BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 252|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 252
Author: Carter (D), et al
Amended: As introduced
Vote: 21
SEN. BUS., PROF. & ECON. DEV. COMMITTEE : 7-0, 6/8/09
AYES: Negrete McLeod, Aanestad, Corbett, Correa, Romero,
Walters, Yee
NO VOTE RECORDED: Wyland, Florez, Oropeza
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 79-0, 5/4/09 - See last page for vote
SUBJECT : Practice of medicine: cosmetic surgery:
employment of
physicians and surgeons
SOURCE : American Society for Dermatologic Surgery
Association
DIGEST : This bill authorizes the revocation of a
physician and surgeons license who provides elective
cosmetic medical procedures or treatments (cosmetic
surgery) in violation of the prohibition against the
corporate practice of medicine.
ANALYSIS :
Existing Law
CONTINUED
AB 252
Page
2
1.Requires any person who practices medicine to hold a
valid certificate to practice medicine. Establishes the
Medical 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
the corporate practice of medicine"). However, further
provides that the Division of Licensing of the MBC may,
pursuant to regulations it has adopted, grant approval of
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 made by that institution, foundation, or
clinic. Provides other certain exceptions to the
prohibition against the corporate practice of medicine.
3.Makes it unprofessional conduct for any licensee to
violate or attempt to violate, to assist in or abet the
violation of, or to conspire to violate the prohibition
against the corporate practice of medicine. 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 (BRN), and in consultation with the
Physician Assistant Committee (PAC) 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.
5.Specifies that the review conducted by the MBC, the BRN
and the PAC shall include the appropriate level of
physician supervision needed, the appropriate level of
training to ensure competency, guidelines for
standardized procedures and protocols that address
patient selection, education, instruction and informed
consent, use of topical agents, and procedures to be
followed in the event of complications or side effects
from treatment and procedures for governing emergency and
AB 252
Page
3
urgent care situations.
6.Requires the MBC and the BRN to promulgate regulations to
implement changes determined to be necessary with regard
to the use of laser or intense pulse light devices for
elective cosmetic procedures by physicians and surgeons,
nurses and physicians.
7.Makes it unlawful to knowingly make or cause to be made
any false or fraudulent claim for payment of a health
care benefit. Specifies that any person who violates
this provision is guilty of a public offense. States
that when the claim or amount at issue exceeds $400, the
offense is punishable by imprisonment in the state prison
for two, three, or five years, or by a fine not to exceed
$50,000; if a claim or amount at issue is $400 or less,
the offense is punishable by imprisonment in a county
jail not to exceed six months, or by a fine of not more
than $1,000 or by both.
8.Defines cosmetic surgery for purposes of health insurance
and health plan coverage as any surgery that is performed
to alter or reshape normal structures of the body in
order to improve the patient's appearance.
This bill:
1.Authorizes the revocation of the license of a physician
and surgeon who practices medicine with a business
organization that offers to provide, or provides
outpatient elective cosmetic procedures, knowing that it
is owned or operated in violation of the prohibition
against the corporate practice of medicine.
2.Provides that a business organization that offers to
provide, or provides, outpatient elective cosmetic
medical procedures or treatment, that is owned or
operated in violation of the corporate practice of
medicine, and that contracts with, or otherwise employs,
a physician and surgeon to facilitate its offers to
provide, or the provision of, cosmetic procedures that
may only be provided by the holder of a valid physician's
and surgeon's certificate is guilty of violating the
prohibition against knowingly making or causing to be
AB 252
Page
4
made any false or fraudulent claim for payment of a
health care benefit.
3.Defines "outpatient elective cosmetic procedures or
treatments" as a medical procedure or treatment that is
performed to alter or reshape normal structures of the
body solely in order to improve appearance.
