Fake or Real: Medical Estheticians Can Be Delegated Treatments in a Med Spa

August 30, 2023

Medical spas have been breaking the mold of the traditional medical practice model. The combination of day spa and medical service has created a new industry overseen by multiple regulatory authorities. In this episode, series regular Jay Reyero joins us to share the true significance of the title “medical esthetician.” We address whether medical estheticians can be delegated procedures like Botox treatments within a med spa setting. We discuss regulatory considerations, including scope of practice, supervision and delegation, and the discrepancies between the licensing requirements and the title “medical esthetician.”

Listen to the full episode using the player below, or by visiting one of the links below. If you have any questions or would like to learn more, email us at info@byrdadatto.com.


Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.

Brad: Welcome back to another episode of the Legal 123s with ByrdAdatto. I’m your host, Brad Adatto with my co-host Michael Byrd.

Michael: As a business and healthcare law firm, we meet a lot of interesting people and learn their amazing stories. Our clients commonly come to us with the latest word on the street that they heard from a friend. This season we’ll talk about stories with a common legal urban legend and seek to either prove or disprove the legend. This season’s theme is Fake or Real.

Brad: Awesome, Michael. Now Michael, I know you and our partner Jay Reyero. Love to go to Colorado a lot, why do you like to visit it?

Michael: I mean, it’s kind of a stupid question, Brad, it’s going to be 109 degrees where we live today, in Colorado it’s not going to be 109 degrees today. [00:01:00] I mean, it’s beautiful. It’s, A, to be outdoors. I like to ski and the summer has its own, you know, getting out there just to be in the fresh air. It’s pretty amazing. Well, since you mentioned Jay, we’re glad to have him on again this time, so we welcome back our partner, Jay.

Jay: Thanks for having me. Love being here.

Brad: Jay, so glad you’re back on our show, but same question that I asked Michael. Why do you like to visit Colorado?

Jay: Well, besides the fact that I get to actually move all day and hike and be outdoors, I also like to run. And so when I get out in the morning to run, it’s normally 40 degrees as opposed to 85 degrees when I get up here and it’s still dark outside. So again, to Michael’s point, I don’t, I don’t like having my face melted off.

Brad: Oh, okay. No, Indiana Jones moments. Well, actually, I’ll be visiting Colorado in a few weeks. I’m actually going fly fishing for the very first time. I know. Have either one of you ever gone fly fishing and if so, do you have any pointers?

Jay: Yes, I went a couple of years ago, I would say buy [waiters02:06]. No matter how many times you plan on going fly fishing, this could be your only time to do it. When I went a couple years ago, I wore really thin short running shorts and regular tennis shoes. And within the first five minutes, the guide had me crossing a stream that was upper thigh deep. The water was 40 to 50 degrees. I mean, I stepped into that thing and I couldn’t feel my legs. I mean, it was down to the bone pain. So no matter what, even if it’s the only time you’re ever going to go, buy waiters [02:06].

Brad: Okay. And so if it’s up to your waist, it’s probably up to my eyeballs, so I probably need scuba gear.

Michael: Yes. Yes. And it’s way harder than it looks, Brad. This is not a river runs through it where you’re going to be like just dropping that fly right in front of the fish. No.

Brad: It’s so Brad Pitt and I won’t be kind of standing next to each other, other

Michael: Than your looks. Okay. yeah, it’ll be different. And the problem is, [00:03:00] this is not just that it’s hard, it’s just that you’ll be spending a lot of time cleaning up a mess that you create from doing it. So my recommendation is there is a place in the same parking lot as your favorite watering hole and it’s called Orvis. And they do Saturday mornings you’ll see all the people about to go to Colorado getting fly fishing lessons, you should do it

Brad: I’m in. Well, Michael, do you think while I’m fly fishing, I might see Bigfoot?

Michael: Well, that took a turn, Brad. I guess if you partook in some of the other things that Colorado has to offer, you might.

Brad: Okay, well what about Sasquatch?

