California Medical Board: Use Of Mid-Level Providers for Lasers, IPLs, Botox, & Other Treatments

The State Medical Board of California has addressed the Use Of Mid-Level Providers for Lasers, IPLs, Botox, & Other Treatments. (Links to PDF) It's a common question that is often brought up over in the discussion areas.

You should read this information carefully. Although it's specific to California, the information is substantially similar to many states.
Read also: Medical Spa Legal: How to...  l  Medspa Legal Discussion Area  l  Building a Medispa inside your practice  l  Medical Spa Franchises

From the Medical Board of California:

Due to an influx of calls to the board regarding who may perform what type of medical / cosmetic procedure and where, the following frequently asked questions and responses are provided for informational purposes and as a reminder. This is a reprint and update to an article published in the October 2002 Action Report.

Who may use Lasers or Intense Pulsed Light devices to remove hair, spider veins, and tatoos?

Physicians may use Lasers or Intense Pulsed Light devices. In addition, Physician Assistants and Registered Nurses (not Licensed Vocational Nurses) may perform these treatments under a physician's supervision. Unlicensed Medical Assistants, Licensed Vocational Nurses, Cosmetologists, Electrologists, or Estheticians may not legally perform these treatments under any circumstance, nor may Registered Nurses or Physician Assistants perform them independently, without supervision.

Who may inject Botox?

Physicians may inject Botox, or they may direct Registered Nurses, Licensed Vocational Nurses, or Physicians Assistants to perform the injection under their supervision. No unlicensed persons, such as Medical Assistants, may inject Botox.

I've been approached by a nurse to be her 'sponsoring physician' for her laser and Botox practice; would that be legal?

No. There is no such thing as a 'sponsoring physician'. Nurses may not, under California law, employ or contract with a physician for supervision. A  nurse may not have a private practice with no actual supervision. While the laws governing nursing recognize "the existence of overlapping functions between physicians and registered nurses" and permit "additional sharing of functions within organized health care systems that provide for collaboration between physicians and registered nurses" (Business and Professions Code section 2725), nurses may only perform medical functions under "standardized procedures." The board does not believe this allows a nurse to have a private medical cosmetic practice without physician supervision.

I've been asked by a layperson to serve as a "Medical Director" for a "medi-spa" that provides laser and other cosmetic medical services; would that be legal?

No. No one who cannot legally practice medicine can offer or provide medical services (Business and Professions Code section 2052). A physician contracting with or acting as an employee of a lay-owned business would be aiding and abetting the unlicensed practice of medicine (Business and Professions Code sections 2264, 2286, and 2400). To offer or provide these services, the business must be a physician-owned medical practice or a professional medical corporation with a physician being the majority shareholder.

I see these ads for "Botox Parties" and think that it has to be illegal. Is it?

The law does not restrict where Botox treatments may be performed, as long as they are performed by a physician or by a registered nurse, licensed vocational nurse, or physicians assistant under a physician's supervision.

Who may perform microdermabrasion?

It depends. If it's a cosmetic treatment, that is to say it only affects the outermost layer of the skin or the stratum corneum, then a licensed cosmetician or esthetician may perform the treatment. If it's a medical treatment, that is to say it penetrates to deeper levels of the epidermis, then it must be performed by a physician, or by a registered nurse or physicians assistant under supervision. Treatments to remove scarring, blemishes, or wrinkles would be considered a medical treatment. Unlicensed personnel, including medical assistants, may not perform any type of microdermabrasion.

I would like to provide non-medical dermabrasion, and hire an esthetician to perform that and also cosmetic facial and skin treatments. What do I need to do?

It is legal for physicians to hire licensed cosmetologists or estheticians to perform cosmetology services, if they have obtained a facility permit from the Bureau of Barbering & Cosmetoloty. All licensed cosmetologists, including estheticians, must perform their services in a facility with a permit.

Why can't I use a medical assistant instead of a nurse?

Medical assistants are not licensed professionals. While doctors have become accustomed to their assistance in medical office practices, medical assistants are not required to have any degree, nor do they have to pass an examination or be licensed. For that reason, the law only allows them to perform technical supportive services as described in sections 2069-2071 of the Business and Professions Code, and Title 16, California Code of Regulations, sections 1366-1366.4.

What is the penalty if I get caught using or helping an unlicensed person to perform medical treatments?

The law provides a number of sanctions, ranging from license discipline to criminal prosecution, for aiding and abetting the unlicensed practice of medicine. Physicians could be charged with aiding and abetting unlicensed practice, and the employee could be charged with the unlicensed practice of medicine. 

I understand that all of these practices may be illegal, but I see advertisements all the time for these kinds of illegal practices. What should I do?

You may file a complaint with the Medical Board. To do so, please send the advertisement, the publication name and date, and your address and telephone number where you may be reached,  to our Central Complaint Unit at 1426 Howe Avenue, Suite 54, Sacramento, CA 95825. The board will contact the business, inform them of the law, and direct them to cease any illegal practice. If it is simply the advertisement that is misleading, they will be directed to change or clarify the ad.

