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Medical Spas: Greater Enforcement Actions on the Horizon?

The cosmetic services industry is booming. While these businesses can be lucrative, they are full of hidden perils for licensed professionals.

Today’s Medical Spas are, as the name suggests, engaged in the practice of medicine, and are governed by the same laws that regulate “medically necessary” prescriptions and procedures.

A physician or nurse practitioner considering serving as a Medical Director for a Medical Spa should think carefully about the risks versus the rewards.

As a preliminary matter, persons who serve as Medical Directors for Medical Spas must be competent to do so. By way of example, although Arizona is an independent practice state for Nurse Practitioners, it does not necessarily follow that every Nurse Practitioner is competent to serve as a Medical Director for a Medical Spa.

Another threshold consideration is whether your professional liability coverage excludes your activities as a Medical Director and/or offers adequate protection.

Be wary of any arrangement that is tantamount to renting out your prescribing credentials for a fee. Serving as a Medical Director comes with significant responsibilities and potential liabilities. For example, the Medical Director is responsible for supervising lower licensed or unlicensed providers, or ensuring there is appropriate supervision of such physician extenders. Medical Directors are also responsible for ensuring that the Medical Spa facility operates with appropriate policies and procedures. As with all prescription drugs, devices, and procedures, patients must also be appropriately screened, there must be a patient medical record, and patients must give valid informed consent. Although patient-specific orders may not always be required, standing orders that require or allow nurses to make medical decisions are not compliant with the law. Vigilance is also needed with the drugs and devices in use. Are they well sourced? Being used off-label? Illegally compounded?

Professionals who provide services at Medical Spas outside the scope of their license or in a manner that does not comport with the risk losing their professional license. They also risk personal liability under a host of different legal theories.

There is a trend toward more regulation of the beauty industry at the federal level as evidenced by legislation like the Modernization of Cosmetics Regulation Act signed into law in late December 2022. Now that the pandemic is over, we anticipate that Medical Spas and IV hydration clinics will be targeted for increased enforcement action at the state level over the next few years.

If you own a Medical Spa or an IV hydration business, or serve as a Medical Director for one, and would like some help assessing your legal risk and/or improving your legal compliance, give Boesen & Snow Law a call at (602) 900-8562.

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