Michael: Oh man, I’m just going to roll with it. I mean, yes. Maybe on a beef jerky commercial or something like that.

Jay: Yeah, I think at this point Brad’s feels like he’s back in his childhood dream when he is walking through the supermarket, checking out all the tabloids and seeing the Bigfoot stories and the Sasquatch stories.

Michael: Yeah. You mean last week?

Brad: Fair. Well, I don’t know what to believe anymore, and I don’t know about you guys, but you turn on the TV or you read the paper and it’s not the tabloid news, or maybe it is a tabloid news, but it’s coming to life in a regular paper in the regular stuff. We have Congress holding hearings on UFOs. I mean, Michael or Jay, have any of y’all, like, do I feel like I’m going back to the eighties movies here? Have y’all seen this stuff?

Michael: Well, your brain lives in the eighties movies. So first, so let’s get that out of the way. I was not aware of the UFQ news story, but it does not surprise me because there is, you know, someone running for president who’s been indicted and every other thing is something that’s different than you hear about.

Brad: Okay. Yeah.

Jay: I mean, isn’t this the one that they found flying around Uranus?

Michael: Oh, you just know your audience so well.

Jay: That for my kids, they always groan and rolled their eyes.

Brad: [00:05:00] Oh man. You’ve been holding that one in your back pocket for years. Okay, so my Bigfoot question again, I don’t think it’s that strange all sudden, so if I do see Bigfoot, what should I do?

Michael: You need to be able to run faster than the guys that you’re with, Brad.

Jay: Oh, Michael, I’m pretty sure that’s about bears, maybe even dinosaurs back in your time, but pretty sure that’s bears, not you.

Michael: Well, I guess then I’ll edit my response. And since it probably means that you ate one of Colorado special mushrooms or gummies, then you just need to go find a safe space and take a nap. But I think we need to get today’s stories. We’re all over the place, and so today our topic and our mission is to answer the question, fake or real “medical aestheticians can be delegated treatments in a med spa.”

Brad: Oh, all right. Well, this is exciting. Well, Jay, today you get to lead on the story on the fake or real story. So let’s get started. [00:06:00]

Jay: All right, sounds good. So, our main character, today’s story is going to be Mr. Bigfoot.

Michael: Again, you know your audience, Jay.

Jay: Well, Mr. Bigfoot had recently acquired a med spa here in Texas, and it was specializing in injectables, and it was profitable, but it had way more potential. And so Mr. Bigfoot found this as a good investment opportunity, lots of room to grow and scale.

Brad: Okay. Was Mr. Bigfoot a physician?

Jay: Nope. He was an entrepreneur and this was his first foray in aesthetics. He had some limited experience in healthcare enough to kind of know that he needed an MSO, which he did have. So when he acquired the business, the medical director, let’s call her, Miss Nessie, stayed on, as did most of the providers and the non-clinical staff. So at the end of the day, fairly smooth acquisition.

Brad: All right. First off, Michael, I have to jump in here first. I love how Jay is committed now. First, we have Bigfoot, now we [00:07:00] have Nessie, the Lochness monster. Great touch. Second, it sounds like we didn’t work with Mr. Bigfoot here on the acquisition and operations. What really happened here? Why did he call us? What help did he need?

Jay: Yeah, so about a month after closing the deal, Miss Nessie got a letter from the Texas Medical Board that had notified her, “Hey, there’s been a complaint filed against you.”

Michael: Yeah. And let’s kind of dispel a little bit about medical board letters and how do these even happen in general? And there probably is this fear that’s out there that the medical board police come charging through your doors and put you in handcuffs.

Brad: They don’t do that?

Michael: No. Except in California. But generally, even in California, everywhere, what we always talk about is that a medical board complaint is very traced back to something very personal to the business. We know, first and foremost, that medical board complaints are filed by angry people. So someone’s mad at something about the business, and the people that are mad. It really comes down to, it’s either a patient, a former or current employee, or a competitor.

