Laser Treatment at the Medspa: The Rules on Physician Delegation and Oversight in Illinois
Ablative and non-ablative laser treatments for skin rejuvenation are some of the most common and popular services available at medical spas. Because these procedures are considered the practice of medicine in Illinois, only physicians have the legal authority to perform them. However, qualified non-physician personnel may provide laser treatment services, if delegated and supervised by a physician. If your medical spa offers or is thinking about offering these services, it’s important that you know who can do what.
Medical spas (or medspas) are increasingly popular destinations for consumers to undergo non-surgical cosmetic procedures. Some of the most common and sought-after procedures at medspas are laser treatments for skin rejuvenation. Typically, these procedures are categorized by ablative and non-ablative treatment. Ablative therapy involves the removal of the top layer of skin, while non-ablative therapy works to generate new collagen through heating of the underlying skin tissue without harming the surface.
In Illinois, medspa operators should be aware that both ablative and non-ablative laser treatments are considered the “practice of medicine.” This means that only a physician may perform these services. Subject to certain supervision and oversight rules, however, a physician affiliated with a medspa may delegate the authority to perform both ablative and non-ablative laser treatments to non-physician personnel. Having a staffing plan that complies with these rules is critical, as non-compliance could subject the medspa operator and its staff to criminal and civil penalties for illegally practicing medicine. (Learn more in our post: How to Open a Medical Spa if You’re Not a Physician)
Below are some key questions and general guidelines that medspa operators should consider regarding physician delegation and supervision of ablative and non-ablative laser treatments.
Must a physician have any special qualifications in order to delegate laser treatments to other medspa staff?
Yes. Physicians may delegate to others only those tasks or duties that are within the scope of the physician’s own practice, education, training, or experience. Thus, in order to delegate ablative and non-ablative laser treatments to other medspa staff, the physician himself or herself must be educated, trained, or experienced in ablative and non-ablative laser treatments.
To whom may a physician delegate laser treatments?
A physician may delegate both ablative and non-ablative laser treatments to licensed practical nurses (LPN), registered professional nurses (RN), and other individuals who are not licensed healthcare professionals. The medspa staff performing the delegated procedures must have received appropriate, documented training and education in the safe and effective use of the applicable system (ablative and/or non-ablative) utilized.
Must a physician conduct an in-person visit with a patient before delegating laser treatments to other medspa staff?
Yes. A physician must examine all patients and determine a course of treatment appropriate to each patient before other medspa staff may perform any delegated ablative or non-ablative laser treatment. This will begin the “patient-physician relationship,” which will allow the physician to then make the delegation. The physician assessment is required only at the initial exam, even if the patient’s treatment requires multiple sessions.
What are the physician supervision requirements for delegating laser treatments to other medspa staff?
If the laser treatment is ablative, the delegating physician must provide on-site supervision of the medspa staff. This does not require the physician to be directly in the treatment area, but he or she should ordinarily be physically located in the same office or building as the medspa staff performing the ablative procedure. As a general rule, the delegating physician should be on-site at all times while a patient is undergoing a delegated ablative procedure.
If the laser treatment is non-ablative, the delegating physician may, but is not required to, provide on-site supervision of the medspa staff. Alternatively, the medspa may ensure supervision by means of telephone, email, or other electronic communications. The delegating physician should expect to respond promptly to any question or complication that may occur.
Are there any laser procedures that a physician may not delegate?
Yes. A physician may not delegate any ablative or non-ablative procedure that can potentially disrupt the eye (cornea to retina).
Is the supervising physician legally liable for the acts of the medspa staff?
Potentially, yes. Any delegated ablative or non-ablative procedure that a medspa staff member performs is under the authority of the delegating physician’s authority and within the scope of the delegating physician’s patient-physician relationship. Essentially, the medspa staff member is acting as an “agent” of the delegating physician. That’s why medspas and supervising physicians should ensure appropriate insurance and indemnification arrangements are established between themselves and also that appropriate policies and procedures are in place to maintain adequate oversight by the supervising physician.
Do the above rules apply to advance practice nurses and physician assistants?
No. Advance practice nurses, such as nurse practitioners, and physician assistants are subject to different legal rules. In general, advance practice nurses and physician assistants may perform both ablative and non-ablative laser treatments – without any direct, on-site physician supervision – so long as such treatments are consistent with the advance practice nurse’s or physician assistant’s education, training, and experience.
However, medspa operators should note that certain advance practice nurses who have not yet reached designated continuing education or training and clinical experience hour thresholds, as well as physician assistants (on an ongoing basis), must maintain a written “collaboration agreement” with a physician. While the exact requirements for a collaboration agreement differ for advance practice nurses and physician assistants, at a minimum this agreement should specify those ablative and non-ablative laser treatments that the advance practice nurse or physician assistant is authorized to perform.
What laser treatments may an electrologist provide at a medspa?
Illinois law requires a license to perform electrology, which is defined as those services for permanent hair removal using only solid probe electrode type epilation, including thermolysis (shortwave, high frequency), electrolysis (galvanic), and a combination of both (superimposed or sequential blend). A licensed electrologist may perform these services without physician delegation or supervision. An electrologist also may perform other ablative and non-ablative laser treatments, subject to the physician delegation and supervision rules noted above. When providing such additional services, the electrologist is no longer acting as an electrologist but rather unlicensed personnel acting under authority of the delegating physician.
Call Jackson LLP Today to Schedule a Consultation with an Illinois Medical Spa Attorney
If you’re considering offering ablative and non-ablative laser treatments at a medical spa in Illinois, it’s important that you implement a staffing plan, policies, and personnel contracts that comply with the relevant regulations governing physician delegation and oversight. At Jackson LLP, we have experience preparing these documents and advising on the limits and boundaries of what licensed and unlicensed personnel can do in the medspa setting. To schedule a complimentary phone consultation with one of Jackson LLP’s Illinois-licensed healthcare attorneys, click the button below.