Holistic Healers Academy – Frequently Asked Legal Questions 

Answers prepared by Ralph Fucetola JD

1. Is it illegal or unethical, specifically in NJ, for an unlicensed, non ordained, spiritual counselor to suggest or give advice to a person on issues of drug abuse, sexual abuse or marriage counseling?

All of the following should be read in conjunction with the Disclaimer suggested in Paragraph 5 and the Holistic Healers Academy Private License in which you will receive after completing at least three courses.

The State board of Marriage and Family Therapy covers the areas referenced in this question - http://www.state.nj.us/lps/ca/medical/familytherapy.htm .

The NJ Spiritual Healing exemption reads: NJSA 45:9-21, "the ministration to, or treatment of, the sick or suffering by prayer or spiritual means, whether gratuitously or for compensation, and without the use of any drug material remedy..."

A. Drug Abuse: NJSA 26:2G-21 "drug abuse treatment center" means any establishment, facility or institution, public or private, whether operated for profit or not, which primarily offers, or purports to offer, maintain, or operate facilities for the residential or outpatient diagnosis, care, treatment, or rehabilitation of two or more non-related individuals…"

The key here is "diagnosis, care, treatment or rehabilitation…" If the ministerial counseling specifically excludes the four forbidden acts, you should be acting ethically within the statutory exemption for Spiritual Healing. If you want to be a licensed counselor, "‘Counseling’ means the application of mental health and human development principles…" (Board regulations), but, if you do not apply those "principles," then you do not need a license.

B. Sexual Abuse: The same concerns apply here; the M & F Therapy Board applies, but, only if you use standard counseling techniques.

C. Marriage Counseling: The same Board. Using alternative techniques, if clearly presented as "alternative" and "complementary" to standard techniques should be considered to be outside the scope of the licensed practice.

The disclaimer could be: "The HHP does not provide diagnosis, care, treatment or rehabilitation of individuals, nor does the HHP apply medical, mental health or human development principles, but ministers to the suffering by prayer, spiritual, religious or mental means, without the use of any drug material remedy or physical manipulation."

2. Does question #1 change if that person is ordained as a spiritual counseling minister?

In theory, you do not need to be ordained in order to provide "ministration" but I believe it would be very helpful in establishing your status within the exemption. The exemption does not use the words "ordained minister."

3. What does the law state in regards to hands on healing; touching another for healing purposes, the use of hands in direct physical contact with another, as it applies specifically in NJ and generally in the laws of other states in the US? What about reflexology?

Here is the NJ law:45:9-18. Who regarded as practitioners

Any person shall be regarded as practicing medicine and surgery, within the meaning of this chapter, who shall use the words or letters "Dr." , "doctor" , "professor" , "M. D." , or "M. B." in connection with his name, or any other title intending to imply or designate him as a practitioner of medicine or surgery in any of its branches, and who, in connection with such title or titles, or without the use of such titles, or any of them, holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, or who shall either offer or undertake by any means or methods to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition. The provisions of this chapter shall apply to all persons professing and attempting to cure disease by means of the so-called system of "faithcurism" , "mind-healing" , "laying-on-of-hands" , and other similar systems.

45:9-18.1. Provisions not applicable to practice of healing

This chapter shall not apply nor shall it in any manner be construed to apply to persons practicing healing by spiritual, religious or mental means if no material medicine is prescribed or used and no manipulation or material means are used.

Section 9-18.1 repeats Section 9-21, but adds "manipulation" and "religious or mental," so it both broadens and limits the "practicing" of spiritual healing. "Manipulation" is what licensed Chiropractors and Massage Therapists do. The "laying-on-of-hands" is only forbidden if one is "professing and attempting to cure disease…" Section 18 is limited by Section 18.1. Since "material medicine" and "material means" are forbidden by name, and expressing the one thing excludes the others, "energetic means" are permitted as part of "healing by…" The distinction between "cure" and "heal" is important here.

4. What laws should HHPs, who may also call themselves Natural Healers on their business cards, become aware of when starting up their own consulting practice or health business?

The word "heal" appears in the NJ statutes just twice, both regarding the natural process of healing. The word "cure" appears 70 times, often as part of the phrase, "diagnose, cure, treat…" etc. "treatment" is there 1,444 times (and "medical treatment 67)! Thus, I would recommend using a short disclaimer on the business cards, such as, "Helping Nature Heal - Holistic Healing, not Medical Treatment."

