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LEGAL ISSUES behind delegation is that the physician is comfortable enough with the staff member to allow him or her to participate in the delivery of medical care. The rules are not relaxed for aesthetic medicine. INDEPENDENT CONTRACTORS Many medspas and aesthetic practices work with indepen- dent contractors. There are several legal reasons relating to liability and employment law that disallow physicians from delegating procedures to an independent contractor. First, the physician is responsible for his of her employees' actions when they are on the job. Independent contractors, by defi nition, can exercise their own discretion in the delivery of care. In fact, a practice that uses independent contractors cannot govern the manner in which they provide services, according to the Internal Rev- enue Service. Once a physician begins to control the man- ner in which services are performed, or the hours in which they are provided, the independent contractor is considered an employee. And violations can be costly with the business forced to pay back worker's compensation, payroll taxes and social security. In addition, care delivered by a staff member should mirror the care provided by the delegating physician and practice. Accordingly, physicians should not delegate procedures that they themselves do not frequently provide. When a physician purchases a new laser, for example, he needs to learn the use and effi cacy of the device prior to delegating its use to a staff member. The physician must then provide training to the delegated staff member on how to perform the respective treatment so that the patient care is consistent with the physician's methodology. This same rationale would apply to dermal fi llers and neurotoxins. A physician should not expand the practice menu by bringing in new devices and procedures and then delegating them exclusively to staff. PATIENT ASSESSMENT Another key rule of delegation is that a physician must exam- ine each patient prior to delegating care for that patient to a staff member. The physician assesses the patient's aesthetic goals and then decides upon the treatment parameters. Only then can the chosen staff member provide the service as dic- tated by the physician and agreed upon by the patient. There are some exceptions to this, and they vary by state. In some states, aesthetic treatments such as laser hair and tattoo removal are not considered medical treatments. Nonetheless, physicians must remember that since the laser itself is a medical device, the staff member should not be performing the procedure without an initial patient consult by the physician. It is customary for aesthetic physicians to delegate the de- livery of care to other employees within the practice, includ- ing nurse practitioners, physician assistants, registered nurses and estheticians. The basis for delegation is not merely based upon the medical designation or training of the employee. It is primarily based upon the comfort level that a physician has with a particular staff member. In many states, even medical personnel cannot perform medical aesthetic services absent employment by a physician. This concept is widely ignored today in aesthetic medicine, but it is becoming more important as compliance-related issues increase. So it is important to recognize that when- ever medical or non-medical staff are performing aesthetic treatments, it is physician delegation guidelines that enable them to do this, not their respective licenses or certifi cations. It should be noted that esthetician licenses are generally not recognized by the medical community, so whenever a physi- cian delegates to an esthetician, he is doing so based upon his knowledge of the employee's experience and not the employee's license. Insurance coverage is an issue that bears mentioning as well. Please be certain that your professional negligence car- rier is aware of the names and training, license or certifi ca- tions of all personnel who are providing aesthetic medical care. These employees must be included in the practice's insurance policies or there will be a gap in coverage. It is also prudent to have written protocols and proce- dures for all delegated procedures in place. Practices should also offer on-going training for the delegated staff members. If you always keep in mind that a delegated staff member is an extension of yourself and how you treat patients, this will help you steer clear of regulatory and state medical board action. Delegation regulations have been abused, and it is prudent to adhere to more stringent guidelines before they are enacted. Padraic B. Deighan, JD, PhD, is president of Aston McLaren, a medical and spa consulting fi rm, and the former president and CEO of DermAmerica, the nation's largest network of dermatology and plastic surgery centers. Con- tact him at 877.557.9669, medicalandspaconsulting.com. 32 APRIL 2014 | Med Esthetics © ISTOCKPHOTO.COM A physician must fi rst be trained in the use of a new device before delegating treatment to a staff member. L e g a l I s s u e s M E D 4 1 4 . i n d d 3 2 Legal Issues MED414.indd 32 3 / 1 3 / 1 4 9 : 1 8 A M 3/13/14 9:18 AM