Jay: Yeah. Well, so in this case, you know, as with medical board complaints, you don’t generally know who filed it, but we kind of had an idea. So it wasn’t disclosed in the notice, but during the acquisition, there was a disgruntled employee who, let’s call her Ms. Banshee. And Ms. Banshee was not happy with the sale, was not happy with this transition, and didn’t want to stay on and on her way out, she did definitely make it known that she had no problems causing trouble for the business after this.

Brad: I definitely think we need to get Jay to be a permanent guest because he’s killing it today. Yes, I love that Banshee, for our audience members who don’t know, it’s a reference to a folklore [00:09:00] of a female creature that screams whales shrieks when there’s a death in the family. And I guess she really didn’t want the businesses sell, so maybe she was shrieking a little bit. So, what was Business Banshee’s specific complaint?

Jay: Yeah, so the complaint at the end of the day was an allegation of unprofessional conduct, which is kind of the standard catchall for the Texas Medical Board complaints. And the category here was specifically delegating medical acts to a person not qualified by training, experience or license to perform whatever they were performing. Mm. And specifically, it was alleged that Ms. Nessie was delegating the performance of Botox to medical estheticians.

Michael: Alright. Okay. Well that sounds like it had some stickiness to it. How did you approach it?

Jay: Yeah, so first we had to understand kind of the exact nature of the clinical operations of this med spa. And so we had a call with Mr. Bigfoot to just [00:10:00] ask some basic questions to learn how were they operating. And when I spoke with Mr. Bigfoot, he had no concerns.

Michael: Why not?

Jay: So his reasoning was because this med spa had been operating for four years, always used medical aestheticians to perform Botox. And plus they were medical estheticians, and everyone told them in Texas they can do these procedures.

Brad: Yes, I love the old everyone says it’s okay line. That’s always great to hear. And I guess, you know, we can address this statement in the second half.

Michael: And you can actually apply that in Colorado when they got the gummies and the mushrooms. Everyone else is doing it.

Brad: Oh yeah, so let’s not talk about that anymore. Well, back to Bigfoot. Had Mr. Bigfoot done any regulatory due diligence during this acquisition? Sounds like not, but I’m just curious.

Jay: Nope, nope, didn’t at all. I mean, again, this was the first time in aesthetic. So I mean, he didn’t know what he didn’t know. All he knew is, hey, there’s a successful med spa. It’s been going fine for several years. there hadn’t been any [00:11:00] issues and it had room to grow.

Michael: So the old post-closing due diligence is what you’re facing, except that – and it wasn’t just to make sure everything was okay, it was because you were facing or the client was facing a medical board complaint.

Jay: Yeah, exactly. I mean, we had to start from square one. So, the very first place we started was confirming that they were actually doing the good faith exams and then confirming, okay, who are actually doing these? If you were,

Brad: Yeah. And for audience members who’ve heard this before, forgive us. But for those hearing what the good faith exam is for the first time, this is an opportunity for a physician, a nurse practitioner or PA to determine is that patient a good candidate for those services prior to receiving that medical treatment. So it’s a very important step, yes, in every State, that you have to take on before treatment starts, but hopefully you said they were doing these things correctly, right?

Jay: Yeah. And actually, they had a pretty solid process. All the good faith exams were being conducted by nurse practitioners. And better yet, they [00:12:00] were on site the entire time.

Michael: You can’t – first of all, you’re right. Having a nurse practitioner doing the good faith exams is compliant. Having a nurse practitioner onsite really is typically appealing from a safety perspective to the boards, even when it’s allowed for them to be remote. It’s kind of a check in your favor from a risk perspective if you have that onsite supervision. So you confirmed the good faith exam part. What was the next thing you focused on?

Jay: Yeah, so we next needed to really dive into the details of the delegation and supervision part, the guts of what the complaint was about. So we started diving deeper into the medical estheticians who were performing the Botox. We gathered all the information about their licenses, certifications, experiences, et cetera, trying to just really understand who were the people that were performing the procedures. Yeah.

