Laser treatment has been utilized with limited frequency for certain dermatological applications such as the removal of tattoos, acne scars, port wine stains, and skin blemishes for over a decade. However, in recent years, laser treatment for hair removal and wrinkle treatment has grown significantly in popularity, which has subsequently increased the demand for providers of laser treatment. Since state law governs the issue of who can perform these procedures, it is important for all current and prospective providers of laser treatment to be familiar with Michigan law, including the Michigan Public Health Code delegation provision regarding the use of lasers for dermatological purposes. In addition, on December 5, 2005, the Michigan Department of Community Health (“MDCH”) released a position statement regarding the use of laser equipment by health professionals, which clarifies the relevant law on the subject.
According to MDCH’s position statement, laser treatment falls within the Michigan Public Health Code’s definition of the practice of medicine because the treatment involves the “diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition by attendance, advice, device, diagnostic test, or other means…” Thus, generally speaking, dermatological laser procedures should be performed by a licensed physician. However, MCLA 333.16276 permits a “licensee, registrant, or other individual” to perform laser procedures for dermatological purposes as long as the procedure is performed under the supervision of a licensed physician. Notably, delegation will not be permitted unless the patient involved has knowledge and consents to the laser treatment procedure being performed by a non-physician. This delegation provision further permits physician’s assistants and nurse practitioners to perform these laser procedures without supervision, as long as the procedure is performed in a healthcare facility as narrowly defined by the Michigan Public Health Code (e.g., a hospital). It should also be noted that the delegation provision does not permit physician’s assistants and nurse practitioners to delegate the authority to perform these laser procedures to someone else.
The key aspect of this delegation authority for laser procedures, as noted and clarified in MDCH’s position statement, is the definition of “supervision,” as all providers of laser treatment should be well aware that the ultimate responsibility for the tasks and duties performed by any delegated individual falls on the licensed physician. Supervision entails the overseeing of, or participation in, the work of another individual by a licensed health professional in circumstances where at least all of the following conditions are met:
Acknowledgement by the physician that the delegated individual has the appropriate education, training or experience to properly use lasers. Continuous availability of direct communication in person, or by radio, telephone or other telecommunication, between the physician and the delegated individual. Regularly scheduled availability of the physician to consult, educate, and review the records and practice of the delegated individual in laser use. Development by the physician of written procedures and protocols to guide the delegated individual’s laser use.
These conditions clearly demonstrate the high level of care and attention that a licensed physician must exert when contemplating the possibility of delegating the authority to perform laser treatment. The licensed physician is not only ultimately responsible for the outcome of the procedure, but is also required to be readily available to assist (in person or by telephone or radio) the delegated individual at all times.
The delegation provision at MCLA 333.16276 is limited in application to the use of lasers for “dermatological purposes.” This entails any purposes relating to the diagnosis and treatment of medically necessary and cosmetic conditions of the skin, hair, and nails by various surgical, reconstructive, cosmetic, and nonsurgical methods. Therefore, this provision permits the delegation of such procedures as laser hair removal or acne scar removal, but it does not permit the delegation of other laser procedures unrelated to the practice of dermatology such as laser eye surgery.
A licensed physician who is considering delegating the authority to use laser treatment for dermatological purposes should address the issue in a prudent and thorough manner, as Michigan’s law on the issue is stringent. Specifically, utmost care must be taken when determining whether an individual has the appropriate qualifications and training to perform the laser procedures. This compliance corner provides two tips to assist licensed physicians contemplating this delegation.
Tip 1- Make sure to do your homework when selecting a delegated individual:
Pursuant to MDCH’s position statement, a delegated individual can be a licensed or unlicensed individual. With that said, it is recommended the licensed physician perform extensive research on the background, education, and training of any prospective delegated individual to ensure the individual is duly qualified, as it is reasonable to assume in practice “appropriate education or training” may entail at least a certification in laser treatment. The licensed physician should maintain a personnel file on each delegate which includes any and all certificates and other documentary evidence of training in laser treatments. In short, licensed physicians would be well-advised to err on the side of “over-qualified” when selecting a delegated individual, as the licensed physician must keep in mind that he or she is ultimately responsible for the outcome of any of the delegated procedures.
TIP 2-Do not overlook the requirement to establish written procedures or protocols to guide the delegated individual’s laser use:
A physician should provide a delegated individual with extensive hands-on training regarding the laser treatment to be delegated. Additionally, a physician must create a detailed written procedure or protocol to assist the delegated individual. This protocol can be in the form of a manual, with step-by-step instruction to guide the individual. The required duties and tasks of the delegated individual should be clearly elaborated in this written protocol.
Further, the performance of the delegated individual should be regularly reviewed and evaluated. The delegated individual should maintain detailed records of all laser procedures performed under the supervision of a licensed physician. These records should also be reviewed by the licensed physician on a regular basis. It is vital that delegated individuals not only possess appropriate background qualifications, but also maintain a satisfactory work record performing these laser procedures.