By Patrick O'Brien, JD, Legal Coordinator, American Med Spa Association, and Renee E. Coover, JD, ByrdAdatto

In response to a significant increase in COVID-19 cases, Illinois Governor J.B. Pritzker has announced plans to implement Tier 3 resurgence mitigations that include certain restrictions on the way businesses can operate. These mitigations will take effect on Friday, November 20, and will represent a return to stricter operating conditions for many Illinois businesses, including medical spas. However, as is typically the case, precisely how medical spas should operate under these conditions is not entirely clear. Here is what we know and how we believe Illinois medical spas should interpret these guidelines.

The new Tier 3 mitigation strategies include requirements for "Personal Care Services" to reduce capacity and limit or suspend services. The question on medical aesthetic practice owners and operators' minds is—do these new mitigation strategies apply to our aesthetic medical practices? Due to their hybrid nature, medical aesthetic practices and medical spas are often left in limbo when it comes to official state and local guidance, and this case is no different.

What we do know is that under the Restore Illinois plan, "Personal Care Services" encompass services provided at a defined set of businesses, including salons, hair braiders, barber shops, nail salons, spas, massage therapy clinics, waxing centers, tattoo parlors, tanning salons, hair club services, other providers of personal care services, and salons operated by schools of barber, cosmetology, aesthetics, hair braiding and nail technology. (See the guidance here.) However, the new mitigation strategies do specifically permit physical, occupational and massage therapy to continue if deemed medically necessary (with certain requirements), and the list does not include any health care professions among the other restricted professions. Thus, it appears that medical and health care services are exempt from the restrictions being placed on businesses providing Personal Care Services. Aesthetic medical practices, when properly formed, are no different from other medical practices. Medical spas are most likely subject to the same restrictions as other medical offices, such as dermatology and plastic surgery practices. Presently, the Tier 3 restrictions do not have any guidance on medical practices or medical services.

We do want to caution, however, that medical aesthetic practices licensed as salons and employing aestheticians to provide salon-type services will likely be subject to the Personal Care Services restrictions. If your medical spa provides non-medical aesthetic services, such as facials, you should consider complying with the restrictions and discontinuing any non-medical aesthetic services that require the removal of a face mask. Additionally, as we have counseled in the past (see here), the public and many enforcement personal do not know the difference between a medical spa and a day spa. So, while medical spas may not be technically subject to these new Tier 3 restrictions, they do run the risk of patients or competitors reporting these businesses for failure to comply with the restrictions.