Case Study: Branding Your Medical Spa or Anti-Aging Clinic—Legal Considerations—Part 3 (Physicians & Estheticians)

Medical doctors as well as non-physician clients frequently ask our healthcare legal team about including non-medical personnel, such as licensed estheticians, in a practice that combines medicine, aesthetic or weight loss medicine, and cosmetics.

For example, one of our law firm clients recently inquired whether an esthetician doing could practice “under” the physician’s license. This was an arrangement the esthetician had proposed.

This was really a fantasy or at best a kind of garbled hearsay—like the old game of “telephone,” where a series of people try to transmit a message and by the end, the original message is invariably distorted.

The bottom line is that an individual licensed by the Board of Barbering and Cosmetology cannot practice medicine or perform medical procedures.

The Board of Barbering and Cosmetology provides guidance on is website under the label, Cosmetic Services. Among other things, Business & Professions Code, Section 7320, states: “This chapter confers no authority to practice medicine or surgery.”

Estheticians cannot perform medical procedures. Whatever they do must fall within their legally authorized scope of practice, which is set by statute.

In California, there are also legal rules governing the use of clinical space. These legal rules include the following:

  • B&P Code 7317 states: “Persons licensed under this chapter shall limit their practice and services rendered to the public to only those areas for which they are licensed.”
  • B&P Code 7347 requires an establishment license. Section 7349 makes it unlawful to hire or permit to work any person who performs licensed services without being licensed by the Board.
  • There are some other rules in the California Code of Regulations, such as requirements that operators’ and establishment licenses be posted conspicuously in the primary work stations and reception areas, respectively (16 CCR 965); and 16 CCR 991, which provides:
    • (a) No licensee may perform any act which affects the structure or function of living tissue of the face or body. Any such act shall be considered an invasive procedure.
    • (b) Invasive procedures include, but are not limited to, the following:

(1) Application of electricity which contracts the muscle.

(2) Application of topical lotions, creams, or other substances which affect living tissue.

(3) Penetration of the skin by metal needles, except electrolysis needles.

(4) Abrasion of the skin below the non-living, epidermal layers.

(5) Removal of skin by means of a razor-edged instrument.

(See also Section 7312, Business and Professions Code. Reference: Sections 7312(e), 7316, 7320, 7320.1, Business and Professions Code.)

The California Medical Board also makes its position very clear with a paper on the business of medical spas. Physicians who let their license be used in the service of unlicensed medical practice will pay the price. This includes medical doctors who do not properly supervise or who unlawfully delegate to ancillary personnel (including medical assistants) the use of lasers for medical treatment.

Significantly, Board FAQs include the following:

6. Who may perform microdermabrasion?

It depends. If it’s a cosmetic treatment, that is to say it only affects the outermost layer of the skin or the stratum corneum, then a licensed cosmetician or esthetician may perform the treatment. If it’s a medical treatment, that is to say it penetrates to deeper levels of the epidermis, then it must be performed by a physician, or by a registered nurse or physician assistant under supervision. Treatments to remove scarring, blemishes, or wrinkles would be considered a medical treatment. Unlicensed personnel, including medical assistants, may not perform any type of microdermabrasion.

7. I would like to provide non-medical dermabrasion, and hire an esthetician to perform that and also cosmetic facial and skin treatments. What do I need to do?

It is legal for physicians to hire licensed cosmetologists or estheticians to perform cosmetology services, if they have obtained a facility permit from the Bureau of Barbering and Cosmetology. You may apply for a permit with the Department of Consumer Affairs, Bureau of Barbering and Cosmetology, 2420 Del Paso Blvd., Sacramento, CA 95834. You may obtain application forms at the DCA Web site at www.dca.ca.gov. All licensed cosmetologists, including estheticians, must perform their services in a facility with a permit.

8. Why can’t I use a medical assistant instead of a nurse?

Medical assistants are not licensed professionals. While doctors have become accustomed to their assistance in medical office practices, they are not required to have any degree, nor do they have to pass an examination or be licensed. For that reason, the law only allows them to perform technical supportive services as described in sections 2069-2071 of the Business and Professions Code, and Title 16, California Code of Regulations, sections 1366-1366.4.

It’s clear that with Boards coordinating investigatory information and enforcement efforts, the most prudent investment by a venture is in sound legal advice before beginning operations.

It is much more cost-effective to receive legal advice from an experienced medical spa, anti-aging and weight loss, or integrative medicine lawyer when contemplating different business structures, than from a criminal defense attorney after a board has begun its sting operation.

Reaching out to an experienced health care attorney now is a smart move before opening a medical spa, integrative medicine clinic, or anti-aging, life extension, and longevity medicine center.

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Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

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