NOV-DEC 2013

MedEsthetics—business education for medical practitioners—provides the latest noninvasive cosmetic procedures, treatment trends, product and equipment reviews, legal issues and medical aesthetics industry news.

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LEGAL ISSUES relative to the CPoM doctrine. In the 1990s, spa owners began contracting with physicians to deliver aesthetic medical services within the spas. They also began to employ other medical professionals, such as registered nurses, under the license of non-owner physicians. Medical Supervision Agreements became prevalent in the medical spa and spa industries, many of which clearly violate the CPoM doctrine. A non-medical entity cannot directly employ a physician (or other medical professional) and a physician should not be "employed" by a non-medical entity. Many people erroneously believe that there is some exception for aesthetic medicine. They claim that because aesthetic services are provided as a fee for service, independent medical judgment is not affected by profit considerations. The service is provided for a set fee that is known by the patient in advance, and the patient is agreeable to the service and the fee. Others assert that the CPoM doctrine does not apply because so many entities violate the doctrine. I agree that the doctrine is abused on a massive level, but this is no justification for a violation. This argument is analogous to saying that you should not receive a speeding ticket because someone else was driving faster than you and he did not receive a speeding ticket. The proverbial bottom line is that there is no exemption to the CPoM doctrine for aesthetic medicine. Staying Aboveboard We can focus on two considerations in regard to this issue in aesthetic medicine. First, we'll discuss what to do if you are already in an arrangement that may violate the CPoM doctrine. Second, we'll explore possibilities if you want to contract with a non-medical entity and avoid CPoM issues. If you are already in a situation in which there appears to be a non-conforming agreement, you must take action. CPoM compliance enforcement is rapidly escalating. In fact, California is issuing criminal indictments for violations of this doctrine in the aesthetic medicine field. Criminal prosecution is a reality for flagrant violations. It would be prudent to contact the entity that "employs" you and mention that you have a concern about the nature of the relationship. There are ways to continue a relationship with the non-medical entity but you will likely need to change the 24 NOVEMBER/DECEMBER 2013 | MedEsthetics Padraic B. Deighan, JD, PhD, is president of Aston McLaren, a medical and spa consulting firm, and the former president and CEO of DermAmerica, the nation's largest network of dermatology and plastic surgery centers. Contact him at 877.557.9669, © ISTOCKPHOTO.COM Many people erroneously believe that there is some exception for aesthetic medicine. agreements and the nature of the relationship. Don't be swayed by the entity's insistence that its attorney has approved the agreements. The attorney may have approved the relationship based upon his or her duty to the client—the business entity. That doesn't mean you are protected. If a state medical board or regulatory agency takes action or a patient is injured, it is your license that is in jeopardy. It is very important to note that the CPoM doctrine applies to physicians who work part-time or on an independent contractor basis. It does not matter that the physician maintains a traditional office in another location. It is also important to note that physicians cannot employ other medical providers, such as nurses and nurse practitioners, when they are "employed" by a non-medical facility. If you desire to form a relationship with a non-medical entity, such as a spa or medspa, in the future, you can achieve this, but the nature of the relationship will be a bit more complex than just a traditional contract or independent contractor agreement. In this scenario, you will need to negotiate three to five agreements. These may include a business associate agreement, management marketing agreement, business entity agreements and an agreement relating to staff. Such scenarios are not overly complex, but you have to exercise care in forming a relationship with a non-medical facility. CPoM doctrines have been in existence for more than 70 years. For most of this time, the public seemed to understand that only licensed professionals can practice medicine or direct medical care. New business models that appeared as a result of the medical aesthetic field have given rise to a new wave of compliance issues. Attorney generals, state boards of medicine and state legislatures have taken notice of the abuses, and we can expect more regulation in the future.

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