5. In all modalities, it is understood that as an unlicensed health practitioner it is not permitted to diagnose, treat or make claims – Are there any other disclaimers that should be included?

To carefully track the NJ exemption statutes (Section 18.1 and 21) the disclaimer could be:

"The HHP does not provide diagnosis, care, treatment or rehabilitation of individuals, nor does the practitioner apply medical, mental health or human development principles, but ministers to the suffering by prayer, spiritual, religious or mental means, without the use of any drug material remedy or physical manipulation."

Each State has a Medical Practices Act (all very similar, as they were created by the Commissioners on Uniform State Laws) and each has a similar Ministerial Exemption clause.

6. Should an HHP, Energy Healer, Natural Healer, Aromatherapist, etc become ordained? What other ways can HHPs, Energy Healers, Natural Healers, Aromatherapists, etc protect themselves from lawsuits? Will disclaimers offer any protection if given to a client?

A. Disclaimers are necessary but not sufficient! Disclaimers work best when what you are trying to protect is Speech. That is the significance of Thompson v Western States Medical Center, where Justice Sandra Day O’Connor wrote for the majority:

"If the First Amendment means anything, it means that regulating speech must be a last - not first - resort."

"We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information."

"Even if the Government did argue that it had an interest in preventing misleading advertisements, this interest could be satisfied by the far less restrictive alternative of requiring each … a warning that the drug had not undergone FDA testing and that its risks were unknown."

B. I believe it to be always advisable for one to become ordained if one is seeking to rely upon a ministerial exemption.

Asset protection is another issue entirely. I recommend obtaining insurance if possible (if the HHP works from home, a home profession rider may be available under the house insurance policy)  and separating assets – home in a Family Trust, business as a Limited Liability Company or Non-Profit Organization. If something goes wrong the individual practitioner will always get personally sued.

7. In an effort to protect themselves legally, what should a practitioner have to enable them to sell, administer, or suggest a supplement, anything that is not considered a pharmaceutical?

One issue is Nutritional Consulting. A very few States restrict Nutrition to dieticians or other licensed individuals. Ohio for example. Some states "certify" Nutritionists (New York) but do not forbid the uncertified from advising people. Most States (like New Jersey) do not restrict the practice of Nutrition. NJ almost adopted a certification program nearly a decade ago, but then governor Whitman vetoed the bill, saying it would not improve consumer protection. In that bill, the legislature defined Nutrition as:

". . . the integration and application of principles derived from the science of nutrition, biochemistry, physiology, food, food management, and from behavioral and social sciences to achieve and maintain a healthy status. . ."

Thus, if your purpose in advising someone regarding nutrition is to help them achieve and maintain a healthy status, there should be no problem. The key is to make it clear to the client that you are not suggesting supplementation to "treat" disease. This is what the Informed Consent / Private License is all about.

8. What is a charter?

A charter is a document issued by a superior (national organization, founding trustees, etc.) to establish a (usually) non-profit institution, such as a church or educational foundation. It functions similarly to the By-Laws adopted by many non-profit associations.

9. What is a private license?

The original concept of "license" was a right granted by a property owner to allow another to enter upon one’s lands, an act that would otherwise be a trespass. Later, governments starting "licensing" (granting monopoly privileges) various professions. A "private license" is a right granted by one party to another to do what would be a violation of the first party’s rights, but for the private license. It is used as such in real estate law. In Holistic Healing the concept is used as part of the Informed Consent form that should be obtained from each client.

10. Are disclaimers or release forms necessary for a spiritual counselor or advisor, specifically in NJ, who wants to counsel or advise? Would "advise" be a legally and ethically correct term when used in practices regarding holistic healing? What up front information should be provided to the client whether the counseling or advisement is presented in person or through some other form of communication (telephone, fax, e-mail, etc)? Would this protection be consistent at the local level throughout the United States?

Disclaimers and release forms are always a good idea. The Informed Consent form that has been prepared for the HHP combines the ideas of a Private License with Informed Consent and a Release. I must, however, indicate that a Release can only go so far; for example, a Release cannot excuse "malpractice" in advance. The Informed Consent is important under the terms of the Helsinki Declaration on medical experimentation, since much of what the HHP does is research into alternative approaches.

