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Monday
Nov062006

Physician Oversight & Scope Of Practice: What's legal in a medical spa?

int-05.jpgPhysician oversight & scope of practice in medspas.


We receive an ever growing number of questions about physician oversight, scope of practice, and other legal issues surrounding medical spas. What oversight is required? What can I do? What can't I do? Here's our opinion (ie. not a legal one.)

The quick growth of medical spas has led to something of a Wild West mentality. Many spa owners and even some physicians are trying to jump into this market. Unfortunately, this has landed a number of medical spas in hot water. Very hot. Medical spa professionals and many physicians don't understand the legal ramifications of what they're doing. What's legal? What's not?

Here's a sample: "Hello, I am an esthetician currently working in a day spa. My boss has decided to buy and train another esthetician and myself on the Thermage system. Since we are a medical spa, there is no practicing physician on the premises. My question to you is; how legal will our Thermage treatments be without an overseeing physician? By performing these treatments, will my license be on the line?"

Short Answer: Performing Thermage under the above circumstances is practicing medicine without a license.

Longer Answer: There are a couple of problems the question alludes to. First, the 'boss' appears to be someone other than a physician. Non-physicians can not purchase medical devices restricted by the FDA to physicians only. Second, if patients would be treated medically without an examination or being seen by a physician that is absolutely illegal. Third, 'no physician on the premises' is a big red flag. Doctors can not extend their licence to Thermage any more than they can extend it to surgery. It doesn't matter that a physician is directing that the treatment be performed or that your boss thinks it's safe. Fourth, Yes, your licence is at risk. Anyone performing medical treatments without adequate oversight is going to be between a rock and a hard place if anything happens. Thermage (and every other medical treatment) have potentially harmful side effects. Don't think for a moment that you, the doctor, or the business are protected by a physicians medical malpractice if a treatment is performed illegally. (Always check with an experienced lawyer.)

Physician Oversight

Physicians are responsible for every treatment performed under their medical license. If it's a medical treatment, the physician is responsible and liable for the performance of that treatment. The state medical board has jurisdiction as to scope of practice and physicians can't extend the scope of their medical license.

Aestheticians and medical spa technicians performing 'medical treatments' are doing so under the license of a doctor. If the doctor can't extend his license to that particular treatment, it's not covered by his licence and is being performed illegally. Anyone, including the physician, involved with treating patients without legal medical supervision is asking for trouble.

Post your question as a comment on this post and we'll add the answers here.

Question: I really appreciated this article. But I'm wondering, what are the issues involving an registered nurse or nurse practicioner, both of which are entering the esthetics industry? Does a spa offering Botox with a np need a doctor on site? What if that np is working in a state in which np's can operate as an individual business? What options does a spa have with nurses as opposed to a doctor or esthetician?   Spalady

Answer: Nurse Practitioners (NP's) and Physicians Assistants (PA's) in some states have the ability to operate outside of the direct supervision of physicians.

Both must have an arrangement with a physician to supervise them and enter into an agreement with their supervising physician that gives access to the doc. PA's are limited in that they can not open up a business by themselves and have to report more directly. (Which is one reason PA's are more attractive to physicians since they can't just open up in competition with you.)

Registered Nurses (RN's) do not have the ability to operate outside of the direct supervision of a physician in the same way as NP's.

It breaks down as this: NP's and PA's may have the ability to provide medical oversight if a physician is not physically on site, RN's do not. You should always, always, always, have your lawyer check with the state since they're the ones who will decide.

Good advice from a lawyer I know is this: write to the state detailing exactly what you are doing. Do not try to sugar coat it at all. Ask for a written reply from the state saying that they have no problem with you. Keep this as documentation if something goes amiss. That way you have a state regulatory body saying that you were performing within the scope of practice. Excellent advice.

Read the comments since there is some elaboration on scope of practice.  

Reader Comments (7)

I really appreciated this article. But I'm wondering, what are the issues involving an registered nurse or nurse practicioner, both of which are entering the esthetics industry? Does a spa offering Botox with a np need a doctor on site? What if that np is working in a state in which np's can operate as an individual business? What options does a spa have with nurses as opposed to a doctor or esthetician?
03.7 | Unregistered Commenterspalady
Hi Spalady,
In most states: NP's can perform on their own. RN's can not.

Your state decides what licensure you'll need in order to provide medical oversight. In most cases it will be legal to use a NP. Check with the state though.
I would think that many doctors would prefer to hire Physicians Assistants in states where Nurse Practitioners can practice independently. Does anyone know if this is actually the case?
04.6 | Unregistered CommenterDermGal
I do not think it really matters. You will be paying to teach them the aesthetics business. I would be 100% sure you have a rock solid non-compete clause in their contract. Either of them can move on and try to take your clients whether it is on their own or with some franchise that has offered them more.

I would also put in the contract that they need to work for you so long or they owe all or part of their educational expenses back to you.
04.6 | Unregistered CommenterLH

Jeff,
There appears to be a running theme in your posts regarding the practice of medicine in regards to PA's/NP's. You have mentioned several times that patients must be seen by a physician, anything less is illegal. Your most recent quote "if patients would be treated medically without an examination by a physician that is absolutely illegal".I am not sure why you continue to repeat this notion. In NC that is absolutely NOT true. PA's can see, treat and discharge patients without the MD seeing those patients. The only exception to this is in the case of new Medicare pts to a practice. The second misquote is regarding who can and cannot be a partner in a practice. Again in NC PA's can be full partners in medical practices as long as they do not hold the primary share. A PA in my area is the 2nd founding partner is a 6 MD practice. He also is the president of the NC Academy of PA's and has filled the PA position on the NC medical board in years past. I feel certain that he is not breaking the law. Most folks would probably benefit the most to consult the state PA boards when considering what PA's can and cannot do. Why not a lawyer? Because most lawyers do not even know what a PA is.
Please be cautious when quoting the scope of practice for PA's so as not to mislead people. It really does boil down to an individual state regulation and what is a regulation in your state may not be true in other states.

07.25 | Unregistered CommenterDC

DC, You're exactly right. What I should have said -- and I might go back and change this -- is that patients must be seen by someone who can provide legal medical oversight. In many if not most states this would be a physician, PA, or NP.

Quite right that you've called me out on this and I'll take pains to try to be more accurate. I've just tried to avoid the tiresome legal speak that comes with trying to include every possible scenario.

Can an NP give good faith exams for a licenced RN for injectables and laser treatments @ a medspa facility?

10.20 | Unregistered CommenterAnonoymous

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