Laws and Regulations Governing Medical Spas
Due to the myriad of complex regulations which govern today’s medical aesthetic industry, it is vital for medical spa (“med spa”) owners, medical directors, and employees to remain informed about the particular laws and regulations affecting their practice. In particular, med spa professionals should be familiar with the laws which apply for practices that offer both medical with aesthetics services and monitor state regulatory agencies and state medical boards for any relevant rule changes. The medical spa is a relatively new development in the aesthetic industry, and offers clients traditional spa services (e.g., facials, waxing, massage, coiffure) alongside aesthetic medical procedures, such as laser hair removal, dermal fillers, and Botox injections.
Which aesthetic procedures constitute “the practice of medicine”?
As a general rule, a procedure is not considered to constitute “the practice of medicine” if it is “non-medical” and administered with a “non-prescriptive” device. Such procedures can be provided by non-healthcare professionals, such as aestheticians or cosmetologists, without the supervision of a licensed healthcare provider. If the procedure is “medical” or administered using a “prescriptive” device, however, it is considered to involve “the practice of medicine” and must be conducted under the supervision of a licensed healthcare provider. Given that many of the services provided at medical spas, such as the injection of Botox, dermal fillers, and laser hair removal, constitute “medical” services, they must be carried out by or under the direction and supervision of a licensed medical professional.
In order to avoid the unauthorized practice of medicine, med spa professionals must only provide those medical services for which they have the appropriate licensure and training, and which are within the “scope of practice” of their specialty. Additionally, non-medical providers must make sure that any medical procedures that they perform are performed under the “direction and supervision” of the appropriate licensed medical provider.
What is the “scope of practice”?
The scope of practice refers to the array of procedures and services which a professional can legally perform by virtue of the professional’s education, training, and licensure. It is essential to comply with the scope of practice rules because their violation can result in severe legal and professional consequences for the noncomplying professional and for the medical spa that is employing or contracting with the professional. These consequences include the loss or suspension of a professional license, the closure of the medical spa, civil liability, and even criminal charges. For these reasons, it is crucial to check with your profession’s state licensing board to ascertain which procedures you are and are not allowed to perform, and what supervision, if any, you require while performing them.
Must non-medical providers be supervised by licensed medical providers when performing permitted aesthetic medical procedures?
The level of supervision that a med spa professional requires depends upon the professional’s permitted scope of practice, as established by the professional licensing boards and by state statutes and regulations. As a rule of thumb, the greater the professional’s permitted scope of practice, the less supervision is required. For instance, an MD does not require supervision, can provide the greatest array of cosmetic medical procedures, and can prescribe and order regulated cosmetic products, such as Botox and fillers. A DDS (Doctor of Dental Surgery) or DMD (Doctor of Dental Medicine) has a similar but slightly more restrictive more restrictive scope of practice.[1] The scope of practice of a dentist, in turn, is generally greater than that of a Nurse Practitioner (NP), while the scope of practice of the NP is greater than that of the Physician Assistant (PA) or Registered Nurse (RN). Non-healthcare professionals, such as cosmetologists, barbers, or aestheticians, have the narrowest scope of practice and must be supervised (either virtually or in-person) by a licensed Doctor of Medicine (MD), a nurse practitioner (NP), or physician assistant (PA)[2] when providing medical procedures.
Rules governing nurse practitioners
Can a nurse practitioner own and operate a medical spa that offers both aesthetic and medical services?
The question of whether a licensed nurse practitioner can practice independently (i.e., without physician supervision or collaboration) depends upon the rules of the jurisdiction where the medical practice is located. Most states allow NPs to practice independently and to open their medical practice if they meet certain educational and training requirements.[3] Other states, however, always require NPs to be supervised by licensed physicians when providing medical services. In such jurisdictions, it is crucial for the NP to establish a collaboration or supervising relationship with a licensed physician and outline the details of the relationship in a practice agreement.[4]
Must nurse practitioners be supervised by licensed physicians when performing aesthetic medical procedures like Botox injections and dermal fillers?
The answer depends upon the rules of the jurisdiction in which the NP is engaging in practice. As a general rule, unless an NP satisfies specific training and experiential requirements, he or she has to work “in collaboration and consultation” with a licensed patient care team physician.[5] In Virginia, for example, every nurse practitioner,[6] other than a nurse practitioner licensed by the Boards of Medicine and Nursing as a certified nurse midwife or a certified registered nurse anesthetist or a nurse practitioner who satisfies the requirements of Va. Code § 54.1-2957(I),[7] must practice in collaboration and consultation with a patient care team physician.[8] Nurse practitioners who are permitted to practice without the “collaboration and consultation” of a licensed physician must still ensure that they: (a) only practice within the scope of their clinical and professional training and the limits of their knowledge and experience, (b) consult and collaborate with other health care providers based on the clinical conditions of the patient to whom health care is provided, and (c) establish a plan for referral of complex medical cases and emergencies to physicians or other appropriate health care providers.