The HHP must advise the client that the HHP is not a Medical Doctor and does not Practice Medicine. The HHP should tell the client what modalities may be recommended and obtain the client’s Informed Consent. Ideally, much of this can be included in the Private License / Informed Consent form.

These issues are similar throughout the U.S.

11. Are disclaimers or release forms necessary, specifically in NJ, in order for a Holistic Health Practitioner, Energy Healer, or Natural Healer to practice? What up front information should be provided to the client prior to a session whether the session is in person or through some other form of communication (telephone, fax, e-mail, etc)? Would this protection be consistent at the local level throughout the United States?

Based on the most recent Federal cases, such approaches are very much necessary. See comments to Question #10.

12. In regards to questions 10 and 11, what should a person do in order to protect themselves if they wish to advertise as a spiritual advisor, counselor, energy worker, aromatherapist, reflexologist, etc? Is it legal to advertise on a billboard, via the internet, newspaper advertisement, at a local public establishment, through the distribution of business cards, etc. without registering with the town in which they will practice? Is registration only a concern for those looking into trade names for a business?

Advertising must be, according to the FTC, "truthful and not misleading…" Any claims made must be substantiated.

As an FTC Commissioner stated in 1996, "The substantiation requirement exists because every time an advertiser makes an objective claim, the advertiser also implies that there is a reasonable basis for the claim. This reasonable basis is substantiation. What constitutes a reasonable basis for a particular claim can vary, depending upon the nature of the claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation for the claim, and the amount of substantiation that experts in the field believe is reasonable. Health and safety claims generally require competent and reliable scientific evidence. And if a marketer makes a representation that a claim has a particular level of support -- for example, "clinical studies prove..." – the law requires at least that level of substantiation."

It is always advisable to include even a brief Disclaimer in any ad or even business card, such as: "Helping Nature Heal - Holistic Healing, not Medical Treatment." Longer ads can have a more complete Disclaimer (see Question #5).

The form of the advertisement does not matter, nor does internet advertising have any additional substantiation requirements, but if you intend to maintain a web site, a proper Site Use / Privacy / Disclaimer Statement is needed on the site.

As to local registration, that is usually advisable if you are seeing clients in your home. You need to make sure you are not violating local zoning laws and you may need a local business license.

13. What terms would be considered inappropriate, unethical, or potentially illegal to use as an HHP? What terms would be considered morally, ethically and legally acceptable?

The Forbidden Words are: Diagnose, Treat, Cure, Mitigate & Prevent. Also, do not use the word "Patient" to describe the HHP’s clients.

I believe using the word Heal, to describe the natural results of the body’s own capacities, is allowed -- you cannot claim to Heal, only to support the body’s ability to Heal.

OK words are: Stimulate , Support, Regulate, Maintain and (usually) Promote.

The First Rule of Holistic Healing is: Do No Harm.

1. Do No Harm.

2. Work with Informed Consent.

3. Work on the Whole Person.

4. Work on your Self.

5. Breathe Deep!

6. Honor Your Lineage.

The HHP needs to distinguish between Treatment of Disease (limited by law to licensed physicians) and Complementary Practices; between claims to "cure" and Holistic Healing.

Recently the AMA Code of Ethics has begun to understand the distinction. The original Hippocratic Oath, with its injunction to "Do no harm." has been replaced by a complex Code detailing the relationship between physician and patient and alternative practitioner. The most recent changes, during the early 1990's, were inspired by anti-trust lawsuits brought during the 1980's by chiropractors and others.

While "treatment which has no scientific basis" is condemned (Opinion 3.01), under Opinion 3.04, physicians are free to refer a patient "for therapeutic or diagnostic services to another physician, limited practitioner or any other provider of health care services permitted by law to furnish such services, whenever he or she believes that this may benefit the patient."

Thus, unscientific "treatment" is distinguished from "health care services permitted by law" and "treatment" -- which means the use of standard medicine and surgery to "cure" disease -- is distinguished from other health care services which need only meet the lesser "may benefit" standard. Thus, alternative modalities can be seen to complement licensed medicine, but not be held to its strictures, nor limited in its practice to licensed physicians.

Some On-Line Resources:

www.siteusestatement.com

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www.nonprofitlawyer.org Ralph Fucetola JD

www.stupidbusinessmistakes.com

© 2004 Ralph Fucetola JD