BILL ANALYSIS
AB 252
Page 1
Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
AB 252 (Carter) - As Introduced: February 11, 2009
SUBJECT : Practice of medicine: cosmetic surgery: employment
of physicians and surgeons.
SUMMARY : Authorizes the revocation of a physician and
surgeon's license who provides elective cosmetic medical
procedures or treatments (cosmetic surgery) in violation of the
prohibition against the corporate practice of medicine (CPM).
Specifically, this bill :
1)Authorizes the revocation of a physician and surgeon's license
if the individual practices medicine with a business
organization that offers to provide cosmetic surgery in
violation of CPM.
2)States that a physician and surgeon who does not own that
business organization but contracts to serve as the medical
director of a business organization that provides cosmetic
surgery is deemed to have knowledge that the business
organization is in violation of CPM.
3)States that a business organization that provides cosmetic
surgery in violation of CPM and employs a physician and
surgeon to facilitate its business is guilty of a public
offense.
4)Defines "outpatient elective cosmetic medical procedure or
treatments" to mean a medical procedure or treatment that is
performed to alter or reshape normal structures of the body
solely in order to improve its appearance.
5)Makes legislative findings and declarations that the
provisions of this bill authorizing the revocation of a
physician and surgeon's license for violations of CPM is
declaratory of existing law.
EXISTING LAW :
1)Requires any person who practices medicine to hold a valid
certificate to practice medicine. Establishes the Medical
AB 252
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Board of California (MBC) to license and certify physicians
and surgeons.
2)Prohibits corporations and other artificial legal entities
from having any medical professional rights, privileges, or
powers (known as the "prohibition against CPM "). However,
existing law further provides that the MBC may, pursuant to
regulations it has adopted, grant approval for the employment
of physicians and surgeons on a salary basis by a licensed
charitable institution, foundation, or clinic if no charge for
professional services rendered to patients is made by that
institution, foundation, or clinic. Provides other certain
exceptions to the prohibition against CPM.
3)Makes it unprofessional conduct for any licensee to violate,
or attempt to violate, assist in, or abet the violation of, or
to conspire to violate the prohibition against CPM. Requires
the MBC to take action against any licensee who is charged
with unprofessional conduct. Specifies the types of actions
that constitute unprofessional conduct.
4)Requires the MBC, in conjunction with the Board of Registered
Nursing, and in consultation with the Physician Assistant
Committee, and professionals in the field, to review issues
and problems relating to the use of laser or intense light
pulse devices for elective cosmetic procedures by physicians
and surgeons, nurses, and physician assistants.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "The
purpose of the bill is to train needed enforcement attention,
with meaningful penalties on the all too common incursion into
the practice of medicine by business models that attempt to
create the appearance of compliance with existing California law
that allows for delegation of the practice of medicine by
physicians and surgeons to mid-level practitioners. However,
those arrangements are unlawful from their inception, yet have
not been prioritized for prosecution owing, largely, to the
rather paltry potential penalties associated with the 'corporate
practice of medicine.'
"The scope of the problems addressed by the bill is summarized
AB 252
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as follows:
"Alternative patient treatment sites, often called "medi-spas,"
have become a major, and often misleading, presence in the
medical cosmetic skin care field - a phenomenon witnesses before
the Boards [MBC] regularly referred to as an 'industry' serving
'clients.' They may be freestanding locations, or are routinely
located in potential high-volume locales such as shopping malls
or centers.
"Medical spas are marketing vehicles for medical procedures. If
they are offering medical procedures, they must be owned by
physicians. The use of the term 'medical spa' is for
advertising purposes to make the procedures seem more appealing.
In reality, however, it is the practice of medicine."
Background - Corporate Practice of Medicine .
CPM is usually referred to in the context of a prohibition,
banning hospitals from employing physicians. CPM evolved in the
early twentieth century when mining companies had to hire
physicians directly to provide care for their employees in
remote areas. However, problems arose when physicians' loyalty
to the mining companies conflicted with patients' needs.
Eventually, physicians, courts, and legislatures prohibited CPM
in an effort to preserve physicians' autonomy and improve
patient care.
Existing state law generally mirrors the principles described
above against CPM, with specific exceptions. The policy is
intended to prevent persons who are not medical professionals
from interfering with or influencing the physician's
professional judgment.
In an attempt to circumvent this legal prohibition, some
individuals have created business and management schemes that
violate the spirit of the law by providing management services,
franchises, or participating in other models that result in the
potential for unlicensed persons or entities influencing or
making medical decisions in violation of the law.
Physicians who are employees of non-physician owned spas are in
violation of the CPM prohibition and may be disciplined for
unprofessional conduct.
AB 252
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Background - Physician Supervision of Laser Procedures .
In the last decade, new technology in laser procedures has not
only advanced in technique and equipment, but in popularity as
well. According to the American Society of Plastic Surgeons,
laser hair removal ranked in the top five cosmetic
minimally-invasive procedures. A common and visible result of
this trend has been the proliferation of "medi-spas," surfacing
in local spas and malls which offer services that were
traditionally performed in a doctor's office. Commensurate with
this trend is the concern that an estimated 95% of laser
hair-removal treatments are being performed without physician
supervision.
Current law restrict the use of lasers to physicians, although
physicians may delegate the use of lasers to physician
assistants (PA), registered nurses (RN), and nurse practitioners
(NP) under their supervision. Regardless of supervision,
physicians may not delegate laser use to medical assistants,
licensed estheticians, or other persons.
While current law allows the delegation of laser treatments to
the above mentioned licensees, it requires supervision by the
physician. Standardized procedures for nurses and delegation of
services agreements for PAs allow the procedures to be performed
while the physician is not on-site; however, they do not absolve
physicians from their supervisory responsibilities.
In 2007, the MBC conducted a series of hearings on the issues
related to laser treatments by physicians, nurses, and PAs. In
the course of these hearings, the MBC received many comments
regarding the illegal practice of "rent-a-license." This term
refers to a physician operating as a "paper-only supervisor" who
provides little or no supervision to the nurses or PAs
performing laser procedures. Although standardized procedure
guidelines allow physicians to delegate laser procedures to
nurses that have the experience and education necessary to
perform the delegated task, the guidelines require the RN be
able to immediately communicate with a patient's physician
concerning the patient's condition. However, current law does
not specify a geographic proximity for a physician's supervision
of a nurse or the number of nurses or locations that a physician
can supervise.
Support . The American Society for Dermatologic Surgery
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Association writes, "This bill targets the unlawful corporate
practice of medicine through sham 'rent-a-doc' supervision
schemes that are all-too-common in settings offering and
rendering medical procedures which happen to be cosmetic. There
is a 'commodity' mentality that has developed in California
regarding performance of medical procedures that happen to be
cosmetic in nature.
"AB 252 will provide the Medical Board of California and other
consumer protection agencies with enhanced enforcement tools
needed to pursue well-resourced corporate entities unlawfully
practicing medicine through exotic, complicated and illegal
business arrangements with 'employed' or 'contracted'
physicians."
Related legislation : AB 2398 (Nakanishi) of 2008 was a similar
bill that was held on the Senate third reading file.
REGISTERED SUPPORT / OPPOSITION :
Support
American Society for Dermatologic Surgery Association (sponsor)
American Academy of Dermatology Association
American Federation of State, County, and Municipal Employees
(AFSCME)
California Academy of Eye Physicians and Surgeons
California Academy of Physician Assistants
California Medical Association
California Society of Dermatology and Dermatologic Surgery
California Society of Plastic Surgeons
Opposition
None on file.
Analysis Prepared by : Ross Warren / B. & P. / (916) 319-3301