No Longer Elective: States Lay Down the Law

Posted By Mike Meyer, Thursday, March 26, 2020


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

Multiple authorities, from the surgeon general to the White House and the CDC, all recommend that elective surgical procedures be postponed or rescheduled in the face of the COVID-19 outbreak. Likewise, AmSpa recommends that aesthetic practices halt elective treatments and close during this crisis. These, of course, are recommendations and do not carry any legal penalties with them. However, many state and city leaders are adopting executive orders and emergency measures that do carry punishments for failing to follow them. Let's examine a few of these orders and how they apply to aesthetic practices.

The recommendations, executive orders and emergency rules base their elective procedure stance on two main goals. The first is to limit the spread of coronavirus infections, both to patients who may be susceptible to serious complications following surgery and to medical professionals who may be called on to support more urgent medical needs; the second is to reduce the expenditure of personal protective equipment (PPE) and medical resources. Each order is worded slightly differently, so they vary somewhat in their effect, but all are trying to further these two goals.

Ohio was one of the earliest states to take action on this. Its Department of Health released an order on March 17 (available here). In it, the department requires that all non-essential or elective surgeries and procedures that use PPE not be performed. It provides a list of elements to help determine which procedures are essential versus those that can be delayed. In short, if not performing the procedure carries a risk of death or irrevocable worsening of a condition, then it is considered essential; others that can be delayed without risk to the patient must be. Much more directly the Alabama Governor Kay Ivey has ordered that all elective medical or dental procedures be delayed.

In these examples, it is clear how these edicts would apply in a medical spa setting. Practitioners should be using some form of PPE in all aesthetic medical procedures under normal circumstances. Moreover, with very few exceptions a patient is not at risk of death or harm if a medical spa treatment is delayed.

Many cities and counties also are instituting "shelter-in-place" orders, which close non-essential businesses, but typically categorize health care services as "essential" and allow them to remain open. Therefore, for a medical spa or aesthetic practice, the question is, "Am I an 'essential business?'" Again, the answer depends on the language of the order, but they usually will prevent a medical spa from providing in-person services. If we look at Dallas County, Texas' Stay Home Stay Safe order, we notice that it allows "essential health care operations" to continue and the delivery of those services to be uninterrupted, but elsewhere prohibits "elective medical procedures" as well. A medical spa would not be forced to close under this rule, but it would effectively be prohibited from providing any aesthetic procedures. Practitioners could still see patients—ideally using telemedicine—prescribe medications and make recommendations, but any aesthetic treatments or procedures would need to wait until this crisis has passed and these restrictions are lifted.

While many locations are now under "shelter in place" orders or prohibit non-critical medical procedures, many are not yet subject to these restrictions. Should practices in these locations voluntarily follow the recommendations and close? Our opinion is yes, but here is another aspect to consider: the standard of care. Aesthetic medical practices are held to the duty to provide safe, quality care and to inform their patients of risks, as are all other medical practices. In the case of a widespread disease that can be contiguous well before the onset of symptoms and little testing except in serious cases, many people may not even realize they are sick. Of course, it is possible to take precautions to limit the chance of infection, but there is no way to entirely remove that risk. An adverse incident or failing to appropriately address these risks may lead to professional repercussions from licensing board investigations or damage to public reputation. As such, we feel medical spas should temporarily halt in-person services.

During this time, the situation is evolving rapidly, so check frequently with our Coronavirus Resource Center and your local authorities to stay up to date.

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