Health care boards in California are increasingly focusing on supervision issues, which can result in discipline for aiding and abetting unlicensed practice. Two examples of this are a warning recently issued by the Medical Board of California to its licensees, and a recent reversal of a longstanding position by the Physical Therapy Board. Licensees should be aware of a heightened vigilance for inadequate supervision of, and unlicensed practice by, employees of licensees of these boards.
The Medical Board of California issued a warning in its newsletter against the use of unlicensed international medical school graduates in medical practices to perform certain treatments. This follows a line of advisories cautioning physicians to limit or refrain from using aides, assistants or nurses to perform certain cosmetic procedures. The difficulty with this area of regulatory compliance is that as new technology emerges and procedures develop, the rules of what certain subordinate licensed personnel or unlicensed personnel can do is often a matter of expert opinion and internal board policy. A good rule of thumb is that the supervising practitioner and the licensed subordinate should both check with their licensing agencies to insure a specific procedure falls within the scope of their respective licenses. A health care professional using any unlicensed personnel for participation in patient treatment, regardless of their skill level, may be doing so at great risk. Physicians have been cautioned to take special care to not enter into business with, or be employed by, unlicensed individuals who exercise some degree of control over patient treatment.
The Physical Therapy Board also has struggled with issues of unlicensed practice as well as improper role reversals between physical therapists and physical therapist assistants. The PT Board recently reversed its longstanding position that a corporation not owned by physical therapists could provide physical therapy services, provided that the corporation was not owned by physical therapist assistants who worked in the corporation as PTAs. The Physical Therapy Board now takes the position that physical therapists must incorporate, if at all, as professional corporations solely owned by physical therapists. The former rule was a reflection of the market reality that physical therapists often have worked in organizations owned by other health care professionals or business savvy physical therapy assistants. This rule reversal, unfortunately, leaves many unanswered questions about potential license discipline when professionals from different health care disciplines go into business together, a practice which, the new rules demonstrate, remains highly disfavored.