California Medical Board lowers supervision threshold for medspa and cosmetics affiliated physicians

California law now lowers the threshold of supervision of nurses and other appropriate licensed healthcare practitioners in medical spas.In recent rule-making the Medical Board of California adopted new Section 1364.50 into title 16 of the California Code of Regulations (CCR). The purpose is to implement California Business & Professions Code section 2023.5(c), which requires the medical board to adopt a regulation regarding the “appropriate level of physician availability needed within clinics or other settings using laser or intense pulse light devices for elective cosmetic procedures.”

The regulation clarifies “immediately available.” And Article 10 is entitled, Physician Availability.

The regulation reads:

“Whenever an elective cosmetic procedure involving the use of a laser or intense pulse light device is performed by a licensed health care provider acting within the scope of his or her license, a physician with relevant training and expertise shall be immediately available to the provider. For purposes of this section, ‘immediately available’ means contactable by electronic or telephonic means without delay, interruptible, and able to furnish appropriate assistance and direction throughout the performance of the procedure and to inform the patient of provisions for post procedural care. Such provisions shall be contained in the licensed health care provider’s standardized procedures or protocols.”

Although this provision gives leeway for the arrangement between the medical spa or other practice or facility and the physician, it still does not make everything necessarily legal.

For example, the medical spa, at least in California, cannot “hire” an doctor (medical doctor, osteopathic physician, or naturopathic physician) or otherwise violate corporate practice of medicine provisions. Unlicensed medical practice is still a crime. The medspa cannot ‘rent a license.’ The physician must be contactable without delay, and abide by the other provisions listed above. These provisions must be placed in the standardized protocols.

The Board of Cosmetology may still require a license for esthetic procedures.

The physician must control the medical space. Any management company cannot interfere with medical judgment. Nurses must practice under appropriate standardized protocols. The MD or NP must conduct a preliminary good faith exam.

Anti-kickback, Stark / self-referral, and fee-splitting issues may still pose dangers.

And so on.

Many medical spa owners are grossly out of compliance, and therefore, at legal peril.

Contact an experienced healthcare attorney for legal counsel if you own a medical spa or are a physician contracting for services designated for medical spa patients and client. Our medical spa legal team at the Cohen Healthcare Law Group provides legal counsel to cosmetics and aesthetic medical practices, medical spas, and physicians, nurses, massage therapists, estheticians, and other health care providers contracting with medical spas. Contact our medical spa lawyers today.

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