Must the collaborating physician be on-site when the NP performs the dermal fillers or Botox injections?
Although some states require the collaborating physician to be physically present when the NP conducts medical procedures, other jurisdictions, such as Virginia, allow the collaboration and consultation to be conducted through telemedicine. See, e.g., Va. Code § 54.1-2957(C).
Can Nurse Practitioners Prescribe and Order Regulated Cosmetic Products, such as Botox® Cosmetic, Juvederm® products, Voluma® and Volbella®, Without the Involvement of a Collaborating Physician?
In Virginia, a NP can order and prescribe regulated cosmetic products (i.e., Schedule II-VI Controlled Substances) without a supervising physician only if the NP is permitted to practice without a virtual or written collaboration physician practice agreement, as outlined under Va. Code §54.1-2957(I).[9] If the NP cannot practice without such a practice agreement, the NP can only order and prescribe Schedule II-VI substances if authorized under the practice agreement with the collaborating physician.[10]
The following jurisdictions allow a NP to prescribe and inject Botox without the involvement of a collaborating physician:
Arizona, Arkansas, DC, Iowa, Maine, Montana, New Hampshire, New Mexico, Utah, Washington, Wisconsin, and Wyoming.
The following jurisdictions allow NPs to order regulated cosmetic products without the involvement of a collaborating physician:
Alaska, Arizona, Colorado, Connecticut, Hawaii, Idaho, Iowa, Kentucky, Maine, Maryland, Minnesota, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oregon, Rhode Island, Utah, Vermont, Washington, Wisconsin, and Wyoming.
Rules governing aestheticians
Each state has a regulatory board that licenses, monitors, and governs the conduct of cosmetologists and aestheticians. The scope of practice of an aesthetician, along with advanced aesthetician distinction, differs with each jurisdiction, and may permit aestheticians to perform some or all of the following procedures:
Micro-needling
Microdermabrasion
Dermaplaning
Cosmetic laser skin rejuvenation
Non-Laser hair removal
laser hair removal (with supervision from a licensed medical provider)Chemical peels
Injectables and fillers (with supervision from a licensed medical provider)
The Virginia Board for Barbers and Cosmetology licenses and regulates the master aesthetics profession in the Commonwealth of Virginia. Virginia defines “aesthetician,” as an individual who is licensed to practice aesthetics and who administers cosmetic treatments to enhance or improve the appearance of the skin.
In Virginia, aestheticians are permitted to perform the following procedures:
Cleansing, toning, effleurage, or other related movements;
Stimulating, exfoliating, or performing any other similar procedure on the skin of the human body or scalp by means of cosmetic preparations, treatments, or any non-laser device, whether by electrical, mechanical, or manual means, for care of the skin;
Applying make-up or eyelashes to any person, tinting or perming eyelashes and eyebrows, and lightening hair on the body except the scalp; and
Removing unwanted hair from the body of any person by the use of any non-laser device, by tweezing, or by use of chemical or mechanical means.
See Va. Code Ann. § 54.1-700; 18 Va. Admin. Code § 41-70-20 et seq. (2020).
In Virginia, aestheticians who obtain advanced education and training can be licensed as “master aestheticians,” and be permitted to offer more advanced aesthetic services, including lymphatic drainage, chemical exfoliation,[11] and microdermabrasion of the epidermis.[12]
Can an aesthetician own and/or operate a medical spa that offers both aesthetic and medical services?
The answer depends upon the statutes and regulations of the state in which the med spa is situated. In Virginia, for example, it is unlawful for persons (such as aestheticians) to “engage” in the practice of medicine “without holding a valid license as required by statute or regulation.” Va. Code §§ 54.1-2929 (emphasis added). As such, it is illegal for non-medical professionals, such as aestheticians, to conduct medical services like Botox, fillers, or laser hair removal, unless the non-medical professional: (a) achieved the requisite education and training to perform the medical procedure; (b) performs the medical procedure under the “direction and supervision” of a medical professional who is licensed and trained to perform the medical procedure; and (c) does not exceed the non-medical professional’s permitted scope of practice when performing the medical procedure.
