123s of Plastic Surgery

Michael S. Byrd | 8.30.21

A curious trend spread across the country throughout the 2020 pandemic. Locked indoors and forced to stare at ourselves on Zoom for uncomfortably long periods, thousands of Americans decided it was time to get some beauty work done. Naturally, they headed to the doctor for plastic surgery. It was the perfect opportunity: recovery time could be spent at home, and any significant changes to a person’s body could be explained away as faulty memory, strained by months of not seeing one another, or some lockdown weight gain that happened to go to all the right places.

 

This so-called “Zoom Boom” in plastic surgery led to explosive growth for the industry. Private equity firms, savvy investors, and enterprising entrepreneurs started to look for ways to buy in. But a medical practice is not like other business models. It’s not a marketplace where you can simply jump in at the perfect opportunity. There are specific legal factors that come into play and must be taken into account. And these factors can be challenging to navigate, even for the plastic surgeons themselves.

 

Those factors can range from business-related concerns — such as the legality of specific ownership models — to medical concerns — how to remain compliant while structuring the practice itself. There is much to consider, and many of these rules depend on where the practice is situated. Below are some of the most common concerns when it comes to legal compliance and plastic surgery.

 

Business Ownership and Plastic Surgery

In every state, there are rules regarding the corporate practice of medicine (often abbreviated as CPOM). The corporate practice of medicine, according to the American Medical Association, is a legal doctrine that “prohibits corporations from practicing medicine or employing a physician to provide professional medical services.”

 

There are several reasons why states pass laws related to CPOM. In most cases, laws based on the CPOM doctrine are designed to maintain the independence of a physician’s medical judgment by putting up a barrier between medicine and profit incentives.

 

These laws can vary significantly from state to state. In Florida, for example, it’s common for businesses — even if they are owned by non-doctors — to employ plastic surgeons. In other states, however, this would be non-compliant. What works in one area might not be legally possible somewhere else.

 

Thankfully, there are ways for non-medical professionals to get involved in every state. One way for entrepreneurs or investors to get involved in the business side of medical practice is the management services organization model or MSO model. A MSO functions by providing management and administrative services to a medical practice without getting involved in the clinical operations.

 

But creating an MSO isn’t as simple as it sounds. Every state has its own rules related to CPOM, and necessarily, these rules dictate what is and isn’t allowed when it comes to any management  service agreement established between a medical practice and a MSO. That’s why it’s essential that you seek out and understand the particular rules in your state before getting involved.

 

Running a Med Spa Alongside Plastic Surgery

In many instances, physicians and entrepreneurs will want to combine plastic surgery with MedSpas to make things more convenient for their patients. The basic idea is this: By putting all of these services in one location, the practice can offer more than the competition.

 

For example, if a patient goes to get a so-called “mommy makeover,” then combining plastic surgery and a MedSpa in one location will allow that patient to get Botox, laser treatment, and other cosmetic services following their surgery. All of this can be located in a one-stop shop. But just like with anything else, there are specific laws and regulations that must be followed if you want to set it up.

 

One of the most common challenges we see when it comes to plastic surgery practices running medical spas is a lack of understanding about the staffing restrictions of medical spas. No different from any healthcare provider, there is a scope of practice that must be followed within the MedSpa.

 

Every patient must receive a good faith exam from someone qualified to do so or face potential enforcement actions. In addition, each state has different rules about the kind of healthcare providers (RN, PA, etc.) who are authorized to perform treatments. Furthermore, the delegation of treatment, even when it comes from a qualified doctor, can also have specific regulations that vary from location to location.

 

There is no absolute rule to follow when it comes to the scope of practice, which is why it is essential to know the specifics before moving into MedSpas as a plastic surgeon.

 

Surgical Suites

Many plastic surgeons will want an in-office surgical suite — in other words, an on-site operating room where doctors can perform elective cosmetic surgery. The benefits of a surgical suite are numerous. It can save time for the doctors, who no longer need to travel between a surgery center and their office, and it is also more convenient for the patients.

 

Once again, however, each state has its own rules and regulations regarding surgical suites. In many cases, doctors do not have the ability to simply place an operating table in the back room of their office and call it good. Instead, they must consult the statutes and regulations for their state to find out how to set up a surgical suite while remaining compliant.

