CAMLAW: Complementary and Alternative Medicine Law Blog : Complementary, Alternative, & Integrative Medicine Law, Regulation, Ethics & Policy (Alternative and Complementary Medicine, Medical Spa Information, Holistic Health Attorney, and Legal Resources)

Some spas opt to have medical directors off-site and on the books in name only, thus providing a panoply of inexpensive therapies through various providers.

Is this legal? It depends.

Health care providers can only offer spa services within their designated scope of practice. If they go beyond their scope of practice, they could be guilty of practicing medicine without a license, a felony in many states and a criminal misdemeanor in others.

The spa itself and its owners could then be guilty of aiding and abetting the unlicensed practice of medicine -- also a crime.

In addition to examining the statutory provisions that define what a given health provider (for example, the nurse on staff) can or can't do, the question is whether a particular therapy is considered to fall within the practice of medicine. Many dermatological therapies do, and some can only be offered by an MD, or by another provider (such as a registered nurse, licensed practical nurse, or a parademic) under physician supervision.

A client recently called asking whether in her state, the physician had to be on site directly supervising such a provider for laser therapy. A bit of legal research revealed the answer. Interestingly, the state statute defined electrology as "the permanent removal of superfluous hair by electrical or other methods approved by the Commissioner of Public Health." But laser hair removal is not the same as electrology.

It took a phone call to the state Medical Board to find a ruling by the board -- not searchable through the usual legal databases -- deciding that the use of lasers for hair removal is within the scope of medical practice. According to this ruling, "A licensed physician with appropripate knowledge, experience, and training should assess each patient prior to and during the course of hair removal treatment with laser therapy." Such physician would be permitted to "delegate the operation of the laser for hair removal" to a registered nurse, licensed practical nurse, or a parademic, but only "under the supervision, control and responsibility of a licensed physician." This means that the physicial must provide "direct on-site supervision in the course of hair removal treatment with laser therapy."

The ruling emphasizes the fact that laser therapy is "an evolving technology" whose "results vary" and can result in serious risks. It certainly sounds like in this state the physician must be physically present in the office during the treatment and not a phone call away. To ignore the ruling would be to risk liability, and to lead oneself open for a negligence claim that even liability insurance for medical spas might not cover.