The operation of Medical Spas in California has become a growing and profitable industry. Often physicians who work in different medical specialties such as plastic surgery see operating a medical spa as an opportunity to make additional money while running two practices.
Typical Med Spa services include:
- Botox and collagen injections and dermal fillers (Restylane)
- Chemical peels and microdermabrasion
- CoolSculpting, body contouring and liposuction
- Laser hair removal
- Cosmetic procedures such as facials, eyelash extensions
Physician owners of Med Spas are at risk of medical license violations and investigations as the result of these entities falling under their medical practices. And violations of Medical Board of California regulations and California laws by a physician owner can mean a loss of their medical license, fines, criminal charges and penalties, and possible imprisonment.
Med Spas Regulated as Medical Practices
The laws and regulations that govern the practice of medicine also govern “med spa” procedures. Physicians (and other healthcare professionals) operating a Medical Spa are held accountable to the same standard of care as they are for their routine medical practice. This means standards of informed consent, good-faith exams, delegation to appropriate supervised health care professionals, patient –physician confidentiality, rules about maintaining medical records as well as responsibility and liability of supervision. Medical Spa procedures are considered prescriptive medical devices and “dangerous drugs” (under California Business and Professions Code 4022), and as such are considered medical procedures. These require a trained and licensed healthcare provider to evaluate patient suitability via a “good faith examination,” and proper administration of medications. And the management of a medical spa requires the same oversight (supervision and administration) of medical care as a medical office vis-a-vis licensing rules.
Medical License Violations Associated with Med Spa Operations
All California physicians who are owners and operators of Med Spas should understand the risks to their medical licenses associated with this expansion of their medical practices.
Med Spa Delegation of Duties: Supervision Required
Med Spa physicians must be “knowledgeable and competent in the procedure being delegated” and “capable of performing it” per the Medical Board of California regulations. Physicians do not need to be board certified to perform the cosmetic procedure, but must have “sufficient knowledge and training in the procedures being performed.”
Physicians may inject Botox and cosmetic filler treatments, or they may direct registered nurses, licensed vocational nurses, or physician assistants to perform the injection under their supervision. Microdermabrasion, if “it’s a medical treatment that penetrates to deeper levels of the epidermis,” must be performed by a physician, or by a registered nurse or physician assistant under 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.
Physicians are the only professionals allowed without supervision to use lasers or intense pulse light devices. Physician Assistants and Registered Nurses (not licensed vocational nurses) may perform these treatments under a physician’s supervision. “Supervision” is defined as “to oversee, to direct, to have charge, to inspect, to provide guidance and evaluation.” Physicians must be within a geographical distance that enables them to effectively provide supervision and support when needed or upon request. The physician must be immediately reachable which means “contactable by electronic or telephonic means without delay, interruptible, and able to furnish appropriate assistance and direction throughout the performance of the procedure and to inform the patient of provisions for post procedure care” and able to provide guidance in the event of an emergency or the need for a higher level of care that must be provided by the physician.
Standardized Protocols for Registered Nurses at Med Spas
Registered Nurses in Med Spas must practice under appropriate standardized protocols. Standardized procedures must comply with all the requirements of California Law. The Medical Board of California requires “ensuring the experience, training, and education requirements for the performance of the delegated function”—and documenting these procedures as well as evaluating nurse competence on an ongoing basis.
Corporate Practice of Medicine: Business and Professions code 2400
In California, the corporate practice of medicine is not permitted. Only doctors can own and operate a medical practice, corporation or business. Either the doctor must own the practice or be employed by the medical corporation or business (which is also owned by licensed physicians). A California Medical Spa also cannot “rent a license” (by hiring a doctor whether a medical doctor, osteopathic physician, or naturopathic physician) or otherwise violate corporate practice of medicine provisions. Physicians cannot just serve as a Med Spa Medical Director but must operate the Med Spa under their medical practice and license. And non-physicians such as nurses, cannot have an ownership interest in a medical business.
Control of Medical Space at Med Spas
A Med Spa physician owner must control the medical space. Any management company cannot interfere with medical judgment. If the Med Spa is operated in a setting other than the physician’s office, they need to rent the space at fair market value and have exclusive control of the medical space during the time they are using it. The physician’s name (or that of your professional medical corporation), must show in advertisements about the Med Spa’s treatments.
Good Faith Medical Exams at Med Spas
California Business and Professions Code § 2242 specifies that a physician or designated Nurse Practitioner (if acting under standardized procedures) must conduct a preliminary good faith exam of Med Spa patients before ordering the drug or prescriptive device for them. As of October 11, 2019, the California legislature amended and liberalized Section 2242 via AB 1264, to provide that an appropriate prior examination does not require a synchronous interaction between the patient and the licensee and can be achieved through the use of telehealth, as specified, provided that the licensee complies with the appropriate standard of care. Thus, 2242 now provides:
“Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022 without an appropriate prior examination and a medical indication, constitutes unprofessional conduct. An appropriate prior examination does not require a synchronous interaction between the patient and the licensee and can be achieved through the use of telehealth, including, but not limited to, a self-screening tool or a questionnaire, provided that the licensee complies with the appropriate standard of care.”
Other Violations Associated with Med Spa Operations
Physician owners of Med Spas also face anti-kickback, Stark/self-referral charges, and fee-splitting issues (Business and Professions Code 650) if they share revenues for Med Spa bookings for example with affiliate marketing programs such as Groupon.
If you are a California physician owner of a Med Spa and are under investigation or are facing a hybrid licensing law and criminal law case, call the law offices of Lucy McAllister immediately. The Law Offices of Lucy S. McAllister have successfully represented a wide range of California licensed medical professionals and we are experienced in handling all types of licensing accusations and licensing issues as well as criminal cases. Let us help you protect your professional license, your reputation, and your livelihood.
For additional information or to schedule a consultation on a professional licensing issue, please contact our law offices today at (877) 280-9944.