By Patrick O'Brien, JD, legal coordinator for the American Med Spa Association

In many states, it can be a challenge to determine what specific interventions and tasks are within the scope of advanced practice registered nurses, registered nurses and licensed practical nurses. Often, the statutory scope of practice on which the nursing board relies is written in vague and general terms, such as "promoting health," "providing care and support" and "acquired through educational preparation in nursing." To provide additional guidance, many nursing boards have adopted the Decision-Making Framework promoted by the National Council of State Boards of Nursing (available here). However, when you reach out to these boards seeking additional guidance, they will ask you to work through the framework to answer your own question.

While the decision tree can be helpful in reasoning through a nurse's scope of practice, it often raises more questions than it answers. This is especially true for nurses who practice in medical spas and the aesthetic industry, since the procedures they are asked to administer are often very different from what is considered the "traditional" practice of nursing. For example, in the second question the framework asks if the task is "consistent with evidence-based nursing and health care literature," but it does not provide information about how much evidence is needed or which publications are acceptable sources. Similarly, the fourth question asks about "necessary education to safely perform the activity," but again, how do you know if you have enough education about the procedure? Is a weekend course enough, or do you need something that lasts a week or semester?

Fortunately, the Oregon State Board of Nursing recently provided a very helpful interpretive statement on cosmetic procedures. Interpretive statements in general aren't unusual, but what makes this one unique is that the board walks through and discusses the issues and reasoning for each question in the decision framework as it pertains to procedures a nurse could perform in a medical spa. We won't review the whole statement here, but we want to point out some of the more interesting points in the board's analysis.

• Is the role, intervention or activity prohibited by the Nurse Practice Act (NPA) and Rules/Regulations or any other applicable laws, rules/regulations or accreditation standards? In addressing the first question, the board makes it clear that nurses don't operate on their own and can only accept procedures when they are ordered by licensed independent prescribers. The board also looks not only at the NPA, but also at the medical practice act and health authority laws, as well as the interpretive guidance from those organizations in answering this step.
• Is performing the role, intervention or activity consistent with professional nursing standards, evidence-based nursing and health care literature? Here, the board gives some qualification to what sort of literature is acceptable. They point to guidelines from specialty nursing associations as well as peer-reviewed publications. Therefore, information in newsletters and trade publications likely is not going to be sufficient.
• Are there practice setting policies and procedures in place to support performing the role, intervention or activity? For this question, Oregon discusses additional aspects of what constitute appropriate policies and procedures. Its main points are that the nurse has a professional responsibility to practice according to the board's standards, and the facility policies and protocols cannot force them to practice outside of those standards. This includes refusing to accept a delegated procedure that the nurse deems unsafe.
• Has the nurse completed the necessary education to safely perform the role, intervention or activity? The board agrees that there is rarely an identified educational standard for medical spa procedures. However, the burden falls on the nurse to show that the education he or she has received is sufficient. For non-ablative procedures, the Oregon board sets a minimum of 40 hours of laser education from the American National Standards Laser Safety Education Program.
• Is there documented evidence of the nurse's current competence (knowledge, skills, abilities and judgment) to safely perform the role, intervention or activity? The board stresses the need for nurses to maintain records of all their education and other methods they used to acquire competency in a procedure. While it may seem like a tedious requirement, these records will be critical information if the nurse ever needs to respond to a complaint.
• Would a reasonable and prudent nurse perform the role, intervention or activity in this setting? This is the most uncertain question. After all, what constitutes a reasonable and prudent nurse? Here, the board interprets this question to mean a prudent nurse would be one who can answer "yes" to questions 1 – 5.
• Is the nurse prepared to accept accountability for the role, intervention or activity for the related outcome? The final step in this framework is simply reminding the nurse that he or she has accountability for performing the procedure and its outcome. The nurse's willingness to accept the responsibility is not a scope of practice issue, but it does serve as a final check in determining answers to scope of practice questions. If the nurse chooses to decline, it probably means that one of the previous questions was not answered clearly in the affirmative.

Now, obviously, this analysis is specific to Oregon and won't apply completely to your state. It does, however, provide insight into how your own state's board might navigate this decision framework. Finding answers about the legal aspects of the medical aesthetics industry and educational issues can be daunting. AmSpa members can check their states' legal summaries to determine if a procedure falls within their statutory scope of practice. However, nurses still will need to examine their own educational backgrounds and the practice setting to determine if the procedure is within their personal scope of practice.