Chicago-based attorney Alex Thiersch says he and his colleagues have seen an uptick in the number of complaints to medical and nursing boards. As a consequence, he says, there has been an increase in practice investigations.
Thiersch, a partner at ByrdAdatto and director of the American Med Spa Association, presented “Top 5 reasons your practice could likely be investigated,” at the 2017 Vegas Cosmetic Surgery and Aesthetic Dermatology meeting, in Las Vegas.
The top five are medical director contracts; the unauthorized practice of medicine; improper corporate structure or ownership; fee-splitting; and anti-kickbacks.
The increase in investigations in large part impacts surgeons and cosmetic dermatologists, who serve as medical directors to medical spas outside of their own practices, he says.
“There are many entrepreneurs looking to cash in on the aesthetic-medical market, and they often look to partner with doctors to build their brand,” according to Thiersch.
The strategy is perfectly legal, if done properly. But some business owners will run afoul of regulations—unwittingly, through ignorance of the law, or intentionally, in order to cut corners, according to Thiersch.
Regardless of whether the surgeon knows that the law is being violated, his or her license is on the line, given that the doctor is ultimately in charge of medical treatment. Physicians can avoid the problem by carefully selecting their business partners and having a qualified lawyer look at the deal, according to Thiersch.
The most specific violation and, by far, the most serious occurs when registered nurses (RNs) perform medical treatments on new patients without the doctor seeing the patient first, he says.
“In other words, if a new patient … makes an appointment, is seen by the RN, and then [is] treated by the RN without ever seeing the doctor, the RN has just engaged in the unauthorized practice of medicine,” Thiersch says. “More importantly, the surgeon has just engaged in ‘aiding and abetting’ the unauthorized practice of medicine."
The charge not only puts the doctor’s license on the line, but it’s also a criminal violation in most states.
“Protocols need to be put in place to avoid this, and the staff must be educated — RNs in particular,” he says.
According to Thiersch, other violations include:
Improper ownership. Depending on the state, only doctors are allowed to own medical practices, which means that they cannot enter into a “medical director” contract with an entrepreneur, under which the entrepreneur collects medical revenue. That’s a violation of the corporate practice of medicine.
Fee-splitting. Depending on the state, paying RNs, advanced practice nurses (APNs) or physician assistants (PAs) commissions for botulinum toxin injections and fillers is a violation of fee-splitting laws.
Anti-kickback violations. Paying for referrals is universally considered a no-no, he says.
“The best practice is to get an attorney on board who knows aesthetics. All of these issues can be easily avoided with some basic planning,” Thiersch says.