In today’s video, we ask whether an NP (Nurse Practitioner) can order Botox through a Medical Director. Of course, it depends – let’s get deep into it.

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

The client here is a Nurse Practitioner (NP) that orders Botox and fillers from manufacturers, supposedly “under an MD’s license,” and then distributes these substances to other nurses at various medical spas.  The NP tells us she has a license to sell these substances (We’re not sure what kind of license).  There is some agreement that the NP signed with the MD somewhere where the MD serves as “medical director.”  Somehow, these other nurses have the same agreement.  Is this arrangement, workable? Can we just rubber stamp it?

As they say in the New York, “if you see something, say something.”  No matter how you spell it, this arrangement spells “Risk.” Certainly, you can see some flags here, right?

We have another post on this healthcare and FDA law blog, something like, “If someone asks you to be medical director, run.”  Why are “medical directors” so popular (and they are also popular with medical boards)?

Because corporate practice of medicine prohibits non-physicians from practicing “medicine.”  And if people want to make a fast buck and try to get around this old and bothersome CPM prohibition.  They find a doctor (who’s not going to do any work), they call them a “medical director.” They say “Well, I’ll just do stuff under your license.” Well, what do you mean “under”? It’s not like a building.

Now a medical doctor can direct their medical practice.  They might have a large clinical staff.  It could include PAs, RNs, technicians.  But where there’s an overall venture, such as a medical spa, telehealth platform, mobile healthcare app, integrative care and wellness center, something else, the MD really should only be directing their own clinical portion, and then there’s this MSO which does the management and marketing.  and then it’s not really the way it’s supposed to be. Again, going back to this “under the license,” don’t get thrown under the license. You don’t want to be the person who’s license people are doing stuff “under” like buy and sell a bunch of controlled substances or do nothing but eat ice cream all day.  Sure, super-size me.  Not recommended.

There are dependent practitioners, and there’s billing, in a certain way – ancillary practitioners, but unlicensed practice or medicine is a crime.  So, there’s got to be, almost always an MD somewhere, even if it’s with a collaboration agreement where the NP has a lot of practice autonomy.

There are also pharmacy law concerns in the scheme we talked out, and, special rules about who can purchase Rx drugs, like injectables.  And then there are anti-kickback and false claims concerns, depending on the billing.  Some States require certain facilities licenses from the State Department of Health to operate a healthcare facility or clinic.  Sometimes there is an exception if the clinic is owned by a licensee.

But basically as Rodney Dangerfield so aptly put it :“Look out for Number 1! … But don’t step in Number 2.”

Thanks for watching. Please contact us with your questions. We have helped lots of healthcare industry clients just like you successfully build their dream.  We look forward to working with you on your journey to success!