 

For example, some states may require a surgical suite be licensed as an ambulatory surgery center (or ASC). Other states allow doctors to set up surgical suites without a license but with other certain restrictions. In each case, the law must be consulted before deciding to create a surgical suite in your office.

 

Medical Hotels

Another option for plastic surgery centers is a medical hotel. Medical hotels provide patients with overnight care immediately following surgery. In medical hotels, nurses can change bandages, swap out IVs, and help administer medication to recovering patients. It also affords more privacy than recovering at home or elsewhere, which is always advantageous for the fields of cosmetic and plastic surgery.

 

When it comes to medical hotels, state hotel laws do apply. It behooves anyone who wants to open a medical hotel to look into the hotel laws in their state. Although this is not often the case, some doctors do house their patients in local hotels following surgery, where overnight nurses move from room to room to check in on patients. Even if the patient is not staying in a literal hotel, similar laws could apply since the patient is paying to stay overnight in a building that is not legally considered to be a hospital.

 

In addition to this, there are regulations that must be followed when it comes to the transport, storing, and use of controlled substances. Medications must be kept reasonably secure and should be stored in the right conditions prior to their use. Reasonable safeguards, chains of custody, and other compliance factors come into play when transporting and storing controlled substances in medical hotels.

 

Since medical hotels are located outside of the medical practice, there is an increased chance of personal and professional liability. In some ways, the patient is still under the practice’s responsibility, but as discussed briefly above, there is more potential for things to go wrong. For this reason, comprehensive liability insurance and legal safeguards are recommended to protect your business when using medical hotels as part of your business.

 

Plastic Surgeons and Medical Director Agreements

Sometimes, plastic surgeons are asked to serve as medical directors for hospitals, ambulatory surgery centers, or medical spas. Most of the time, plastic surgeons could be offered a “medical director agreement,” which will outline the nature of the role and their responsibilities. When doing so, one must take the time to understand the nature of this agreement since there is no official or formal definition for the role of medical director — it is an entirely generic role that varies depending on who is defining it.

 

In some cases, the role can be relatively straightforward. In other cases, not as much. All of this information will be outlined in the agreement. For example, a plastic surgeon may be assigned more responsibility than they initially thought within the agreement. This is often misguidedly used as a way to “rubber stamp” certain medical procedures and services within the medical spa. This often results in disaster.

 

If the medical board comes after a MedSpa for rubber stamping, it will often attempt to point to the medical director’s agreement to deflect responsibility onto the doctor. Most of the time, this excuse doesn’t work. The medical board will simply note that — despite what the agreement says — the doctor had never assumed that level of responsibility in the first place. This doesn’t mean the doctor gets off scot-free, however. The medical board could choose to charge the doctor with aiding and abetting the unlicensed practice of medicine (in addition to charging the med spa for unlicensed practice).

 

That’s why it is so important to understand the responsibilities as outlined in any medical director agreement and to make sure the form and substance of the agreement match the reality of the practice. If a doctor is directly responsible for something, they need to be directly and actively involved in its practice.

 

Plastic Surgery: A Growing Industry

Even after the so-called “Zoom Boom” of the pandemic, the industry of plastic surgery continues to grow. Plastic surgery was once a furtive activity, but year after year, it becomes more and more socially acceptable to have surgery done (and even to discuss it openly). That’s a great thing for everyone but doubly so for people in the industry.

 

Because of this, it’s no small wonder that private equity firms and investors are looking for ways to buy into the growing sector of people seeking cosmetic and plastic enhancement. There’s nothing wrong with doing so. But as discussed in this article, the legal side of the business is incredibly complex. Plastic surgery is not a market where anyone can simply jump in — even plastic surgeons need to seek counsel if they want to remain compliant and flourish within this space.

 

For that reason, it’s more important than ever to get in touch with an expert to discuss where you stand when it comes to legal compliance and plastic surgery. If you have questions about how to remain compliant, whether it’s for the business or the medical practice of plastic surgery, schedule a consultation with us at info@byrdadatto.com.

 

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