Brad: These are great next steps really to better understand the background of the individuals who are touching the patients, and understanding their training and skills [00:13:00] that they brought to the table. So, what did you learn?

Jay: Yeah, so what we did is we also went to, okay, what was Miss Nessie’s role in all of this? How available she was? What was her level of involvement with the policies and procedures that were in place? And again, things were very solid once we kind of started gathering all this information.

Michael: You know, it’s interesting. I mean, you hear things that are fundamentally so important, the good faith exams in place, the training, and the procedures and the policies are in place. And so yet, here we are, and this is on a podcast episode, so there has to be a twist. So Jay, after gathering all these facts and understanding the clinical operations they had in place, you must have come to conclusion whether there was an issue there or not. So this brings us to the moment of truth, Jay. Is it fake or real, medical aestheticians can be delegated treatments in a med spa?

Jay: The answer is…? [00:14:00]

Michael: Fake

Jay: But not for the reasons you might think.

Brad: I’m feeling robbed here. I mean, I feel like I’m watching a dang show and we’re going to have to go to commercial, aren’t we? To find out the answer? I want the answer now. Michael, can you make Jay answer it now?

Michael: No Brad, we’re going to go to commercial because that’s just the way we roll. And on the other side we’re going to find out why. What’s the reason is that we may not think.

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Brad: Welcome back to Legal 123s, the ByrdAdatto. I’m your host, Brad Adatto, my co-host Michael Byrd, and we’re still here with series regular Jay Reyero. Now Michael, this season’s theme is Fake or Real. And Jay just told us a story about Mr. Bigfoot and Ms. Nessie, the medical director, and of course the screaming wailing Banshee, who was the angry former employee, and what else can we learn from the recap of that story

Michael: As we recap this story with all these mythical creatures that I tried to keep them all straight, but the essence of the story starts with this, that there’s a buyer that buys this practice, doesn’t do the regulatory due diligence, and yet things are pretty good as it turns out after he recovers from getting a board investigation right after he [00:16:00] purchases the practice. So there’s a board investigation, we start to uncover things that probably should have been uncovered during the due diligence. And generally, things are looking good. They’re doing the good faith exam, they have nurse practitioners doing it, they’re onsite, they’ve got policies and procedures in place. I mean, Brad, you and I are smiling. We’re about to get up and just walk out of the podcast room. It’s awesome. And then Jay threw a twist at us and said that it was fake that medical estheticians cannot be delegated medical procedures in a medical spa, and so now I’m so curious. So Jay, before the commercial you made this big statement and then Brad alluded to the Ryan secrets and kept us in suspense that we couldn’t find out. Can you please explain?

Jay: So the reason that the answer’s fake is really quite simple. [00:17:00] Technically, medical estheticians do not exist.

Brad: So a medical esthetician is just a myth.

Jay: Yes, unlike Bigfoot and Sasquatch and Banshee, you know, this is…

Michael: Thanks for making Brad feel better.

Jay: This is actually a very common issue that we run across, not just in Texas, but all across the country. So there is not a license to be obtained where you receive a diploma or have a certificate that says you are now a licensed medical esthetician. It’s not a recognized license type. Now, there are master estheticians in a handful of states, but there’s not a medical esthetician license. In aesthetic industry, generally this title is used by licensed estheticians who then have experience in or specialize in performing the aesthetic procedures that fall within the practice of medicine category. It doesn’t really exist.

Brad: Yeah. And audience members, understand when it comes to use of names, we will generally have these combination of like [00:18:00] basically three different categories. The name that’s really given to you by your licensing board, so that’s the name you got because you have that license. But then you might go get some certificates which you receive that indicates you have this new skill, or you’re skilled at this. And then you take the marketing term, which tends to combine the first two. So for example, you might see a nurse who labels herself on the website as a master injector. Now, it doesn’t say she’s a nurse, it just says that she injects and can nurses inject? Yes. Generally, yes. But that’s the terminology when you start seeing them combined because she learned how to inject.

