 |
| Robert Kneshke/Shutterstock |
Medical spas are the latest focus in California's legislature. Tracy Green was quoted extensively in an article in the Sacramento Bee entitled "Bill Aims to Crack Down on Illegal Medical Spas" by journalist Anika Anand.
Why is this such a big issue in California? First, California has some of the strictest laws prohibiting the "corporate practice of medicine" in the United States. In plain English this means that in Californa a business corporation which is not owned by a physician or is not a professional medical corporation (at least 51% owned by a physician) can NOT employ a physician or nurse to provide professional medical services. There are some exceptions for hospitals and HMOs. Some states like Arizona and Nevada do not have these laws and allow non-physicians to own medical practices.
Second, this is about money. Dermatologists, plastic surgeons, and other physicians are seeing business people open "medical spas" offering Botox, Juviderm, laser hair removal and other "medical" treatments at a lower cost because they do not have a physician on site and are undercutting prices and taking their business. The ability to get patients to pay cash (no insurance reimbursement) for these cosmetic and anti-aging medical procedures is a big draw since our aging population is willing to pay for these procedures.
Third, people opening medical spas do not hire attorneys at the outset -- even for a couple of hours -- to make sure they are complying with state laws. There are so many medical businesses that do not comply with the laws that they fail to realize they are violating state laws and are committing felonies. Failure to understand the laws is not a defense to the unlicensed practice of medicine charge.
Fourth, this crackdown follows Medical Board hearings regarding the level of supervision of nurses who perform cosmetic procedures such as Botox injections and laser hair removal. There was a push for higher level of supervision for these procedures but that could adversely affect nurses' ability to perform procedures in hospitals and clinics that are not cosmetic related. The increased enforcement seems to be a result of those hearings.
Finally, the Medical Board seems to be using these criminal cases in order to deter others and send a message out to the medical community. If an individual hires a physician to be a medical director and a nurse to perform Botox or laser hair removal - it is a felony or misdemeanor of practicing medicine without a license. It is a Business and Profession Code violation and under the current laws no one need prove intent to defraud or criminal intent. The physician can be charged with aiding and abetting the unlicensed practice of medicine as well. This means it is easy for the government to shut down illegally structured medical spas, execute search warrants and charge the individuals involved.
How many medical spas are in California? We do not know. Medical spas are not required to register with any official government agency, so there is no way to obtain an exact count. The legislature's concern is that a significant number of the "medical spas" are operating without proper medical supervision. California is currently proposing to strengthen its laws governing medical spas and in the meantime the Medical Board is initiating criminal investigations and cases against medical spas that are not legally compliant.
In my opinion, this crackdown and proposed legislation is unnecessarily detrimental. The maximum fine would be increased from $1,200 to $50,000 and the jail time would also be increased substantially. This would unfairly target those unfamiliar with the existing operating guidelines. There are more effective ways to ensure compliance with business regulations than criminalizing the conduct. While I understand the importance of compliance and have worked in my own practice to help various spas achieve fully compliance, this new law would be overly harsh. For physicians and nurses, the criminal charges could adversely affect their licenses.
Extreme criminal charges are heavy-handed unless the case involves repeat offenders or people who have been told that this is the law. Rather than focusing so many resources on intensive investigation and prosecution, the state should be concentrated on making people aware of the proper way to operate these types of businesses.
For further reading on this matter, please refer directly to the Sacramento Bee article where I am quoted. In the meantime, the key word is get compliant as soon as possible and seek legal advice BEFORE you open your medical spa business. If you have already opened a medical spa or aesthetic medical practice, get compliant ASAP.
Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced health care attorney and medical spa attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
