Issue link: https://viewer.e-digitaledition.com/i/1464704
SCOPE OF PRACTICE ISSUES Just because the spa ser vices a re being offered within a medica l practice does not mea n the physicia n ca n delegate a ny procedure to a nyone. Medica l spa ser v ices a l l fa l l w it h i n t he scope of practice of a physicia n, NP or PA . With a PA , the super v ising physicia n must be qua lif ied to perform the procedure. A common question is what the scope of practice for a reg istered nurse is. (There is little utilit y in using a n LPN because she would have to be in line- of-sight super vision of a n R N or MD). The genera l rule is that nurses execute patient-specif ic orders. However, the ordering provider must f irst exa mine t h e p a t i e nt — s o - c a l l e d "s t a n d i n g orders" do not qua lif y. Fol low ing a n exa m ination a nd order, t he Nursing Boa rd states the following fa lls within a nurse's scope of practice: + Injections (e.g., Botox, f illers) + Non-ablative lasers + Phototherapy + Superf icia l skin peels Micro-needling a nd PDO threading fa ll outside of a nurse's scope of practice. Aest het icia ns a re l icensed by t he Depa r tment of State, not Education, a nd le ga l ly a r e no d i f fer ent t h a n a medica l a ssista nt. They ca n per form laser ha ir remova l simply because the practice rema ins unreg ulated in New York. Like M A s, they ca nnot per form invasive procedures. They a lso ca nnot hire a licensed professiona l to perform procedures. A common misconception is the idea that an aesthetician can hire a "medica l director," who performs or super v ises t he procedure a nd split s the fee w ith the aestheticia n. That is impermissible in New York. So what does t h is mea n i n practi- ca l t er m s? W h i le New York ha s not explicitly g iven g uida nce in this a rea , ot her states have, a nd have used t he stratum corneum layer of the skin as the defining boundary between medical and nonmedica l procedures. Accordingly, it is both reasonable a nd defensible to use this boundary to delineate the scope of practice for a n aestheticia n in New York, which would permit treatments such as superf icia l chemica l peels but not micro-needling. PROHIBITION AGAINST THE CORPORATE PRACTICE OF MEDICINE AND THE PC/MSO MODEL New York follows the Corporate Practice of Medicine (CPOM) doctrine, which prohibits a layperson or business entity from ow ning or operating a medica l practice. This prohibition a lso includes splitting fees with a medica l practice, which is defined to include any business a rra ngement where compensation is based on a percentage of collections. A c o m m o n b u s i n e s s s e t u p t h a t complies with CPOM is based on the professiona l corporation/management services organization (PC/MSO) model. In the PC/MSO model, the MSO, which may be owned by a layperson such as an aesthetician, provides business services, such as space, support services, admin- istrative services, billing, lay employees, etc. to the PC. The PC hires the licensed professionals and administers the med- ica l services. Consider the following hypothetica l: Aesthetics, LLC wa nts to of fer med- spa ser v ices. It ca nnot simply hire a medica l director and give Botox under its corporate umbrella, so it contracts with John Doe, MD, PC, and PC intends to use a n NP to per form the medica l ser vices. The pa r ties enter a written contract whereby, for a fair market fee, the PC will utilize the space and provide administrative assistance to Aesthetics. This fee w i l l not be ba sed on the PC profits or a percentage of collections. There will be signage and statements on Aesthetics' literature and website that a ll medica l procedures are performed by the PC. N e x t , t h e c l i e n t /p a t i e n t c o m e s to Aesthetics a nd a sks for la ser ha ir remova l (non-medica l), a super ficia l chemica l peel (non-medica l) and Botox (med ica l). Aes t het ics ' a es t het icia n per forms the la ser ha ir remova l a nd chemica l peel. The PC's NP injects the Botox. The tota l bi l l is $2,000, w it h t he B ot ox proc edu re c os t i n g $6 0 0. A e s t het ic s c ol lec t s t he $2 ,0 0 0, P C invoices Aesthetics for the $600 a nd Aesthetics electronica lly transfers the $600 to PC. This is an oversimplification of the arrangement and an individua l wishing to enter such an arrangement should consult counsel because, as the old saying goes, the devil is in the details. This is none tr uer tha n in the highly regulated world of hea lth care. n A more comprehensive version of this article first appeared in the Health Law Journal (2021 Vol. 26, No. 3) published by the New York State Bar Association, One Elk Street, Albany, N Y 12207. To learn more about NYSBA, or to become a member of the Health Law Section, visit NYSBA .ORG today. M D N E W S . C O M /// M D N E W S C E N T R A l N E W Y O R K n 2 0 2 2 2 1