Michael: Yeah. And we’ve talked often about how a medical spa is kind of the melting pot of licenses. And so, you have all these people with different licenses, which means they’re regulated by different boards in these states coming together, and what that creates is this ripe opportunity for the marketing people to come up with a way to make it all connect. [00:19:00] So that’s where the medical esthetician comes in, and it sounds really great because you have an esthetician that’s learned how to do some medical stuff, so why don’t we just spice it up a little bit and call them a medical esthetician? Well, let’s bring it back. So an esthetician is licensed by the board of cosmetology. So they’ve got their formal training, right. With a formal license by the state, and they’re a license by the board of cosmetology in most cases, unless there’s some master aesthetician in a couple of States that we’ve talked about, is limited on what they can do. They specifically cannot cross the line in their license and practice medicine. They are often – the terms you’ll see is that, you know, their scope of practice is that they can deal with the dead skin cell layer and will often say they cannot perform medical procedures or procedures affecting living tissue. [00:20:00] And so Jay, that’s pretty tricky to move in answering on a technicality, but Mr. Bigfoot’s med spa is in Texas, and Texas gives Ms. Nessie some latitude when it comes to delegation.

Jay: You’re exactly right. And this is the complex area that trips up a lot of clients when we face it and we start trying to talk about the details. So in Texas, like several states, there’s what we call a general delegation rule, meaning that the physician has a right in their professional judgment to delegate certain tasks to people if they believe them to be properly trained, qualified, experienced. Basically the medical board says, we defer to you physician and your professional judgment of whether someone can handle a task, and we’re going to give you that authority and that flexibility. And so the additional thing here for Mr. Bigfoot and Ms. Nessie is in Texas, we have a very specific rule [00:21:00] on delegating what they call non-surgical medical cosmetic procedures. The Texas Medical Board outlined a ton of requirements that if you do all this and you meet all these requirements, technically a physician is authorized by rule to delegate a procedure to qualified unlicensed persons. And so, theoretically, Brad could come in and perform your Botox Michael.

Brad: Yes. And I plan to give away massive discounts on my injection fee, our listening audience out there right now, this Thursday, I will try to provide Botox for the first time ever with my very steady vodka hands.

Michael: Yeah. And Brad, this does not extend to Colorado, so you’re fishing buddies – don’t try it on them. The rules are different. And particularly if you start getting some confidence, all that Colorado has to offer. So, let’s go back to Miss Nessie’s medical board complaint. [00:22:00] How did you navigate this issue of Miss Nessie’s delegation to a set of people who technically don’t exist?

Brad: A myth.

Jay: Yeah. So, again, very complex, but given the Texas rules on delegation for these non-surgical medical cosmetic procedures, we became really laser-focused on demonstrating that all of the requirements of its rules were being met when Miss Nessie was delegating to the medical estheticians through the NPs that were doing the good faith exams. But here’s the catch, we never refer or relied on that term medical esthetician because again, it isn’t a license type, it doesn’t exist. And so, when an esthetician is performing a procedure that’s outside their scope, in this case Botox in the practice of medicine, they no longer are functioning under that license. And so instead, they’re functioning at, in this case, as unlicensed individuals or medical assistants. So, we were trying to be really laser focused of showing [00:23:00] that we were meeting the rule that the medical board had set out, and that all the things were in place is to allow for Ms. Nessie to delegate to this unlicensed individual.

Brad: Yeah. And I think, Michael, you said this really well. But some people I know might refer to this melting pot of licenses and certificates that happen inside the med spa. I don’t know who that person is, but point being is, a lot of confusion audience member happens is someone’s like, “Well, I went to this course and I learned how to do this, and therefore I should be able to do it on my license.” And as Michael was articulating earlier, you still have to be within your scope of practice. So, physically in Texas, if the person’s been trained and has the certifications and the doctor feels comfortable with that person doing it, great. But at that moment in time when the aesthetician’s injecting and providing medical service, she basically should be taking off her smock that says aesthetician. And that moment in time in Texas, a lot of times they call, [00:24:00] they’re just a medical assistant, which is an unlicensed individual assisting the physician on a medical procedure.