Background
Popularity of Cosmetic Procedures . Newspaper articles
provided by the sponsor claims that the number of Americans
undergoing cosmetic procedures, including chemical peels,
laser procedures, Botox shots, and wrinkle-filler
injections continue to rise. According to the American
Society of Plastic Surgeons' (ASPS) web site, there were 12
million cosmetic surgeries performed in 2007, which
represents a seven percent increase from 2006, and a 59
percent increase from 2000. ASPS indicates that the top
five surgical procedures were breast augmentation (348,000,
up six percent), liposuction (302,000, unchanged), nose
reshaping (285,000, down seven percent), eyelid surgery
(241,000, up three percent), and tummy tuck (148,000, up
one percent). Moreover, ASPS points out that
minimally-invasive cosmetic procedures rose by nine
percent, to nearly 10 million procedures in 2007.
Hyaluronic acid fillers, popularly known as Restylane,
Hylaform, Hylaform Plus, and JuvedermTM, jumped from fifth
most popular in 2006 to second most popular in 2007. The
top five minimally-invasive procedures were Botox (4.6
million, up 13 percent from 2006), hyaluronic acid fillers
(1.1 million, up 35 percent), chemical peel (one million,
down four percent), laser hair removal (906,000, up two
percent) and microdermabrasion (897,000, up 10 percent).
Medical Spas . The increasing popularity of cosmetic
procedures or treatments, and the lucrative business they
offer have given rise to a new model of providing cosmetic
services outside the traditional physician settings and
into malls and local spas. Medical spas or popularly known
as "medspas" are increasingly becoming the destination for
various cosmetic procedures or treatments.
Recognizing the growing popularity of medical spas, the MBC
AB 252
Page
5
has posted on its web site a fact sheet. The fact sheet
indicates that "medical spas are marketing vehicles for
medical procedures. If they are offering medical
procedures, they must be owned by physicians. The use of
'medical spa' is for advertising purposes to make the
procedures seem more appealing. In reality, however, it is
the practice of medicine. There is no harm in seeking
pampering or in wanting to look better. A visit to a spa
may provide a needed respite for our stressful lives, and
treatments that make us look better often make us feel
better. The Medical Board, however, is concerned when
medicine is being marketed like a pedicure, and consumers
are lead to believe that being injected, lasered, and
resurfaced requires no more thought than changing hair
color. According to the MBC's fact sheet, cosmetologists,
while licensed professionals and highly qualified in
superficial treatments such as facials and
microdermabrasion, may never inject the skin, use lasers,
or perform medical-level dermabrasion or skin peels. Those
types of treatments must be performed by qualified medical
personnel. In California, that means a physician, or a
registered nurse or physician's assistant under the
supervision of a physician. Patients must know the
qualifications of persons to whom they are entrusting their
health. Those seeking cosmetic procedures or treatments
should know that the person performing them is medically
qualified and experienced."
Corporate Practice of Medicine Prohibition According to
the MBC's web site, medical spas that offer medical
procedures or treatments involve the practice of medicine
and must be performed and owned by physicians. The
corporate practice of medicine doctrine generally prohibits
corporations or other entities that are not controlled by
physicians from practicing medicine to ensure that lay
persons are not controlling or influencing the professional
judgment and practice of medicine by licensed physicians
and surgeons. In an effort to ensure medical spas are not
violating the corporate practice of medicine doctrine, one
of the recommendations put forth by the MBC and BRN is to
give the higher priority to the investigation of corporate
practice of medicine violations in the medical spa clinics
or other settings using laser or intense-pulse light
devices and the re-establishment of the Operation Safe
AB 252
Page
6
Medicine Unit within the MBC.
Similar Legislation this Session
SB 675 (Negrete McLeod) has passed the Senate Floor and is
on the way the Assembly; and, among other provisions,
requires the MBC to adopt regulations on or before July 1,
2011 on the appropriate level of physician availability
necessary within clinics using laser or intense pulse light
devices for elective cosmetic surgery. Requires the MBC to
post on its Internet web site a fact sheet to educate the
public about cosmetic surgery, and the risks involved with
such surgeries. Makes a number of changes regarding the
approval, oversight and inspection of outpatient settings,
as defined, by the MBC and accreditation agencies approved
by the MBC, and in developing a plan of corrective action
for any deficiencies found by the accreditation agencies or
the MBC during inspections or otherwise. Includes in the
existing law definition of outpatient settings fertility
clinics that offer in vitro fertilization or assisted
reproduction technology treatments.
