By Madilyn Moeller, Editorial Assistant, American Med Spa Association

An unlicensed Wisconsin man claims to have performed over 70,000 laser hair removal procedures at his Sheboygan clinic, under the license of a physician. This supervising physician resides two-and-a-half hours away in Wausau and visits the clinic in-person once each year, though they claim to communicate with the man regularly on a primarily remote basis.

The man's record aside, his medical spa may be operating outside of the reasonable bounds of medical spa regulations when it comes to supervision by a physician. In fact, the man reportedly wants more regulation of laser services in Wisconsin.

The case is now under investigation by the Wisconsin Department of Safety and Professional Services (DSPS). Compliance with the laws on the practice of medicine is important, not only for patient safety but also because it can lead to unprofessional conduct charges due to aiding the unlicensed practice of medicine. Let's discuss compliance with medical directors and good faith exams.

Legal Components of the Case

Is the medical spa legally performing laser hair removal treatments? According to Wisconsin law, a medical assistant or laser technician is permitted to perform laser hair removal, provided the person is competent to perform the procedure when delegated and supervised by a physician who is also trained in the procedure, takes full responsibility, and makes it clear to the patient that the task is being performed by an unlicensed person.

Is two-and-a-half hours away and one in-person visit per year satisfactory for the law's requirements? Regulations are vague with these requirements, though some states give guidelines about the distance in miles or in minutes that the medical director can be away from the medical spa. For patient safety in the event of adverse reactions, there should be an experienced medical professional ready who can immediately respond to the situation.

Supervision regulations vary based on which license the provider who will be performing the procedure holds. In this case, they hold none.

What About Good Faith Exams?

Unless the state has an exception for laser hair removal, as is the case with Georgia's separate cosmetic laser licensing law, these treatments are considered to be medical procedures. Before any medical procedure can be performed or treatment prescribed, the patient must be seen by a physician or another healthcare licensee that can make medical diagnoses and prescribe treatments such as an advanced practice registered nurse (APRN/NP) or physician assistant (PA).

In most states, these providers can then delegate treatments to other providers, such as registered nurses or licensed vocational nurses, given the procedure is within the scope of practice of that provider and they have the proper training. Depending on their license and the regulations in their state, the prescribing provider may have to supervise on-site; however, in nearly all states, they must be available to respond to an emergency.

To remain compliant, your medical spa should have a physician, APRN/NP or PA examine and create a treatment plan for every new patient that comes to the facility. Returning patients don't necessarily need an exam each visit, provided they are still receiving treatment pursuant to the treatment plan. However, it is good practice to have a good faith exam at least every year to assess their progress, make adjustments and note any changes to their situation.

As the number of patients and treatments grow, scheduling the good faith exams with your physician or prescribing provider can become difficult. One way to increase efficiency and maximize their time is to utilize telemedicine. Telemedicine has been expanding into all aspects of medical practice throughout the country thanks to its convenience and safety and has been greatly accelerated by the needs of the COVID-19 pandemic. The usually baseline rule for telemedicine is that it should meet the same standard of care as an in-person visit. However, there may be regulations about which providers need to be present during the telemedicine appointment, or special rules on consents, patient privacy and confidentiality. Look into the laws of your state regarding telemedicine. And, of course, continue to follow all HIPAA privacy laws with your use of telemedicine.

A Question of Compliance

The industry benefits when medical spas have a reputation of safety and good practice. Patient safety is paramount, and your efforts to keep your medical spa compliant do not go unnoticed. Continue to seek news in your state about developing cases; these provide opportunities to discuss regulations and how the industry can improve.

AmSpa tracks new and existing laws regarding medical aesthetics and the scope of practice for med spa providers. Become a Member to take advantage of our state-by-state legal summaries and stay informed about legal updates in your state.