If you live in the med spa, nurse practitioner (NP), or physician assistant (PA) ecosystem, Delegation Agreements are probably not new to you. However, with so many boilerplate agreements floating around, many practice owners simply grab a free version, input names and send out for signature, without much thought as to the validity of the contract.[1] We’ve seen countless forum posts where folks share agreements that are deficient in state-specific language, maintain unenforceable provisions, and provide no safeguards against potential scope of practice issues. These agreements do nothing to protect your medical license or limit liability.
Before diving into necessary elements of the agreement, let’s consider why we even have them. First, the document is intended to ensure that the recipient (the “delegatee”) has a full understanding of the duties for which they are responsible and the accompanying protocols in place. Additionally, this agreement is a last line of defense for the delegating provider (the “delegator”) in the event of a medical board or Office of Inspector General (OIG) investigation. Don’t get caught up in the semantics. The bottom line is that this is a critical document to the legal operation of your med spa or practice. Below we outline four key components that must be included in every Delegation Agreement.
Initial Consultation
Initial consultations, also known as the initial exam, good faith exam, or GFE, are an important piece of establishing a provider-patient relationship. As with much of this area of law, state statutes will dictate who must perform the initial consult. In some instances, the physician themselves will be required to conduct an in-person exam, reviewing medical history and evaluating the patient’s candidacy for treatment. In other cases, however, the initial consult may be delegated to an NP or PA, as long as there is a follow up discussion between the delegating physician and NP/PA regarding the findings. The Delegation Agreement must clearly explain who is responsible for the initial exam, how it is to be administered (in-person versus telehealth) and follow up steps once the patient has been evaluated.
Delegated Duties
This may seem a bit obvious, but it is imperative that all duties to be performed by the delegatee are clearly articulated. While both parties are well-intended when striking delegation terms, in the event of an investigation, the finger-pointing will generally start with a look at the delegated duties list. If a delegatee oversteps their specific duties per the contract, it may ease delegator liability. Conversely, if an agreement provides only vague terms, the parties leave it to an investigator to interpret what should have been spelled out in black and white. State medical boards will typically give guidance as to what duties may or may not be delegated.
Scope of Practice
Scope of practice issues are one of the most scrutinized elements of medical board and OIG investigations. A finding that a provider overstepped their scope of practice – or that a delegating provider delegated duties beyond the delegatee’s scope - has sever ramifications for both parties, including the stripping of medical licenses, fines and criminal charges. As such, the delegating provider must be absolutely sure that the delegated duties are allowed to be performed by the delegatee. In some states, a laser technician that was trained by a vendor may be delegated the responsibility of shooting the respective laser. In other states, the technician may be required to maintain a higher certification or license. A lack of familiarity with your state’s requirements is a surefire way to cripple the business you worked so hard to build. The Delegation Agreement should include language that a delegatee will only perform procedures that are within their scope of practice as articulated by the state board of medicine.
Oversight and Reporting Protocols
Unlike some of our favorite 80’s late night informercials that preached “set it and forget it," the delegation relationship is one that requires continual oversight. We advise all clients to ensure they have strong processes and procedures in place for proper provider oversight and internal reporting. Meeting at least weekly to review charts is always a good practice so that providers can keep a pulse on the patient’s progress. In addition, ensuring that the provider has set hours of availability and that an emergency provider is on-call at all times are crucial parts of the relationship. All of this information should be clearly explained in the Delegation Agreement.
Though this is not an exhaustive list of Delegation Agreement requirements, it serves to provide med spa and practice owners with some must-haves to ensure a clinically compliant delegation relationship. Though we may be partial, we believe it is imperative to consult with an attorney before using a form you found online or received from a friend or colleague, as the stakes are simply too high. If you would like to discuss your needs for a delegation arrangement, the attorneys at Marti Law Group are happy to help. Please contact us at (860) 552-7770 or email info@martilawgroup.com.
[1] If you insist on the DIY option, check out the attorney-drafted forms at MyModelDocs.com.
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