Prior Legislation
AB 2398 (Nakanishi), 2007-08 Session . Substantially
similar to the provisions of this bill, and would have
authorized the revocation of the license of a physician and
surgeon who practices medicine with a business organization
that provides outpatient elective cosmetic medical
procedures or treatments. AB 2398 failed passage on the
Senate Floor.
AB 2968 (Carter), 2007-08 Session . Would have enacted the
Donda West Law, which would prohibit elective cosmetic
surgery on a patient unless, prior to surgery, the patient
has completed a physical examination by, and has received
written clearance for the procedure from, a licensed
physician and surgeon. AB 2968 was vetoed by Governor
Schwarzenegger because of the State budget crisis.
SB 1454 (Ridley-Thomas), 2007-08 Session. Would have
required for purposes of advertising that a health care
practitioner, as specified, provide the type of license
under which the licensee is practicing and the type of
AB 252
Page
7
degree received upon graduation from professional training
and that a health care practitioner who is practicing in an
outpatient setting, as defined, and to wear a name tag
which includes his or her name and their license status.
Requires the MBC to adopt regulations on the appropriate
level of physician supervision necessary within clinics
using laser or intense pulse light devices for elective
cosmetic surgery, and that the MBC establish as one of its
priorities the investigation of unlicensed activity within
such clinics by reestablishment of the Operation Safe
Medicine Unit. Requires the MBC to post on its web site a
fact sheet to educate the public about cosmetic surgery,
and the risks involved with such surgeries. Makes a number
of changes regarding the approval, oversight and inspection
of outpatient settings, as defined, by the MBC and
accreditation agencies approved by the MBC, and in
developing a plan of corrective action for any deficiencies
found by the accreditation agencies or the MBC during
inspections, or otherwise. SB 1454 died on the Assembly
Floor.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/24/09)
American Society for Dermatologic Surgery Association
(source)
American Academy of Dermatology Association
American Academy of Facial Plastic and Reconstructive
Surgery
American Federation of State, County and Municipal
Employees, AFL-CIO
American medical Association
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, Inc.
Medical Board of California
Osteopathic Physicians and Surgeons of California
OPPOSITION : (Verified 6/24/09)
AB 252
Page
8
Department of Consumer Affairs
ARGUMENTS IN SUPPORT : The American Society for
Dermatologic Surgery Association (ASDSA), the sponsor of
this bill, indicates that this bill provides the MBC and
other consumer protection agencies with enhanced
enforcement tools necessary to pursue well-resourced
corporate entities unlawfully practicing medicine through
exotic, complicated and illegal business arrangements with
"employed" or "contracted" physicians. The sponsor points
out that this bill puts physicians who aid and abet the
unlawful invasion of the practice of medicine on
zero-tolerance notice regarding such conduct. This bill
strengthens enforcement of current laws and going after the
most frequent and pernicious offenders, those unlawful,
corporate-owned, chain med-spa operators who want to
practice medicine without proper licensure or ownership
structure. The ASDSA argues that medical spa chains have
created business management and franchising schemes that
involve hiring "medical directors" who serve as
"consultants" for the medical spas to get around the
prohibition against the corporate practice of medicine.
ASDSA opines that several large, corporate laser and
medical spa chains operate in flagrant violation of the
prohibition against the corporate practice of medicine
because penalties are minor costs of doing business.
ARGUMENTS IN OPPOSITION : The Department of Consumer
Affairs argues that this bill is duplicative of existing
law and is unnecessary. It point out that the MBC and the
BRN recently completed a task force on the sue of lasers
and found that diligent enforcement of violations of the
prohibition against the corporate practice of medicine and
violations of nurses' and physician assistants' scopes of
practices will deter illegal action by medical spas.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,
AB 252
Page
9
Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi,
Hernandez, Hill, Huber, Jeffries, Jones, Knight,
Krekorian, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza,
Miller, Monning, Nava, Nestande, Niello, Nielsen, John A.
Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas,
Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, Bass
NO VOTE RECORDED: Huffman
JJA:cm 6/24/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****