Medical Spas and The Danger of Delegating Laser Hair Removal to a Non-Medical Professional

By Mathew J. Levy, Esq./ [email protected]

Today, physicians and medical spas are offering laser hair removal (“LHR”) services.? However, authorizing non-medical professionals to perform aspects of these procedures could cost a physician his or her license and more.

In New York it is professional misconduct for a physician to permit, aid or abet an unlicensed person to perform activities requiring a license[i] or to delegate professional responsibilities to a person the licensee knows not to be qualified by training, experience, or licensure to perform such procedures. While non-medical professionals, such as cosmetologists and estheticians, may be qualified to remove hair utilizing certain cosmetic techniques, they are not qualified to perform LHR if performance of LHR is determined to constitute the practice of medicine.?

The conclusions reached by other states suggest that New York physicians may be delegating too much responsibility to non-medical professionals.? Many states have adopted the position that LHR is a medical procedure and can only be performed by a medical professional.

This concern is supported by a statement made by a representative of the state licensing authority and an analysis of the laws governing the practice of medicine.?

Accordingly, any physician thinking about whether to delegate LHR to a non-medical professional should, after determining the patient to be an appropriate candidate for LHR, examine the patient to determine whether there is any medical contraindication to treatment, such as acne, varicose veins, lesions, keloids, or tattoos affecting the area where the treatment will be performed.? The findings of this examination (positive and negative) should be appropriately documented.? If the existence of any condition requires professional medical judgment to be exercised in the actual performance of LHR, the procedure should be a medical one and should only be performed by a medical professional.?

Second, the physician should check the Federal Food and Drug Administration's (“FDA”) website to determine whether the laser being used for LHR is a “medical laser product.”? A medical laser product is any laser instrument, machine, or device, which is “intended to affect the structure or any function of the body” and is manufactured, designed, intended or promoted for the purpose of diagnosis, surgery, therapy or relative positioning of the human body. The FDA classifies all medical devices, including those used to perform LHR.? If the FDA classifies the devise to be a medical laser product, under New York law LHR using that device will be a medical procedure.

If medical judgment is needed in the performance of LHR or the FDA designates the device being used to perform the service to be a medical laser product, a non-medical professional should not be authorized to perform the procedure.? Instead, the physician should perform the procedure or delegate it to a qualified and appropriately supervised physician's assistant or a registered professional nurse.

In conclusion, physicians should either perform their own research or seek professional assistance, rather than rely on representations of the device’s manufacturer or a sales representative.? Since the physician's priority is to protect the health of his patients and the security of his professional license, it is best to assume LHR to be a medical procedure unless proven otherwise.? Absent further guidance from the State, it seems imprudent to delegate this responsibility to a non-medical professional.?????

About the Authors:

Mathew J. Levy is a Shareholder/Director of the Firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has extensive experience in, defending healthcare professionals in actions brought by State licensing authorities and Federal agencies.?Mr. Levy has successfully defended numerous healthcare providers in actions involving the US Attorney’s Office investigations, Medicare Fraud Waste and Abuse investigations, Medicaid Fraud Control Unit investigations, OPMC, OPD, Medicare, Medicaid as well as commercial insurance audits.?Mr. Levy has successfully structured and negotiated joint venture agreements, private equity transactions, venture capital transactions, stock purchase agreements, asset sale agreements, shareholders agreements, partnership agreements, employment contracts, managed care agreements and commercial leases. Mathew Levy can be reached at 516-926-3320 or [email protected]

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors' rights, and commercial real estate transactions.

This article contains general advice that is not designed to apply to the reader’s specific situation and does not constitute the formation of an attorney-client relationship.

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