In today’s video, we dive deep into some of the laws governing medical spa and physician supervision of nurses.

Hi, I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients just like you, navigate healthcare and FDA legal issues so you can grow your healthcare business.

Here are some frequently asked questions (FAQs) about medical spa laws.

1. Can a registered nurse be the only clinician on-site and perform medical procedures if the MD is not physically present, yet performed the good faith exam via Zoom or some other onscreen app?

Even if the law does not actually require in your state that a good faith exam be performed in person by the physician, it would mitigate risk for the doctor to be there, in-person for the initial exam, and as well, be present in the office (or very close at hand) when procedures are being performed so the MD can respond immediately if there are any complications.

Of course, medical spas may loosen physician presence for economic reasons if the law so allows. For example, in California, physicians need not be physically present for procedures that use laser or intense pulsed light devices, as long as they are “immediately available,” which means (according to the regulation) reachable onscreen or by phone and able to guide the nurse as specified in standardized procedures or protocols.

Still, if anything goes wrong, the physician’s license may be on the line, as well as the nurses.  Among other things, the law holds physicians to the same standard of care, whether they see the patient in person or use telehealth technology.  Medical boards tend to be sticklers about in-person prior exams particularly where physicians prescribe—meaning, that even if this is allowed by law, medical boards can raise standard of care issues and discipline physicians accordingly. That could be you, depends on your risk tolerance.

2. Can an MSO hire and fire the physician, or partner with an MD?

No (I’ve said in a lot of places, partnership is not a good idea), in California, the corporate practice of medicine is very strong. The doctrine prohibits the MSO from having undue control over such things as the delivery of medical services, and that includes hiring and firing physicians or having supervisory authority over any nurses or physician assistants.

Furthermore, under California law, the physician has to have control over the physical space in which the medical procedures are being performed.  Nurses must practice under appropriate standardized protocols.

3. Can the MSO rent medical spa by the hour?

In general, this would raise anti-kickback issues.  Space is to be rented at fair market value, and the rental cost cannot vary by volume or value of the patients seen within in.  So, renting hourly does raise kickback concerns and as well, suggests that the physician is not in control of the medical space and procedures, thus raising corporate practice of medicine concerns as well.

Thank you for watching. Please contact us with any questions. We have helped hundreds and hundreds of healthcare industry clients build their dream.  We look forward to working with you on the journey toward your success!