Despite the ubiquity of medspas, especially in large urban areas, the legal landscape has not yet reached this hybrid business model. Due to ambiguities in the laws and regulations of most states, medspas face uncertainty in regulatory compliance and enforcement. Among other things, medspa owners must determine whether the services they offer constitute “medical treatment”, who can perform those services and under what conditions. With regard to the last point, since medspas often employ beauticians, medspas are often faced with the question of whether beauticians can perform certain services and, if so, whether they can do it independently or under the supervision of a doctor.
It is also relevant in the age of telemedicine whether such supervision should be provided by a physician present on site. By allowing such questions to go unanswered, the industry finds itself in a difficult situation. In fact, many of these small independent companies could face potentially significant implementation risks due to their current staffing. For those who are in the medical spa business, or those hoping to start one, there are a myriad of legal considerations to think about and little guidance.
In the absence of federal regulations, medical spa regulation varies by state, and few states have specific regulations related to medical spas. Many spa-like services are regulated by state laws. In Illinois, for example, the state prohibits typical spa employees, such as cosmetologists and beauticians, from using any technique, product or practice that is intended to affect living layers of skin. Therefore, they have determined that certain procedures constitute the “practice of medicine” and are not within the scope of the practice of a cosmetologist or a beautician.
This includes Botox, chemical peels, collagen injections, colonic (unless there is no representation of health benefits), liposuction, microdermabrasion (except superficial or light microdermabrasion intended only to remove dead skin cells, oil and other debris from the surface of the skin), dermaplaning, microblading, microneedling and radiofrequency. This list may surprise both doctors and non-doctors, as many spas offer such services. State laws and regulations will govern what medical procedures may be delegated and what types of licensed professionals may perform delegated procedures. In addition, contact the Texas Medical Board or the Texas Board of Nurse Examiners for applicable facility requirements for medical and nursing offices, if any.
Many non-medical providers and unlicensed providers have started offering services in spa settings, which may not comply with relevant state laws. Similarly, a “guiding” regulatory principle is that technologies and services that adversely affect living tissues are more likely to be considered medical treatment. In addition to property requirements, nurse practitioners and physician assistants (“mid-level professionals”) must be supervised by a licensed physician, as required by the Texas Medical Practice Act and Texas Medical Board rules. A physician with training and experience in performing medical procedures may delegate those procedures to other health professionals to perform them, provided that the physician knows that the person is qualified to perform the procedures and there is adequate supervision.
Similarly, medical device manufacturers who sell their technologies to medical centers engaged in the unauthorized practice of medicine may face tort liability. Therefore, if a doctor serves as a “medical director” by contract, without participation in the ownership of the medical spa, this could violate the corporate practice of medicine law. Failure to provide proper supervision, or being an absent medical director, can violate regulations and result in liability exposure if something goes wrong and a patient is injured. Time and again, I see “medical spas” offering medical services through standard corporations and LLCs.
The corporate practice of medicine is concerned that a physician's independent medical judgment may be compromised if a company that is not owned by a doctor runs the show and provides financial incentives in exchange for the physician's participation. A medical spa that hires a doctor as a “medical director” could be violating this law. It is also important to note that in states where splitting fees is prohibited, medical spa staff should not be compensated on a percentage income agreement for the provision of medical spa services. A plaintiff could be entitled to damages if the medical spa is deemed negligent by failing to meet an adequate standard of care to ensure patient safety.
The answer to this question is usually, if not always, established by state laws or medical board decisions. . .
