Are You Qualified?
What You Need to Know About the Legal Limitations of Esthetic Practice
By Nancy King
Originally published in ASCP's Skin Deep, February/March 2006. Copyright 2006. Associated Skin Care Professionals. All rights reserved.
Medical spas are hot. Popping up across the country, these spas are offering services such as microdermabrasion, laser treatments, chemical peels, detoxification programs, and even surgical therapies. With the education and medical-grade esthetics equipment available to do so, the potential for profit is there -- along with the potential for ruin should skin care professionals not strictly abide by all of the rules and regulations that govern the use of such equipment.
With esthetic practices becoming more advanced, these services are falling under the jurisdiction of two separate state boards -- cosmetology and medicine. Skin care professionals need to be aware of all boards that govern their profession. Otherwise, estheticians may find themselves holding the bag -- or worse, holding the checkbook. Take, for example, the story of one skin care professional who very nearly lost everything.
An Ohio court recently found an esthetician liable for damages incurred during a facial peel, even though she was working under a doctor's supervision. The client had previously received the peel from the doctor without any problems. While the doctor had instructed the esthetician to not perform the treatment, the esthetician reasoned it would be fine to provide the peel since the client hadn't suffered any negative reactions the first time around. Unfortunately, the client was injured, and the lawsuit resulted in a $500,000 judgment against the esthetician.
Beyond the Scope
Know the boundaries. There were several factors that lent to the judgment. For one, the jury felt the esthetician was responsible for the damages because she was working outside the scope of her esthetics license, and she knew it. But even if she hadn't realized she was stepping outside her boundaries, she still would've been liable. In the legal world, it's not just what you know, it's also what you're supposed to know. By holding a license, you are responsible for knowing all applicable laws, rules, regulations, and restrictions, even if you have never seen or read them. It's part of being a licensed professional. Consequently, it is imperative to stay updated on state laws regarding scope of practice and new modalities as well as the Medical Practice Act. And when confused about an issue, contact the relevant state board(s) directly.
Making medical decisions. Doctors are qualified to make medical decisions; estheticians are not. If a process or procedure requires a medical decision, it falls under the practice of medicine and is beyond the qualifications of an esthetician. While this may sound straightforward, in most states the practice of medicine is defined broadly as "suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person."
In the world of advanced esthetics, medical decisions could include deciding what percentage of peel to use or which product will treat a certain skin condition. While it's tempting for an esthetician to make these decisions based on experience and education, a doctor should evaluate the skin, decide the course of treatment, and provide specific instructions about any procedures beyond the basics.
Working under a doctor's supervision. Before working with a doctor to perform advanced techniques, an esthetician should check the medical board's requirements for delegation and supervision. In all states, physicians are allowed to delegate a variety of medical procedures.
Most states have certain requirements regarding delegation and supervision included in their rules. Delegation rules specify which treatments doctors can let unlicensed persons perform by themselves. Supervision rules apply after the task is delegated and specifies the level of doctor supervision required to ensure the procedure is performed properly and safely.
Delegation and supervision requirements vary from state to state. Some states specifically prohibit the delegation of certain tasks, such as initial reviews, treatment plans, and prescriptions. Delegation rules usually require that the doctor have some expertise in the treatment being delegated. For instance, an obstetrician cannot assume responsibility for supervising dermaplaning or microdermabrasion, because those procedures are typically not part of obstetrics.
Supervision also varies. In some states, the doctor must be on-site. In others, the doctor must be within a certain mile radius from the clinic where the delegated tasks are performed.
Ignoring these rules, or even getting lax with them, can incur penalties such as civil fines, suspension or revocation of your esthetician license, criminal charges, and enjoinder from the practice of medicine. Worse yet, the doctrine of implied liability comes into play. This means simply that, because you went beyond your scope without proper delegation and supervision, you are liable for any and all improper medical and esthetic treatments you provided. It's these situations that create $500,000 judgments against estheticians.
The use of medical devices by estheticians can be confusing, particularly with the number of advanced units currently available on the market -- an issue many state boards are grappling with.
Currently, the U.S. Food and Drug Administration (FDA) medical guidelines prohibit certain medical devices from being used for beautification purposes. The FDA is responsible for regulating drugs, medical devices, and cosmetics. Each division with the FDA has specific definitions for the products and equipment it regulates. Drugs and medical devices affect the structure and function of the body and can be used only by a doctor's prescription or state authorization. Cosmetics are used to beautify the skin's or one's appearance. Some esthetics machines are designed to affect the human body, and many of those units are considered medical devices.
The FDA separates medical devices into four classes: Class I-IV. A Class I device is considered noninvasive and unlikely to cause harm if properly used. Typical esthetic machines falling under this category include microdermabrasion, LED light, and electrolysis. Class II devices are invasive and include laser treatment units, injectable Botox and collagen, and intense pulse light therapy. Class III and IV devices are considered medical and placed on or within the body, such as heart monitors, and are far beyond the esthetics world.
State boards can authorize estheticians to use any Class I device, but a Class II device will always require a doctor's prescription. While some states allow estheticians to use any Class I device, other states require review and approval of each Class I device before it can be used. Consult with your state cosmetology board to see if there are any restrictions on Class I devices.
Use of Class II devices falls under the delegation and supervision requirements in each state's Medical Practice Act. To use a Class II device, an esthetician must work with a supervising physician who delegates the procedure to the esthetician and provides the proper supervision, as established by state law.
Before you buy equipment, check with your state board. In this arena, estheticians should not take a manufacturer's or distributor's word that a device is within your scope of practice.
In some states, merely having such equipment in the salon is evidence of use and could be grounds for an investigation.
Unfortunately, Class II devices are not well regulated, and state boards do not have jurisdiction over them. The FDA is solely responsible for the oversight of cosmetic products and devices; however, due to lack of resources and an overwhelming supply, the agency isn't always able to prevent the sale of improper devices to estheticians.
Buyer beware. In Ohio, an esthetician spent $14,000 for a dermaplaning device, which is considered a Class II medical device and not appropriate for independent use by an esthetician. Granted, it's not $500,000 down the drain, but $14,000 is still a substantial amount of money for a machine you can't use. Estheticians should do their research first, before laying any money on the table.
It's Up To You
The bottom line is, every esthetician is solely responsible for her actions in her skin care practice. Know the boundaries between beautifying skin and medical practice, and stay updated on your cosmetology and medical rules. While it's always important to have a solid liability insurance policy in place, do what you can to ensure you never have to use it.
Nancy King is executive director of the Foundation for Safety in Cosmetology and director of education for Nailpro magazine. For more information, visit www.pedicureprotection.com.
Originally printed in DAYSPA, July 2005.