Similarly, in Virginia, a business entity cannot practice a licensed profession, such as the practice of medicine, without holding a valid license, as required by statute or regulation. Va. Code. §§ 54.1-111(A)(1) and 54.1-2902. Therefore, a non-medical business cannot technically engage in the practice of medicine, including aesthetic procedures like Botox, fillers, and laser hair removal. However, a non-medical business can employ or contract with an individual licensed by a healthcare regulatory board to render or provide medical professional services through that licensed individual.[13] In this situation, the non-medical business does not engage in the practice of medicine directly but employs or contracts with a licensed medical professional to provide medical services on the business’s behalf. As such, a med spa which is not owned by licensed medical providers can indirectly render medical services through a licensed medical employee or independent contractor.
Can an aesthetician refer to him or herself as a “medical aesthetician”?
It is unlawful for an aesthetician to refer to him or herself as a “medical aesthetician” because this term implies that the aesthetician engages in the practice of medicine.[14] This restriction applies even if the aesthetician practices in a medical spa and performs medical cosmetic procedures (such as laser hair removal, Botox, or fillers) under the direction and supervision of a licensed healthcare provider.
Can aestheticians provide laser hair removal procedures? If so, must they be supervised by a licensed medical provider, and must the medical provider be on-site while the aesthetician performs the laser hair removal procedure?
The answer to whether aestheticians can provide laser hair removal, and the extent to which they must be supervised by a healthcare professional, varies from state to state.[15] In Virginia, an aesthetician can provide laser hair removal if he or she satisfies the training requirements outlined in 18 Va. Admin. Code § 85-20-91(A)[16] and performs the laser hair removal procedure under the direction and supervision of a Doctor of Medicine, a Doctor of Osteopathic Medicine,[17] a nurse practitioner,[18] or a physician assistant[19] who has been: (a) trained in laser hair removal, as outlined in 18 Va. Admin. Code § 85-20-91(A), or (b) performing laser hair removal before August 7, 2019.[20][21]
In addition, the aesthetician who satisfies the training requirements outlined in 18 Va. Admin. Code § 85-20-91(A) can perform the laser hair removal outside of the supervising physician or nurse practitioner’s physical presence. In other words, the supervising medical provider does not have to be physically on-site when the aesthetician performs the laser hair removal. However, the physician or NP must be “readily available” at the time that the procedure is being performed.[22] In addition, the supervising physician or nurse practitioner must be available to “see and evaluate” a patient who developed complications as a result of the laser hair removal before the laser treatment can be continued.[23]
Before providing the laser hair removal procedure, the aesthetician must obtain the supervising physician or NP’s approval regarding proposed treatment plans, and products, and treatment modalities. In addition, the supervising healthcare provider must conduct an initial medical assessment[24] of each patient before the aesthetician can provide any medical cosmetic services, such as laser hair removal, Botox, or fillers. Finally, the supervising healthcare provider must review each patient’s medical charts regularly and adjust treatment plans and prescriptions as necessary.
[1] Provided that the microdermabrasion is conducted using products other than the controlled substances outlined in Controlled Substances Schedules II-VI.
[2] Va. Code § 54.1-700.
[3] See Va. Code §§ 54.1-111(F) (“Unlawful Acts; Prosecution; Proceedings in Equity; Civil Penalty”)[3] and 13.1-542.1 (“Practice of certain professions by corporations”) and 13.1-1101.1(“Practice of certain professions by LLCs”).
[4] Va. Code § 54.1-700.
[5] In Florida, for example, electrologists can provide laser hair removal if they are directly or virtually supervised (via telehealth) by a licensed physician located within 150 miles of the electrologist. See Fla. Code Ann. § 65B8-56.002 (2021).
[6] In order to be certified to perform laser hair removal, the master aesthetician must have performed laser hair removal procedures on a minimum of ten (10) proctored patient cases and demonstrated competency in treating various skin types. In addition, the master aesthetician must be trained in all of the following: 1. Skin physiology and histology; 2. Skin type and appropriate patient selection; 3. Laser safety; 4. Operation of the laser device to be used; and 5. Recognition of potential complications and response to any actual complication resulting from a laser hair removal treatment. See 18 Va. Admin. Code §§ 85-20-91(A); 90-30-124(A); 85-50-191(A).
[7] “Doctor of Osteopathic Medicine” means a physician who prevents, diagnoses, and treats human physical or mental ailments, conditions, diseases, pain, or infirmities by any means or method. Va. Code § 54.1-2900 (2021).
