Top 5 Legal & Liability Issues of Medical Spas

By Susanne S. Warfield

1. Are you a Spa or a Medical Facility?

Not knowing how to answer this question is the top issue of medical spas, because how you answer this question affects state and some federal issues that you need to be aware of.

If you answerd a "spa," then all the rules and regulations of the state regulatory board apply. Don't think that a "medical spa" falls under the purview of the cosmetology board? As soon as the word "spa" was included in the name of the facility, the perception of the consumer is what counts. So does that mean that facial services offered in a medical spa are better than Sally's spa down the street? Some marketing would lead you to believe that "medical supervised" means that they are...read on.

If you answered "medical facility," then a whole other set of rules may apply to your facility depending on the state in which your business is in and also the type(s) of services that you are offering. Medical boards are slowly becoming aware of the need for some type of regulation of these facilities and the types of procedures being offered in them and most important–WHO is offering them!

The National Coalition of Estheticians, Manufacturers/Distributors & Associations (NCEA) definition of a medical spa is a facility that during all hours of business, shall operate under the on-site supervision of a licensed health care professional–operating within their scope of practice, with a staff that operates within their scope of practice, as defined by their individual licensing board if licensure is required. The facility may offer traditional, complementary, and alternative health practices and treatments in a spa-like setting.

2. "Medical Supervision" or " Medically Supervised"

What exactly does this mean? Is the physician available by phone, beeper, or actually on the premises?

Defining Medical Supervision

Medicare’s Definition:
“…does not mean the physician must be present in the same room…”

Insurance Company Definition:
“…available by phone, beeper, in the same physical location…”

A recent state ruling deemed that only a plastic surgeon or dermatologist or OD could supervise advanced practice nurses or physician assistants. Hmmn where does that leave the esthetician or skin care specialist?

3. Are you within the scope of practice of your license?

According to a 2006 survey conducted by PCI Journal, there were over 32 state regulatory boards that would NOT recognize the esthetician licensee in a medical practice. So where does that leave the skin care professional working in a "medical spa"? Some state regulatory boards have started to further define their rules and regulations to clarify this issue, however, it is always best to make sure that you update and review your Scope of Practice rules every 6 months. Most states do not have email newsletters or ways of alerting licensees in the state when changes are made.

4. Can nurses provide skin care?

Recently in Colorado a nurse opened up spa offering microdermabrasion and "Advanced Skin Care Services." and advertised herself as a nurse. A consumer complaint was filed (most likely a competitor) and the Nursing Board didn't' know what to do when they received a call from the Office of Barber and Cosmetology Licensure asking them to sanction against this nurse who was putting out a shingle. (In most states a nurse has to work under physician supervision).

The Cosmetology Board cited this individual for practicing without a license, opening a facility without proper facility licensure and a number of other smaller violations. (and I won't mention the dollar amount in fines!)

5. I'm a "medical esthetician" working under Dr. Wonderful and I can do laser!

This one is always a case of head in the sand mentality. First of all there is no such license as a "medical esthetician" - therefore there are no rules or regulations or board that is going to cite you or for that matter "back you up" should anything occur.

Again, depending on what state you practice in, your "esthetician" or "skincare license" may or may not be recognized in a medical practice. Oh, but you are working in a spa? Is the facility licensed by the cosmetology board? (or whatever the name in your state is)

If you answered yes – then you can only practice within your scope or practice. You can't wear two hats when it best suits your needs. If you are working in a licensed cosmetological facility–then you must working WITHIN YOUR SCOPE OF PRACTICE.

If however, you are working in a medical facility (and therefore NOT calling your facility a Medical Spa) then in most states, you can work under the physician's supervision (as a medical assistant) and have procedures delegated to you by the physician.

Nurses Beware: - According to many Nursing board rules and regulations, you are responsible for subordinates (i.e. medical assistants, and/or estheticians) and that would mean that in the case of an "incident"–you could be held responsible. Sit down with your physician and the risk manager of the insurance company and clearly define the reporting and supervisory structure of the facility along with your job description!

We have only scratched the surface with these top 5 issues of Medical Spas and as state boards and physician special interest groups become more politically aware, it will only be a matter of time that more legislation will appear on the horizon.

Stay current of your board's rules and regulations, bookmark the website in your browser and review board meeting minutes. Becoming more aware of what is going on around you legislatively, is a step towards reducing your liability knowing legally what you can and cannot do within your scope of practice.

Susanne S. Warfield, President/CEO of Paramedical Consultants, Inc. She is the leading expert on the business, legal and liability issues that affect physician and esthetician relationships working in a medical or spa setting and author of over 10 books for the skin care industry including Legal & Liability Issues of a Medical Spa. She can be reached at AskPCI@aol.com.