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.