Avoid Medical Spa Compliance Blues with These Legal Tips
In today’s video, we discuss medical spa compliance and legal tips and strategies to help you get over the medspa compliance blues. By the end of today’s video, you’ll learn top enforcement hot buttons and how to mitigate legal and regulatory risk for your medical spa.
I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We’ve advised many medical spas on healthcare compliance legal issues.
Recently, one medical doctor, let’s call him Dr. Bob, called our law firm in a great panic, it was Saturday afternoon. State investigators had just swooped into the tiny medical spa he had founded, and seized all of the equipment they could carry away, including his personal laptop. The investigators warned him he would be facing steep enforcement, including administrative penalties such as loss of licensure.
What had Dr. Bob done wrong?
Well, for one thing, on the door to his medical spa, the white lettering advertised Botox® and other treatments that could only be performed by an MD or a duly supervised healthcare practitioner with the right scope of practice, under properly drafted standardized procedures.
Unfortunately, these treatments were listed, side by side with the non-medical treatments provided by cosmetologists and estheticians, such as facials, and alongside the massage therapy packages.
From the looks of it, to the outside investigator, it appeared that these practitioners—and not a medical doctor—were providing medical therapies.
The mistake here was really one of appearance and impression—form and not substance; illusion and not the reality. The reality, as our healthcare attorneys dug deeper into our conversation with Dr. Bob, is that he held himself out as responsible for all medical therapies; he himself did the good faith exam; and he was the owner of the medical spa, which happened to be organized as a professional medical corporation, where he was the sole shareholder.
Now he had to explain all of this to the state medical board, because of the optics—the cosmetics if you will—the fact that his operation looked like a corporate practice of medicine violation even though it wasn’t.
To quote the great British singer-songwriter, Elton John, “And I guess that’s why they call it the blues.”
Lesson number one: Don’t leave yourself open to investigation and enforcement, by failing to distinguish the medical from the non-medical aspects of your medical spa, in your advertising.
Some states, such as California, place heavy emphasis on preventing corporate practice of medicine violations. Because they target medical spas for compliance violations, a lot of medical spa compliance, and enforcement, depend a lot on the appearance of things.
Second, many physicians believe that they can be involved in a medical spa in a very part-time, hands-off way. In fact, many physicians think they can delegate everything to a nurse and make money from the practice without really paying attention.
This is a big mistake. The state medical board typically regards the customers of a medical spa, who receive aesthetic medical therapies as the patients of the physician. Let me say that again: the people who receive fillers, injections and other medical therapies at a medi-spa are not simply customers, they are patients. That means that all the duties, obligations, and responsibilities of an MD for their patients also apply to the medical spa setting.
Now there are some legal rules that give the MD some latitude. For example, the rules governing supervision of mid-level practitioners are fairly relaxed, in my view, in that they do not necessarily require that the physician be constantly present at the medical spa facility.
That some legal rules are looser and some more restrictive does not mean that the MD is absolved of responsibility though and can be too hands off. Again, if you’re a physician and these are your patients, then you are responsible for what happens to them under your care, or under the care of your mid-levels.
So even if you get all the other compliance aspects of a medical spa correct, you are still vulnerable, as a physician, to standard of care violations if the medical board finds that your supervision was inadequate or that you used the medi-spa as a money-making vehicle without paying enough attention to the patient side of the operation.
What’s the best legal risk management strategy?
First, understand that corporate practice of medicine is an enforcement hot button. Make sure all your advertising and marketing makes clear who is in charge of the medical therapies: the physician, a licensed medical or osteopathic doctor.
Second, make sure the mid-level practitioners are being appropriately supervised, and understand that everyone who walks in the door and receives a medical therapy is considered a patient of the physician.
Third, understand that there’s a difference between therapies that focus on esthetics—E, S, T, H, E, T, I, C, S—and “aesthetic” medicine with an A, E, S, T, H, E, T, I, C. For over a hundred years, the law has given medical doctors special legal status, with the broadest legally authorized scope of practice—and special responsibility. Delegating too much to non-medical professionals, or making it look like the non-medical staff are in charge, can bring enforcement to the heels of the physician side of the medical spa.
Thanks for watching. Here’s to the success of your medical spa or other healthcare venture, we look forward to speaking with you soon.
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