HF 1529

as introduced - 88th Legislature (2013 - 2014) Posted on 03/13/2013 03:01pm

A bill for an act
relating to health; regulating laser treatments; requiring transparency in health
care advertising; amending Minnesota Statutes 2012, section 147.081, subdivision
3; proposing coding for new law in Minnesota Statutes, chapters 144; 147.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

[144.6586] HEALTH CARE ADVERTISING TRANSPARENCY.

(a) An advertisement for health care services that includes a health care provider's
name shall identify the title and type of license the health care provider holds under which
the health care provider is practicing.

(b) An advertisement for health care services that includes a health professional's
name shall identify the American Board of Medical Specialties member board, a board or
association with requirements equivalent to a board approved by that person's medical
licensing authority, or a board or association with an Accreditation Council for Graduate
Medical Education approved postgraduate training program that provides complete
training in the person's specialty or subspecialty, and shall disclose the name of the board
or association in which the health professional is certified.

(c) A health care provider who violates this section commits an act of professional
misconduct.

(d) For the purposes of this section, "advertisement" includes billboards, brochures,
pamphlets, radio and television scripts, electronic media, printed telephone directories,
telephone and direct mail solicitations, and any other means of promotion intended to
directly or indirectly induce any person to enter into an agreement for services with the
health professional. Advertisement does not include materials that provide information
about network providers that are created by an entity regulated under chapter 62A.

Sec. 2.

Minnesota Statutes 2012, section 147.081, subdivision 3, is amended to read:

Subd. 3.

Practice of medicine defined.

For purposes of this chapter, a person not
exempted under section 147.09 is "practicing medicine" or engaged in the "practice of
medicine" if the person does any of the following:

(1) advertises, holds out to the public, or represents in any manner that the person is
authorized to practice medicine in this state;

(2) offers or undertakes to prescribe, give, or administer any drug or medicine for
the use of another;

(3) offers or undertakes to prevent or to diagnose, correct, or treat in any manner or
by any means, methods, devices, or instrumentalities, any disease, illness, pain, wound,
fracture, infirmity, deformity or defect of any person;

(4) offers or undertakes to perform any surgical operation including any invasive
or noninvasive procedures involving the use of a laser or laser assisted device, upon any
person unless authorized under section 147.38;

(5) offers to undertake to use hypnosis for the treatment or relief of any wound,
fracture, or bodily injury, infirmity, or disease; or

(6) uses in the conduct of any occupation or profession pertaining to the diagnosis
of human disease or conditions, the designation "doctor of medicine," "medical doctor,"
"doctor of osteopathy," "osteopath," "osteopathic physician," "physician," "surgeon,"
"M.D.," "D.O.," or any combination of these designations.

Sec. 3.

[147.38] USE OF LASERS.

Subdivision 1.

Definitions.

(a) For the purpose of this section, the following
definitions have the meanings given.

(b) "Advanced medical practitioner" means a physician assistant licensed under
chapter 147A or an advanced practice registered nurse licensed under sections 148.171 to
148.285.

(c) "Care provider" means an advanced medical practitioner, a nurse, or a health
practitioner.

(d) "Health practitioner" means a licensed practical nurse licensed under sections
148.171 to 148.285, a clinical esthetician licensed under chapter 155A, a board-certified
electrologist by the American Electrology Association, or a certified laser technician
with a national certification.

(e) "Laser treatment" means a procedure using laser devices, intense pulsed light
devices, and radio frequency devices designed to alter the aesthetic appearance of a
human individual.

(f) "Nurse" means a nurse licensed under sections 148.171 to 148.285.

(g) "Physician" means a physician or osteopath who is licensed under this chapter
and has received laser safety training.

(h) "Supervision" means overseeing the delegated treatments performed by advanced
medical practitioners, nurses, health practitioners, and certified laser technicians.

(i) "Written protocol" means an ongoing order that is maintained at the facility at
which the treatment is to be performed.

Subd. 2.

General restrictions on the use of lasers, intense pulsed light devices,
and radio frequency devices.

(a) The use of a laser, intense pulsed light device, or radio
frequency device for aesthetic treatments may only be performed by a nurse, an advanced
medical practitioner, or a health practitioner.

