By Clint L. Nuckolls, JD, ByrdAdatto

Body sculpting, also known as body contouring, has surged in popularity as individuals seek non-invasive and minimally invasive methods to achieve their desired physiques. This increase in demand had led to a corresponding need for clarity about who can legally perform these procedures. The legal framework that governs body sculpting is complex and varies by state, but it generally hinges on the procedure being performed and the qualifications and licensing of the practitioner. There are both surgical and non-surgical procedures available to patients, but this article will concentrate on what health care practices should be aware of when offering non-surgical body-sculpting procedures to their patients. It will not address surgical body contouring procedures, such as liposuction, which fall outside the scope of this discussion.

The scope of body-sculpting procedures

Body sculpting is a medical procedure aimed at reshaping and improving the body’s appearance. The non-surgical treatments typically use medical equipment such as CoolSculpting, laser lipolysis, radiofrequency treatments and ultrasound therapy. These machines are used to target fat by freezing or heating it and can also target muscle to tone it. Each procedure requires a different level of expertise and involves varying degrees of risk, which, in turn, influences who is legally permitted to perform it.

Because these procedures involve medical techniques and interventions aimed at altering the body’s shape and contour to enhance physical appearance or address functional concerns, body sculpting is considered the practice of medicine. Most states define the practice of medicine broadly, so many services that intuitively may seem non-medical do qualify as medical services. Whether they are non-invasive methods such as laser lipolysis or invasive ones such as liposuction, a deep understanding of human anatomy and physiology and the potential risks and benefits involved is required. Therefore, body sculpting is categorized as the practice of medicine due to its reliance on medical expertise and its impact on patient health and living tissue.

The good-faith exam

Prior to any medical procedure being rendered, a crucial first step is to establish the physician-patient relationship and ensure that the patient is a good candidate for the procedure they are seeking. This is the purpose of the good-faith exam, which helps medical professionals make a diagnosis and determine an appropriate treatment plan for the patient. Good-faith exams go by many names, and, in fact, the term “good-faith examination” is only used as a legal term in California. It is common to hear the good-faith exam referred to as the “initial exam,” “physical exam” or “initial consult.” Regardless of the nomenclature, it is important to remember that the good-faith exam is an encounter that must happen before a patient receives a treatment to assess their current condition, note their medical history and ensure they are fit for the procedure.

Delegation and supervision

After completion of the good-faith exam, if it is determined that the patient is a good fit for the procedure, some state rules allow physicians to delegate body-sculpting procedures to other health care providers within their practice. However, this delegation must align with state laws, which often specify the level of supervision required. The extent and nature of physician supervision may vary depending on the health care setting, the type of services being provided and the specific requirements of state regulations. In general, physician supervision can be classified as:

• Direct supervision: The physician is physically present and directly supervising during the performance of certain procedures or treatments.
• Indirect supervision: The physician is available for consultation and direction as needed but is not physically present during the performance of procedures or treatments.
• General supervision: The physician provides overall direction and oversight but is not required to be physically present or available for consultation at the time of the procedure or treatment.

Besides abiding by the proper level of supervision, the practice should establish and maintain written treatment protocols. These protocols, often called standard operating procedures or SOPs, must be signed off on by the supervising physician, or in some cases the physician assistant (PA) or nurse practitioner (NP). This provides a step-by-step guide for the administering individual to follow and provides clarity in the procedure. The protocol also defines the standard of care and provides a layer of protection for the supervising physician as well as the providers who are performing the procedure. As such, when delegating this procedure, the provider rendering the body contouring must have the proper skills and supervision. Even when the practice meets these requirements, the personnel providing the treatment must be working within their scope of practice and training.

Scope of practice

In addition to the delegate’s education, training and experience, the practice must also consider state-prescribed scope of practice laws. Each type of medical professional has a defined scope of practice determined by state laws and medical boards that may limit the procedures they can perform, regardless of their training and experience. For instance, while an NP may have the authority to perform a wide range of medical procedures independently in some states, a registered nurse (RN) might need to operate under the direct supervision of a physician. These laws vary from state to state, and failure to adhere to them can expose the licensed professionals to liability and jeopardize their license. Therefore, those authorized to delegate tasks must guarantee that those receiving delegated responsibilities have undergone appropriate training and hold the proper licensing, are competent and, most importantly, are authorized by state law.

