Why Is It So Hard to Find Legal Answers in This Industry?

Posted By Kate Harper, Tuesday, October 23, 2018

By Alex R. Thiersch, CEO of the American Med Spa Association

We at AmSpa and ByrdAdatto are constantly asked for information regarding the legalities of the medical aesthetics industry. Every day, we hear from professionals wondering, for example, why a registered nurse can perform one procedure but not another, or why a licensed vocational nurse can inject one substance but not another.

Providing information such as this to industry professionals is the reason why AmSpa was started in the first place, but we often get pushback from people who question our conclusions or wonder why, if the law is what we say it is, no one is following it. The truth of the matter is that finding legal answers in the medical aesthetics industry is not easy, and there are numerous reasons why.

Certain conversations regarding the legalities of the industry happen over and over again. For example, I will explain to someone about the requirement that a physician, physician assistant, or nurse practitioner perform a face-to-face exam of a patient before a laser treatment or filler injection, and the person with whom I'm speaking will say that can't be true—nobody does that. If that were the rule, they say, you could shut down every medical spa in the state. But it is true, it is the rule, and yes, you probably could shut down most medical spas in any given state if you had a mind to.

The medical aesthetics industry is unique for a few reasons. First of all, everything is elective, so you're marketing to people who choose to undergo a particular procedure rather than require it. Also, medical spas do not deal with insurance—it is a cash-based industry. Because of these factors, medical spas have to engage in marketing in ways that more traditional medical outlets don't typically have to consider.

As a result of this emphasis on marketing, non-physicians play a key role in the health of these businesses. For example, a registered nurse who is a phenomenal injector can be the person patients come to see, as opposed to the physician. This is a much different dynamic than you are going to find anywhere else in the world of medicine.

Additionally, medical aesthetic practices have to deal with multiple practice groups, including medical boards, nursing boards, and boards of cosmetology. And because the medical aesthetics industry is so new, many of these agencies are dealing with the issues raised by its practice for the first time. Essentially, the industry is being governed by laws that are not designed to govern it and people who are largely concerned with more pressing issues.

For example, representatives of a nursing board probably don't have many thoughts about CoolSculpting, since much of their time is spent dealing with pressing matters such as opioids. They have so much going on that they can't reasonably be expected to understand the nuances of the medical aesthetics industry.

When AmSpa researches the laws that apply to medical aesthetics practices in a particular state, we start by looking up what we can in the state's legislation, but nine times out of 10, these laws' application to medical aesthetics situations is tangential. They're typically written to deal with other areas of medicine and nursing. Therefore, the boards' interpretation of these laws with regard to medical aesthetics is of the utmost importance. If a board has no published opinion on a matter, that doesn't necessarily mean that it doesn't have an opinion—it just means that they have not yet presided over an incident that has caused them to issue an opinion. When you're dealing with multiple boards with multiple opinions, it complicates things further.

All this makes AmSpa's job very difficult. Much of the time, we have to take what we know about the laws and the boards and try to pinpoint what a ruling would be. When we say, "This is what we believe the rule is in this particular state," it's probably not taken directly from legislation, because that legislation likely doesn't exist. We can, however, combine precedents with our legal knowledge to give you the best read on the situation possible.

Our attorneys have been researching these decisions for years. They have gone before nursing boards and medical boards to argue cases, and they have talked to officials about these issues. This is how we find out this information. It's very difficult, but we're confident that our attorneys offer our members the best possible information.

For more information about med spa laws, become an AmSpa Member to schedule a complimentary initial consult with our partners at ByrdAdatto.

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