By Alex R. Thiersch, JD, CEO of the American Med Spa Association (AmSpa)
At AmSpa and ByrdAdatto, we are asked every day about the legalities of the medical aesthetic industry. We constantly hear from professionals wondering, for example, if an aesthetician can perform a particular procedure, or whether a licensed vocational nurse can inject a certain product, among many others. The number and types of questions we receive speak to the complexities of the industry.
Providing information such as this to medical aesthetic professionals is the reason why AmSpa was started in the first place, but people often question our conclusions or wonder why, if the law is what we say it is, no one is following it. As it turns out, finding legal answers in the medical aesthetic industry is not easy, and the answers themselves are not simple, and there are numerous reasons why.
Some conversations about the legalities of the industry repeatedly occur. For example, I will explain the requirement that a physician, physician assistant or nurse practitioner perform a face-to-face examination of a patient before a laser treatment or filler injection, and the person with whom I’m speaking will say that can’t be true—nobody does that. If that is what’s required, they say, you could shut down every medical spa in the state for violating this law. But it is true, it is the law, and yes, a regulatory agency probably could shut down most medical spas in a given state if it had the manpower to investigate them all.
The medical aesthetic industry is unique in many ways. First of all, its procedures are all elective, so medical spas must market to people who choose to undergo their procedures rather than require it. Also, medical spas do not deal with insurance—the industry is entirely cash-based. Because of these factors, medical spas have to market themselves to a degree that traditional medical outlets do not.
As a result of this need for effective marketing, non-physicians play key roles in the health of these businesses. For example, a registered nurse who is a skilled injector can be the person patients come to see, as opposed to the physician. This is a much different dynamic than can be found anywhere else in the world of medicine.
Additionally, medical aesthetic practices typically have to deal with multiple practice groups, including medical boards, nursing boards and boards of cosmetology. And because the medical aesthetics industry is so young, many of these agencies are dealing with questions that are being raised for the first time. Essentially, the industry is governed by laws that are not designed to govern it and people who are more concerned with other issues.
For example, nursing boards probably won’t have too much to say about CoolSculpting, since much of their time is spent dealing with pressing matters such as opioids. They have so much to deal with that they can’t reasonably be expected to understand the nuances of the medical aesthetics industry.
When AmSpa researches the laws that apply to medical aesthetics practices in a particular state, we start by finding what we can in the state’s legislation, but most of the time, these laws’ use in relation to medical aesthetic situations is tangential; they’re typically written to deal with other areas of medicine and nursing. Therefore, regulatory interpretation of these laws with regard to medical aesthetics is vital. If a board has not published an opinion on a matter, that does not necessarily mean it does not actually have an opinion—it means that it has not yet presided over an incident that has caused it to issue an opinion. When you’re dealing with multiple boards with multiple opinions, the situation is further complicated.
All this makes AmSpa’s job very challenging. Usually, we have to take what we know about the laws and the boards and try to determine what a ruling would be. When we say, “This is what we believe the rule is in this particular state,” it’s unlikely that it is taken directly from legislation, because there’s a good chance that specific legislation doesn’t exist. We can, however, combine precedents with our legal knowledge to give you the most complete possible interpretation of the situation.
Our attorneys have been researching these regulations for years. They have appeared before nursing and medical boards to argue cases, and they have spoken with officials about these issues. This is how we learn about these issues. It’s very difficult work, but we’re confident that our attorneys provide our members the best possible information.
For more information about med spa laws, become an AmSpa Member to schedule a complimentary initial consult with our partners at ByrdAdatto.