Physicians and surgeons

In most jurisdictions, board-certified plastic surgeons and dermatologists are the primary professionals authorized to perform body-sculpting procedures. These individuals have undergone extensive training in anatomy, surgical techniques and patient care, ensuring they can manage both the procedure and any potential complications. Yet, physicians and surgeons are still required to possess the necessary skills and training to perform these specific tasks. Even in a supervising role, it’s not enough that the physician simply possesses the requisite license. Licensing boards expect supervising professionals to be competent and able to step in if a clinical issue presents. Therefore, even though a physician possesses the medical license to supervise, if they aren’t trained or educated in or have never performed a particular procedure, there will be significant risk of unprofessional conduct jeopardizing their license.

PAs and NPs

PAs and NPs often play a significant role in performing and supervising non-invasive and minimally invasive body-sculpting procedures. Their ability to provide these services will be controlled by state laws and the specific regulations of the medical or nursing board. As such, depending on the state, the PA or NP may still need to be under the delegation and collaboration of a supervising physician.

For example, in Texas, PAs and NPs may perform procedures such as CoolSculpting under a physician’s delegation. The supervising physician must ensure the PA or NP has received adequate training and remains competent in performing the procedure.

RNs

RNs can also perform certain body-sculpting procedures, particularly non-invasive ones. For example, an RN in New York might perform CoolSculpting or laser fat reduction, but only after completing specific training and under the oversight of a licensed physician. The supervising physician is ultimately responsible for ensuring that the RN is competent to perform the procedure and adheres to the state’s medical board regulations.

Training and certification

Regardless of who is performing the body-sculpting procedure, appropriate training and certification are paramount. Manufacturers of body-sculpting devices often provide specialized training, which is critical for ensuring the safety and efficacy of the treatments. Additionally, many states mandate that practitioners complete specific training programs and obtain certification before they can perform body-sculpting procedures. Adequate training not only ensures compliance with state regulations, but also minimizes the risk of adverse outcomes, which can lead to legal liabilities. Ensuring that your staff is well-trained and certified can significantly enhance the reputation and safety profile of your practice.

Legal considerations and compliance

The legal framework surrounding who can perform body sculpting is designed to protect patient safety and ensure high standards of care. Practitioners must comply with state laws and regulations, which include licensing requirements, scope of practice limitations and supervision mandates. Failure to adhere to these regulations can result in severe consequences, including legal action, fines and loss of licensure.

Health care providers must stay informed about the specific requirements in their state and ensure they have the necessary credentials and training. Additionally, medical practices offering body-sculpting services should have clear protocols and procedures in place to ensure compliance with all relevant laws.

Navigate the legalities of body sculpting with ByrdAdatto

So, who can perform body sculpting? The answer is, “it depends.” With the proper training, always physicians; almost always PAs or NPs; usually an RN; and sometimes unlicensed individuals. Incorporating body sculpting into your practice can seem like a simple process, but it requires careful attention to legal and regulatory considerations. By understanding these considerations, practices can offer this treatment safely and effectively. ByrdAdatto can help practices incorporate body sculpting into their practice. If you want further guidance on your state’s regulations about body sculpting, contact ByrdAdatto.

Following the family tradition set about by his grandfather and father, Clint L. Nuckolls, JD, served our country as an Air Force officer, both stateside and overseas in Afghanistan. After finishing his commitment with the military, he became a project manager in the oil and gas industry, where he completed dozens of projects with total values ranging from $50,000 to over $13 million. But Nuckolls never lost his passion for personal freedoms and constitutional rights, making the path to law school a natural choice. As the husband to a future doctor, he naturally developed an interest in health care law while at SMU. With ByrdAdatto, Nuckolls leverages his business background and collaborative nature to support ByrdAdatto clients and their complex legal issues.