The corporate practice of medicine (CPOM) doctrine in Texas is designed to ensure that medical decisions are made by licensed physicians rather than corporate entities. This doctrine has significant implications for the operation of med spas, which often provide a mix of medical and aesthetic services. Compliance with the CPOM is crucial to avoid legal issues and maintain high standards of patient care. This article outlines how med spa compliance with the corporate practice of medicine in Texas.
Ownership and Structure:
Med spas in Texas must be set up so as not to interfere with the physician’s independent medical judgment. There are several ways to insure this.
Physician-Owned Practices: The med spa is directly owned by one or more physicians who are responsible for all medical decisions and oversight.
Independent Contractor Arrangements: A non-physician owns the spa and contracts with a medical director who has complete responsibility for all medical decisions, procedures, patient safety, and medical oversight.
Management Services Organizations (MSOs): Non-physician investors can establish an MSO to handle non-medical business operations (e.g., marketing, administrative tasks). The MSO contracts with a physician-owned practice to provide medical services, ensuring that medical decisions remain under the control of licensed physicians. But note the MSO merely provides administrative support, its owner is not an entrepreneur in the non-surgical cosmetic industry.
Medical Director Responsibilities:
The role of the medical director is crucial in ensuring compliance with CPOM. The medical director must be a licensed physician responsible for overseeing all medical aspects of the med spa. Key responsibilities include:
Clinical Oversight: Supervising medical treatments, such as injectables, laser treatments, and other aesthetic procedures either directly or through proper delegations.
Protocol Development: Establishing and enforcing treatment protocols to ensure patient safety and standardization of care.
Staff Training: Ensuring that all staff performing medical procedures are adequately trained and operate within their scope of practice.
Patient Assessments: Conducting or supervising initial patient consultations and assessments to determine the appropriateness of treatments either directly or through delegations.
Employment and Compensation Arrangements:
To avoid violations of CPOM, med spas must structure employment and compensation arrangements carefully. Types of arrangements include:
Direct Employment: Physicians and licensed medical professionals can be directly employed by the physician-owned entity, but not by non-physician entities.
Independent Contractor: The physician may serve as a medical director via an independent contractor arrangement in any type of ownership structure.
Compensation Models: Compensation for medical directors and other licensed professionals should not be based on the number of procedures performed or revenue generated, as this could be seen as incentivizing medical decisions based on financial considerations rather than patient care. A salaried employee or a flat-fee independent contractor agreement for payment is best.
Medical Decision-Making:
All medical decisions at the med spa must be made by licensed physicians, not by corporate managers or non-medical personnel. This includes:
Treatment Plans: Physicians must approve all treatment plans and ensure they are tailored to the individual needs of each patient.
Procedure Approvals: Only physicians or appropriately supervised licensed medical professionals can approve and perform or delegate medical procedures.
Patient Consultations: Physicians must conduct initial patient consultations or delegate them to a qualified mid-level provider under appropriate delegation and supervision.
Advertising and Marketing Practices:
Med spas must ensure that their advertising and marketing practices comply with medical advertising laws and do not mislead the public, such as:
Truthful Advertising: All promotional materials must accurately represent the services provided and not make false claims about the outcomes or qualifications of the staff.
Disclosure of Physician Involvement: Marketing materials should clearly indicate that medical procedures are overseen or performed by licensed physicians.
Licensing and Credentialing:
Med spas must ensure that all medical professionals are properly licensed and credentialed, including:
Verification: Regularly verify the licenses and certifications of all medical staff.
Scope of Practice: Ensure that each medical professional operates within their legal scope of practice as defined by their license and state regulations.
Compliance Programs:
Implementing a robust compliance program can help med spas adhere to the CPOM and other regulatory requirements. Sample protocols include:
Compliance Officer: Appoint a compliance officer responsible for overseeing adherence to all regulatory requirements and internal policies.
Training Programs: Provide regular training for staff on the CPOM, patient privacy (HIPAA), and other relevant regulations.
Audits and Monitoring: Conduct regular audits and monitoring to ensure ongoing compliance and identify areas for improvement.
Legal and Professional Guidance:
Med spas should seek legal and professional guidance to navigate the CPOM and other regulatory requirements, such as consulting:
Legal Counsel: Conferring with attorneys familiar with the industry to ensure that the med spa’s structure, contracts, and operations comply with the CPOM and other relevant laws.
Professional Associations: Join professional associations to stay informed about regulatory changes and best practices. But, keep in mind that each state’s laws are different. National associations may not be the best source of information.
Concluding Thoughts on Compliance With the Corporate Practice of Medicine:
Complying with the corporate practice of medicine doctrine is essential for med spas in Texas to operate legally and ethically. By ensuring that medical decisions are made by licensed physicians, structuring ownership and employment arrangements appropriately, and adhering to strict compliance programs, med spas can provide high-quality care while avoiding legal pitfalls. This approach not only protects patient safety but also enhances the reputation and success of the med spa.
Feel free to reach out if you need more specific information or further clarification.
Weitz Morgan is a leading law firm in Texas in providing comprehensive advice and guidance to med spas. With a deep understanding of the unique challenges and complexities faced by this rapidly growing industry, our team of experienced attorneys is dedicated to helping med spas navigate the legal landscape successfully.
We recognize that med spas operate at the intersection of healthcare and beauty, which necessitates a multifaceted approach to representation. Our firm offers a range of services, including a flat-fee med spa formation package and an outside general counsel subscription, tailored to meet the specific needs of med spas, ensuring compliance, mitigating risks, protecting licenses, and fostering a legally sound business environment.
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