[8] "Nurse practitioner" means an advanced practice registered nurse who is jointly licensed by the Boards of Medicine and Nursing pursuant to § 54.1-2957. Va. Code § 54.1-2900.
[9] "Physician assistant" means a health care professional who has met the requirements of the Board for licensure as a physician assistant. Va. Code § 54.1-2900.
[10] If the aesthetician performs the laser hair removal under the direction and supervision of a PA, the PA must have entered into a collaboration with a board-certified physician, and this collaboration must be memorialized by a practice agreement. Va. Code § 54.1-2952. The collaborating physician must be available, at all times, to consult with the PA regarding the services which are being provided. Va. Code § 54.1-2952. If the aesthetician performs the laser hair removal under the direction and supervision of an NP, the NP must have entered into a collaboration with a board-certified physician, memorialized by a practice agreement, unless the NP satisfies the requirements outlined in Va. Code § 54.1-2957(I) and 18 Va. Admin. Code § 90-30-86. See 18 Va. Admin. Code § 90-30-120. Neither the supervising PA nor NP can practice or delegate matters which are beyond the scope of his or her permitted practice, clinical and professional training, and knowledge and experience. See Va. Code §§ 54.1-2952 and 2957; 18 Va. Admin. Code § 90-30-86.
[11] 18 Va. Admin. Code §§ 85-20-91; 90-30-124; 85-50-191.
[12] 18 Va. Admin. Code §§ 85-20-91(E); 90-30-124(E); 85-50-191(E).
[13] 18 Va. Admin. Code §§ 85-20-91(E); 90-30-124(E); 85-50-191(E).
[14] The initial medical assessment must be conducted by a physician, PA, or NP and the treatment plan must be created by the licensed physician or by an NP who satisfies the requirements outlined in Va. Code § 54.1-2957(I) and 18 Va. Admin. Code § 90-30-86. The initial examination must occur before prescribing or injecting the patient with a controlled substance, such as botulinum toxin type A or fillers.
[15] For example, while an MD can prescribe and inject Botulism Type A throughout a patient’s body, a dentist is limited to prescribing and injecting Botulism Type A in the patient’s face and neck.
[16] For a description of duties that can be delegated to a PA by a supervising physician, see Va. Code § 54.1-2952.
[17] An NP who provides lasers and injections must have the specific training requirements for providing these treatments, as outlined by the state Boards of Medicine and Boards of Nursing.
[18] Practice agreements shall include provisions for (i) periodic review of health records, which may include visits to the site where health care is delivered, in the manner and at the frequency determined by the nurse practitioner and the patient care team physician, and (ii) input from appropriate health care providers in complex clinical cases and patient emergencies and for referrals. Evidence of a practice agreement shall be maintained by a nurse practitioner and provided to the Boards upon request. See Va. Code § 54.1-2957(D). The NP does not have to obtain the Board of Nursing’s approval of the prescriptive authority practice agreement memorializing this collaboration, nor provide the Board with a copy of the Practice Agreement. The NP should always maintain a copy of the practice agreement at his/her practice.
[19] "Patient care team" means a multidisciplinary team of health care providers actively functioning as a unit with the management and leadership of one or more patient care team physicians for the purpose of providing and delivering health care to a patient or group of patients. Va. Code § 54.1-2900.
[20] "Nurse practitioner" means an advanced practice registered nurse who is jointly licensed by the Boards of Medicine and Nursing pursuant to § 54.1-2957. Va. Code § 54.1-2900.
[21] Va. Code § 54.1-2957(I) states:
A nurse practitioner, other than a nurse practitioner licensed by the Boards of Medicine and Nursing in the category of certified nurse midwife, certified registered nurse anesthetist, or clinical nurse specialist, who has completed the equivalent of at least two years of full-time clinical experience as a licensed nurse practitioner, as determined by the Boards, may practice in the practice category in which he is certified and licensed without a written or electronic practice agreement upon receipt by the nurse practitioner of an attestation from the patient care team physician stating (i) that the patient care team physician has served as a patient care team physician on a patient care team with the nurse practitioner pursuant to a practice agreement meeting the requirements of this section and § 54.1-2957.01; (ii) that while a party to such practice agreement, the patient care team physician routinely practiced with a patient population and in a practice area included within the category for which the nurse practitioner was certified and licensed; and (iii) the period of time for which the patient care team physician practiced with the nurse practitioner under such a practice agreement. A copy of such attestation shall be submitted to the Boards together with a fee established by the Boards of Medicine and Nursing.
[22] See Va. Code § 54.1-2957(c).
[23] Va. Code §54.1-2957.01.
[24] Id.