(b) The use of a laser, intense pulsed light device, or radio frequency device for
aesthetic treatments may be performed by an advanced medical practitioner or health
practitioner if the treatment has been delegated according to subdivision 3; the delegating
physician provides the appropriate supervision according to subdivision 4; and the
advanced medical practitioner or health practitioner has met the training requirements
according to subdivision 5.

(c) The protocols governing all treatments performed in a spa setting must be
designed to result in outcomes that prevent either permanent visible scarring or objectively
identifiable functional loss. In the event of either of these negative outcomes, protocols
must be reviewed and changed where indicated.

Subd. 3.

Delegation of treatment.

(a) A physician may delegate the performance
of a laser treatment through the use of a written protocol. The written protocol must
provide, at a minimum:

(1) specific criteria to screen clients for the appropriateness of an aesthetic treatment,
including case selection and assessment guidelines;

(2) for clients who meet the selection criteria, the identification of the devices and
settings to be used;

(3) a description of appropriate care and follow-up for common complications,
injuries, or adverse reactions that may result from treatment, including a plan to manage
emergencies;

(4) a description of the treatment plan to be followed for each treatment procedure
delegated under the written protocol, including the method to be used for documenting
decisions, communicating with the delegating physician, and recording all treatment
provided in the client's record;

(5) a referral process for situations when an advanced medical practitioner or health
practitioner encounters a condition that may require a physician's attention; and

(6) a quality assurance plan for monitoring care provided by a care provider,
including patient care review and any necessary follow-up.

(b) The delegating physician shall accept full professional responsibility for all
treatment protocols for procedures performed by an advanced medical practitioner or
health practitioner.

(c) Prior to delegating the performance of any treatment, the delegating physician
must ensure that the care providers have satisfactorily met the training requirements
described in subdivision 5. The delegating physician is responsible for ensuring that the
care providers performing the treatments have demonstrated sufficient proficiency in
performing a specific treatment prior to treating clients.

Subd. 4.

Supervision.

(a) For purposes of this section, supervision must be
established and maintained by the delegating physician so that:

(1) the physician and care providers are or can be in contact with one another by
telephone or other telecommunication device;

(2) the physician is available to see any client within 24 hours; and

(3) the physician is able to refer any client for emergency care.

(b) A care provider may perform any delegated treatment authorized under
subdivision 2 under the general supervision of the delegating physician. The care provider
must be able to contact the delegating physician by telephone or other telecommunication
device.

(c) A delegating physician must be licensed to practice in the state of Minnesota.

Subd. 5.

Training requirements.

(a) Prior to performing any treatment, a care
provider must have successfully completed a laser safety training course.

(b) Before a care provider is permitted to perform a treatment, the care provider
must provide verification of successful completion of a laser safety training course to the
delegating physician and must demonstrate to the satisfaction of the delegating physician
that the provider is proficient in the treatment to be delegated.

Subd. 6.

Quality assurance.

Prior to delegating the performance of a treatment
procedure, the physician must ensure that there is a quality assurance program at the
facility at which the procedure is to be performed. The quality assurance program, at a
minimum, must include the following elements:

(1) a mechanism to identify and determine the cause of complications and
unintended effects of the treatments performed at the facility;

(2) a mechanism to review the adherence to the written protocol under which
delegated procedures are being performed;

(3) a mechanism to monitor the quality of the treatments performed;

(4) a mechanism by which the findings of the quality assurance program are
reviewed and incorporated into future written protocols and delegation orders; and

(5) ongoing training to improve the quality and performance of all treatments.

Subd. 7.

Facility restrictions.

(a) Any facility performing treatments for aesthetic
purposes:

(1) must inform the client prior to initiating any treatment that the treatment
provided by the facility is for aesthetic purposes only and not intended to diagnose or treat
a medical condition; and

(2) must have a medical director who is licensed under this chapter.

(b) All facilities offering laser treatments must obtain and maintain liability insurance
for the entity and all personnel, including the medical director and all care providers under
the director's supervision, in an amount that is usual and customary in the industry.