Exercise is Medicine. Supplements are Medicine. Food is Medicine.

At a major industry conference in early March 2024, an IRS official said “Food is not medicine.” An IRS spokesperson also said only in “‘rare’ circumstances can things like food or supplements be considered a medical expense.”

This was not a comment on tax law or change to official IRS policy, but rather an unprecedented opinion from an IRS official on the correct medical interventions Americans should take. To our knowledge, the IRS has not publicly commented on how ”rare” prescriptions of statins, Viagra, antidepressants, or Ozempic should be.

Let us be clear: we have confirmed the agency made this statement because they are seeing more Americans use their HSA and FSA benefits for exercise, food, and supplements. We have heard reports that IRS officials have said they are worried this “benefit” of using HSA/FSA dollars for root cause items will “spread too widely until it can’t be reversed”. 

As the IRS has admitted, these comments are medical opinions and do not change the law that food, exercise and supplements can be eligible HSA/FSA expenses. According to IRS Publication 502 and 2023 IRS guidance, exercise and supplements can qualify for HSA or FSA spending with a Letter of Medical Necessity tying the intervention to the prevention or reversal of a specific condition. Additionally, food interventions can qualify when the food is recommended by a doctor, prevents or reverses a specific condition, and is supplemental to the patient’s normal diet. Again, the IRS has explicitly confirmed that this guidance hasn’t changed. At a recent industry conference, an IRS official explicitly said Truemed’s process follows existing law - but continued giving her opinion that HSA/FSA coverage for food and exercise should be rare. 

Truemed does not challenge or disagree with a single word of the recent IRS press release. Truemed exists to inform Americans of their existing right to choice with HSA/FSA funds. We have built a compliant process to achieve this with counsel from the top digital health lawyers in the country and former IRS officials. If the IRS or any stakeholder has feedback as to how we can make our process better, we will implement it immediately.

If, however, the IRS simply does not believe that food is medicine, they should take that up with Congress to change the law to explicitly forbid doctors from recommending exercise and food interventions to reverse disease. Otherwise, individual IRS officials should stop issuing medical opinions that contradict the current law and muddies their recent guidance.

We stand ready to work with all stakeholders to advance the goals of metabolic health and patient choice. This post responds to the key claims the IRS has made in their recent notice and related statements.

Incorrect Claim 1: The IRS has suggested that drugs are the only appropriate medical interventions to prevent or reverse chronic disease - except in rare cases. This is a tragically wrong medical opinion. 

Over 75% of Americans are obese or overweight, and half of American adults have prediabetes.  88% of the country exhibits signs of metabolic dysfunction, and we are likewise facing a mental health crisis. In all of these cases, food and exercise interventions are often among the best interventions to treat or prevent a disease. 

We started Truemed after our co-founder's mother, Gayle Means, abruptly died of metabolic illness (pancreatic cancer). For years, doctors prescribed her drug after drug for her metabolic issues: statins, metformin, ACE Inhibitors… 

She should have been issued a Letter of Medical Necessity for healthy food and exercise to reverse her metabolic dysfunction and potentially prevent the cancer. 

Against the backdrop of this crisis of public health, an IRS spokesperson said only in “‘rare’ circumstances can things like food or supplements be considered a medical expense.”

This medical pronouncement from the IRS that Americans should use drugs instead of food and exercise to prevent chronic disease was quickly denounced by doctors, and stands in contrast to the efforts of political leaders and other regulators. Dr. Mark Hyman, Founder of the Cleveland Clinic Center for Functional Medicine and 15-time New York Times best-selling author, replied, “The IRS suggesting food is not effective in preventing or treating disease has no scientific basis and contradicts an enormous body of evidence to the contrary.” Bi-partisan lawmakers expressed alarm these statements go against the federal government’s “Food is Medicine” initiative launched last year to reduce chronic disease.

Incorrect Charge 2: Food Isn’t Medicine

The IRS claims that HSA expenses of supplemental food cannot be used for chronic conditions. This is flatly wrong. 

The 1978 Randolph decision is a seminal case when it comes to the eligibility of food as a medical expense. That case held that a taxpayer who became chronically ill from eating foods that were treated with pesticides or herbicides could deduct as a medical expense the difference between the cost of chemically uncontaminated food and regular chemically treated food. [Note: Since 1976, there has been an epidemic of toxic chemicals on our food linked to sickness, including a recent $10B settlement by Bayer-Monsanto around glyphosate exposure and cancer.]

This case has been cited on repeated occasions to endorse expenses above a normal diet if medically prescribed. In a later case, where a doctor prescribed a diet containing twice the protein needed by a normal person and requiring six to eight feedings per day, to mitigate the effects of hypoglycemia, the Tax Court cited both Rev Rul 55-261 and Randolph in ruling that the cost of the extra protein was deductible. [Note: According to the CDC, at least two-thirds of Americans have blood sugar issues.]

Contrary to this long-established precedent, the IRS now suggests that “food is not medicine.” This new claim is not only refuted by the line of cases noted above and the IRS’s own existing guidance, but also flies in the face of the body of modern scientific evidence and, indeed, even other government programs such as numerous state Medicaid programs that are piloting the delivery of health food to federal program beneficiaries on the grounds that food is indeed medicine. It also goes against the recent food as medicine initiative that kicked off at last year’s White House Conference on Food and Nutrition.

Further, the IRS also stated that food and supplements can only count for HSA spending in “rare” cases. This is not a government administrator's opinion to make - it is a medical provider’s determination, and this guidance directly interferes in an individual’s right to choose their health care options. Given the fact that 9 of the 10 leading causes of death are tied to chronic conditions that are tied to nutrient deficiencies, this is negligent advice, and comes from a federal tax regulator without sufficient expertise to be playing doctor.

Incorrect Charge 3: A Letter of Medical Necessity Can’t Be Issued Through an Asynchronous, Digital Process

The IRS has suggested that an asynchronous process is legally insufficient for the generation of an LMN.  This is incorrect as a matter of law and wrong as a matter of policy.  

Asynchronous clinical intake and review processes are used by many companies to prescribe Ozempic, testosterone replacement therapy, Adderall, and other pharmaceutical interventions, and the use of asynchronous surveys for prescription pharmaceuticals is explicitly permitted in 46 states. Once again, the IRS is in no position to determine what constitutes the practice of medicine by licensed healthcare professionals, or opine on valid provider-patient relationships, which subjects are reserved to the authority of the states under the Tenth Amendment.

Moreover, it is shocking that the IRS proposes a system in which consumers can obtain an endless series of pharmaceutical interventions easier than they can obtain an LMN for the most low-risk, cost-effective, and efficacious interventions like exercise, supplements, and nutrition. Implicitly, the IRS is imposing a higher bar for medically necessary food, supplements, and nutrition interventions than for prescription pharmaceuticals that are expensive, addictive, and can have dangerous side effects.

Any requirement for a synchronous visit to approve an LMN would impose a higher burden to use HSA funds for exercise, supplements, and other similar interventions than to obtain (HSA/FSA eligible) pharmaceuticals.  Leaving aside the perverse public policy implications of erecting more roadblocks for lower-risk interventions like exercise than pharmaceuticals, there is nothing in the underlying laws that would require such an approach.