It is impossible to cover all of the relevant legal issues in a short article, and these questions and answers are not a substitute for professional legal advice. Physicians may want to consult with their attorneys of malpractice carriers about the use of their office personnel. In addition, the board has a number of written materials with more thorough information on this subject. There are legal opinions on the use of lasers and dermabrasion, materials outlining the legal limitations on use of medical assistants, as well as the actual statutes and regulations. To request any of these documents, please contact the Medical Board of California, 1426 Howe Ave., Suite 92, Sacramento, CA 95825, or call (916) 263-2389.

Are you a medical spa, medspa, medispa, laser clinic, skin center... or other?

An advanced aesthetic medspa laser clinic and skin center by any other name?

Which fork in the road to choose? Medical spa or medspa was the earliest incarnation of the market. Medispa was another but I've heard Dr. Katz  of Juva Laser Center & Medispa twice say that he's registered that word. Laser clinics and centers, aesthetic medical clinics, there are lots to choose from.

What to call your clinic? Anyone have some thoughts?

Laser Clinic? Med Spa? Listen and Sell.

Before you laser clinic or med spa staff is selling Thermage, Fraxel or Botox... they'll need to listen.

From the Church of the Customer Blog reports a new study that found customers who feel ‘listened to’ are more likely to buy, and far more likely to recommend you to a friend. Ok sure, hardly a revelation, but the strength of the response was considerable. From their site:

Communispace surveyed 2,196 members of their clients communities -- twenty communities representing fifteen companies. They found that:

• 82% of community members said they were more likely to recommend the company's products than before joining the community
• 54% said they were more inclined to purchase products from the company since joining the community

Top 10 lies of medspa technology salespeople.

These are the lies of salespeople from IPL, laser, and technology companies.

1. "We're committed to helping you grow your business."  This means that the salesperson has attended sales training and memorized a list of popular sales pitches. The information and 'sales growth' kits available from the tech companies are really pitches for building their name recognition. Sales people get paid for selling. Once your sold, you're in.

 2. “This is how (name of competitor medical spa) did it, and it worked.” If a tech salesperson is telling you about your competitors, they're telling your competitors about you too. The only contact sales staffs have are sales related. The information passed around is just what someone told them was the case.

3. “We'll take care of training your staff.” Lasers and IPLs almost always come with training packages. The sales rep will come in and give you a day or so of time. The rest will be up to you so you'd better attend as well since you'll be doing the training from now on.

4. “This is an easy business decision.” This is not an easy business. One of my buddies is one of the largest buyer and seller of used aesthetic equipment. He buys it from docs going out of business and sells it to docs going into business. (The salient part is docs going out of business.) This is a 'retail' medical business, not an easy one.

5. “This is how much this IPL/Laser/whatever costs.” The retail cost of lasers and IPL's is far above the street cost. Check out these listings on Ebay. A Cutera Xeo with a list price of $127,000 has a street value of around $70,000. Unless you need support or this is your first device, you will want to investigate used equipment.

Add your top lies of tech salespeople in the comments and I'll add them to this list. 

Complexity Causes 50% Of All Returns

If your med spa or laser clinc is built around so many options that your brochure looks like the Sears catalogue, you may want to read this article: Complexity causes 50% of product returns, which goes on to say:

Half of all malfunctioning products returned to stores by consumers are in full working order, but customers can't figure out how to operate the devices. Product complaints and returns are often caused by poor design, but companies frequently dismiss them as "nuisance calls.

The average consumer in the United States will struggle for 20 minutes to get a device working, before giving up.

Most of the flaws found their origin in the first phase of the design process.

This last one might be viewed as the most important. During the design of a system program or product, most of the problems with interface or use that are going to crop up are built into the system. Make any system you build adhere to a single, simple rule: Be able to explain the entire offer/system/pricing in one short sentence.

Medical Spas: The Scarcity Shortage

Seth Gordons has been writing about The Scarcity Shortage in Fast Company. Scarcity is affecting medical spas in the same way that it does with every market. From the article:

"Scarcity, after all, is the cornerstone of our economy. The only way to make a profit is by trading in something that's scarce. This is why the music and movie industries are so terrified by the millions of people who download entertainment from the Internet every day. Downloading threatens to make supply virtually unlimited, and that could make their offerings about as valuable as those of some kids down my street who recently tried to run a stand selling freshly made mud.

The same thing is true for doctors, Web sites, T-shirt shops, sushi restaurants, thumbtack manufacturers, and brands of blank CD-ROM disks. There are 100 major brands of bottled water. Someone opened a fancy ice-cream parlor in Manhattan, and then there were six.

Medical Spas are right in the nexus of this change to cosmetic medicine.Where skilled dermatologists and plastic surgeons were the rule, medical technologies like IPL, lasers, Restylane, Thermage, Fraxel etc, provide scalable solutions that no longer rely on the 'scarcity' of physician knowledge. These technology solutions will put huge pressure on medical pricing in the future and it will only be those businesses/physicians who are able to distinguish themselves through brand that will survive. 

While the medical community has long been insulated from effects that other markets constantly deal with, that's no longer the case. Medical Spas will make most cosmetic medicine a commodity, no longer dependant entirely upon the skill of an individual physician but now offered as an 'almost' completely replicable solution. Medical Spas are changing, those that embrace the new paradigm have a chance, those that ignore it will follow the telegraph and full service gas station.