Risky Business

As medical spas increase in popularity, the industry is becoming more attractive to  physicians and estheticians alike. However, a medical spa is governed by the same rules and regulations as a medical practice, and practicing illegally or without proper supervision and training could put one’s license at great risk. So before your employees don a lab coat, fire a laser, bring in new clients, or get paid a percentage for each treatment they perform, it is important for you and your staff to familiarize yourselves with the laws and regulations in your state. Each state’s laws vary in regard to what an esthetician or laser technician can and can’t do in the medical setting (and some states do not even recognize the term “laser technician”), but there are a few key legal issues for estheticians to know in any medical spa setting, regardless of the state in which they reside.

First, and perhaps most important, is the question of whether an esthetician can perform medical treatments, like laser hair removal or injections. The answer? It depends. Every state has different laws regarding who can perform laser treatments and procedures. In Illinois, for instance, estheticians are strictly prohibited from performing any laser treatments that constitute the practice of medicine, unless the esthetician performs the treatment as a certified laser technician. But in Missouri, where the laws are much less strict, estheticians with proper training and licensure are allowed to work with lasers. So, it is important to check with your state’s requirements. When it comes to injectables, like Botox and fillers, almost every state prohibits estheticians from injecting, because it is outside their scope of practice.

Second, the concept of physician supervision and delegation comes up frequently in the medical spa setting. In a majority of states, estheticians and laser techs must be properly supervised by a physician or an advanced health practitioner when performing any type of medical treatment. Before any medical treatment is performed on a patient, the supervising physician at the medical spa must consult with and examine the patient in person to determine a course of treatment. In most states, this first-time consult and exam may be delegated by the physician to mid-level practitioners, such as physician assistants and nurse practitioners, but estheticians and laser techs are prohibited from performing any client examinations or offering clients medical advice.

Once the patient has been examined, the physician or mid-level practitioner may delegate the performance of laser treatments to a qualified, trained, and experienced individual. Since most states have no laser certification statute, individuals who can operate lasers are those who, in the physician’s judgment, are properly trained and experienced to do so. A variety of opinions exist on what it means to be properly trained and whether estheticians can perform laser treatments. But, in general, proper laser training extends beyond learning how to operate one type or brand of laser. The laser technician or esthetician should attend as many laser courses as possible to learn multiple modalities, laser physics, skin types, basic anatomy, and medical conditions that could potentially affect the laser’s effectiveness.

What about commissions? Is it legal to pay staff a percentage of a client’s fee for medical treatments? The medical spa business can be very lucrative for estheticians and laser techs who receive commissions for each patient they refer to the spa or each treatment they perform. But, is this legal? It depends on whether the commission is being paid on a medical or non-medical treatment. Most states have enacted some prohibition on “fee-splitting,” which makes it illegal for a physician to share any percentage of medical professional fees with non-physicians. Practically speaking, if a patient comes into a medical spa for Botox, laser hair removal, or any other medical treatment, the physician may not share a portion of the paid fee to any non-physician employee (nurses, estheticians, laser techs) in the form of a commission or bonus. This means that commissions for laser treatments—bonuses linked directly to any medical revenue—are strictly illegal. The good news is that estheticians can be paid on a commission basis for all non-medical treatments, like facials, chemical peels, and microdermabrasion, or the sale of non-medical skincare products.

The bottom line? The rules and regulations really depend upon where your business is based. It is crucial that you consult with an attorney in your state so that you know exactly what your estheticians and laser technicians can and can’t do.—Renee E. Coover, JD

*Please note that none of the information in this article should be considered legal advice. Every situation is different, and the laws of every state are different. Only a qualified local health attorney can advise you after hearing all the facts of your specific case. If you do not know an attorney, please contact the American Med Spa Association (AmSpa) for assistance at (312) 981-0993 or  [email protected]