Michael: And this is really important. And to understand, especially on a State by State basis, you heard Jay earlier talk about Texas being a general delegation State where it’s put on the doctor. And so, the lines get a little blurred on the scope of practice thing that Brad was just talking about. Because technically, an unlicensed person, if they’ve got all these certificates from training, may give the doctor comfort to do it. If you’re in a different specific delegation type State where they say only RNs or higher can perform medical procedures, then all the training in the world to Brad’s point, doesn’t do you any good because you don’t have the scope of practice because you don’t have the formal training required to do those procedures in that State. That brings us back to what an observation [00:25:00] for these general delegation States like Texas. And that’s the old adage, just because you can does not mean you should. And if you have someone like Brad who is injecting Botox in someone and that doesn’t go well, hint, hint, it’s not going to go well.

Jay: Spoiler alert.

Michael: That doctor has to stand before the medical board and answer to that. So let’s take the application here and not call it a random investigation, but let’s say this medical esthetician had hurt someone, and the medical board calls Miss. Nessie in, and no matter what, they have to overcome this thing, no matter how much training the medical esthetician had, that you allowed someone with no formal training and license to inject a substance in under the skin to somebody. And the board, it’s almost [00:26:00] impossible to overcome no matter how good the medical aesthetician in this example was. So Jay, what are your final thoughts?

Jay: Yeah, so I mean, this was a tricky myth because of the way that it was framed. I mean, it was fake from the standpoint that medical aestheticians don’t exist. So technically you can’t delegate to a medical aesthetician. But as we’ve talked about with the example of Texas, there can be paths and there may be paths, depending on the state rules to allow an individual who is calling themselves a medical aesthetician to be delegated the treatments in a medical spa. So I think the biggest takeaway is that this is a complex topic when you get into the details, but it’s simple in the fact that a medical aesthetician is not a recognized license type, so there has to be caution when using it or when encountering that term or when you know, kind of considering that term. Yeah.

Brad: And these are good points. And one other takeaway I got is, [00:27:00] if Nessie is listening, I’m sorry that we called you Miss, since you did get your doctorate degree. So it’s Doctor Nessie to you, Michael, so just kind of keep that in your mind. But you know, all great points. But Michael, what are your final thoughts for today?

Michael: There’s an almost viral TikTok video going around that I’ve shared with both of you guys.

Brad: I think know what you’re talking about.

Michael: And these are, if we’re 13 year olds, these are 13 year olds on steroids. Two dudes who decided it would be a good idea, at least the way the video was shared, to put on a zebra costume and run with other zebras in, you know, presumably in Africa, in the bush. And so you see all these other real zebras running and this zebra costume running, and all of a sudden you see some lions start going to decide they were going to eat the low hanging fruit, which was a costume. And these daredevils, you know, strip their costume off to get the tigers to run away or the lions to run away. I think they were lions, I can’t remember. [00:28:00] And so, I couldn’t help first but think, that’s the dumbest trick to try. It is not going to end well. And the second thing I thought is, it’s a really good analogy to calling yourself a medical aesthetician because you are publicizing to the world that I am doing something that does not exist. My license doesn’t allow me to do this, but I’m saying I do this, and then the medical board will see, well, that’s not something that’s a real thing. And so, it’s like a beacon to the lions, AKA medical board and board of cosmetology to come after you.

Brad: Well, audience members, I don’t want you to, but that took a swing from myths to crazy TikTok videos. I don’t know what we’re going to throw at you, but I know next week’s audience member, we will be back again. And next Wednesday we’ll continue our quest to determine if a legal myth is fake or real when we address, if I get sued for malpractice, [00:29:00] the patient could own my practice. Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five star rating and share with your friends.

Michael: You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com.

Outro: ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own, and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.

ByrdAdatto founding partner Michael Byrd

Michael S. Byrd

ByrdAdatto Founding Partner Bradford E. Adatto

Bradford E. Adatto