAA privacy and security rules to the typical spiritual coaching practice. HIPAA applies only to “covered entities.” There are three types of covered entities:
- Health care providers
- Health plans
- Health care clearinghouses
The most likely covered entity category for CAM providers is “health care provider.” However, for a health care provider to qualify as a HIPAA covered entity, that provider must also conduct HIPAA “standard transactions” electronically. These transactions are typically associated with electronic billing between the provider and health plans, such as electronic claims submission or prior authorization submissions. Most spiritual coaches or counselors do not bill health insurance for their services. Indeed, many may not bill anyone and instead offer it as a charitable service. Thus, it may be that for many spiritual coaches, HIPAA privacy and security rules do not apply to their practices. However, states may have privacy and security rules with which the spiritual coach must comply, so it is important to work with your health coaching/spiritual counseling lawyer to understand your privacy and security obligations. Even if there are no laws specific to spiritual coaching practice, your clients will likely expect privacy and security standards similar to HIPAA. So, spiritual coaches may wish to voluntarily adopt HIPAA privacy and security standards to give their clients more comfort about their use and disclosure of health information.
Conclusion
Spiritual coaching can offer hope and inspiration to clients and improve their overall wellbeing. However, spiritual coaches should be aware of legal boundaries to ensure that they reduce their legal risk as much as possible. The Center for Health and Wellness Law, LLC can be your legal partner in the spiritual coaching arena. Please reach out to us so we can help.
**Best Practice Tip** – Spiritual Coaches should set proper expectations through a thorough, easy-to-read informed consent form before offering coaching services to client. Spiritual Coaches should work with legal counsel to create a form that best serves their practice and mitigates legal risk. Contact the Center for Health and Wellness Law, LLC for help today!