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Legal climate change: More complexity, more hurdles as regulations heat things up

Article-Legal climate change: More complexity, more hurdles as regulations heat things up

Key iconKey Points

  • Many regulators and medical boards are unable to keep up with the pace at which medspas are proliferating
  • From developing staff requirement plans to approaching state medical boards, experts provide guidance on how to tread these legal waters

The medical spa business is brisk, not just among cosmetic surgeons and dermatologists, but among many an ambitious layperson eager to get a chunk of the $2 billion Americans spend on skin care each year. Problem is, medspas are proliferating so quickly that many regulators and medical boards are struggling to keep up, and some state legislatures are attempting to fill the breach with a patchwork of nascent laws the provisions of which remain to be clarified — and, likely, appealed. If you're a cosmetic surgeon considering opening a medspa, or have an interest in one, the following may help you run a tighter ship, liability wise.

Ms. Chang
NATIONAL TREND As physicians explore alternate means to enhance their bottom lines, many continue to turn to medical spas. Though medspa margins are not as high as traditional surgical cosmetic procedures (some practitioners even confess them as loss leaders), overheads are relatively low particularly when co-located or internal to an existing practice, technology has yielded wider service offerings in recent years, and pampering-seeking patients love them! Some savvy cosmetic surgeons also note the continuum of care that such facilities make possible, expanding their patients' exposure to their practice, and raising their awareness of further cosmetic options. However, because regulation has been scarce, the industry has also attracted nonmedical entrepreneurs looking to turn a quick buck, some with dubious ethics.

Media notoriety about incidents of patients put at risk, coupled with some high-profile bankruptcies and professional society lobbying have prompted state lawmakers in Florida, California, Mississippi, Washington, Kentucky, New York, Massachusetts, Indiana, Pennsylvania and New Jersey to either pass laws regulating the medical spa industry or considering doing so. Florida and California have led the way, with Florida last year passing a law severely limiting who could buy and use medical lasers and California enacting similar regulations. In April, the Sacramento legislature proposed a law that would essentially make nonphysician-owned medical spas illegal.

While many of the statutes are laudable attempts to ensure patient safety, many contain vague and even confusing language that observers in the industry believe will be subject to court challenges. In some instances, even state medical boards are baffled.

"The medical boards are not quite sure how to deal with the medspa phenomenon," acknowledges Hannelore Leavy, founder and executive director of both the International Medical Spa Association and the Day Spa Association. "Depending on who you talk to in each state, you may get a different answer. Even people on the same board will give you a different answer." The International Medical Spa Association is attempting to help its members navigate this legal course by offering a CD compendium of the legal, licensing and regulatory rules governing medical spas in all fifty states.

SERVICES & STAFFING The first step in staying trouble free, experts tell Cosmetic Surgery Times , is to have a clear definition of what services you plan to provide. In the view of some, the most profitable medspa business model has most procedures delegated to medically trained (nonphysician) staff — so-called "physician extenders." Typically, this means some combination of estheticians, LPNs (licensed practical nurses), nurses, nurse practitioners or physician assistants. "I would just write out a whole list of services you want to provide," says Donna L. Chang, R.N., B.S.N., who chairs the government relations committee of the Society of Plastic Surgery Skin Care Specialists. "Then you'll know who you need to hire."

Each state differs, but if your medspa plans to run the gamut from fillers and injectables, to heavy chemical peels, laser hair removal and cellulite and vein treatments, a physician assistant will probably need to be on site at all times. On the opposite end of the spectrum, if facials and light chemical peels are the upper limit, an esthetician will likely do, in Ms. Chang's opinion.

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