Virginia’s spas bypass laws by serving alcohol

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It’s been 40 years since Virginia allowed liquor to be sold by the drink. Since then, the state’s ABC laws have gotten complicated.

For example, day spas can now purchase a license to serve alcohol. Customers at the spa for a massage, manicure or other service may be served two glasses of wine or one glass of beer, bypassing Virginia’s standard requirement to serve food.

But at restaurants where liquor is served, 45% of the establishment’s sales still have to come from food.

“The primary public policy issue of all of our ABC laws since 1934 has been the prevention of the return of the saloon days,” says ABC Chief Operating Officer Curtis Coleburn.

Coleburn says requiring food keeps rowdy “watering holes” from popping up. He was speaking to a newly-formed joint committee studying Virginia’s ABC laws. The goal is to clarify the standard that businesses must meet to sell alcohol.

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Medical Spas seem to be popping up all over these days. More and more Southern Californians, both men and women, view a Botox ® injection or laser hair reduction as a cosmetic treatment rather than as a medical procedure. Likewise, people are willing to obtain these services in the same settings they use for pedicures—in day spas or even in mall stores. Frequently, the operators of these medical spas are no more aware of the legal requirements that apply to their businesses than are their customers, as both the providers and consumers of the services see these services as esthetic in nature. But because California law defines many of the services that medical spas provide as the practice of medicine, there are numerous traps for the unwary spa operator.

Medical spas were developed to offer certain esthetic skin care procedures developed by dermatologists and plastic surgeons in a setting thought to be more pleasing to “clients” than a physician-office setting. These procedures include dermal filler injections or collagen replacement therapy, fotofacial rejuvenation, laser hair reduction, microdermabrasion and chemical peels. They sometimes offer weight loss services as well, and frequently endeavor to enhance the client’s experience by offering other day spa services, such as manicures, waxing, massages and facials.

Many of these services, however, are defined as medical services by California law, and may only be provided by a physician or other licensed person, such as a registered nurse or nurse practitioner under the supervision of a physician. California’s Medical Practice Act requires a medical license to diagnose mental and physical conditions, to use drugs in or upon human beings, to sever and penetrate the tissue of human beings and to use other methods in the treatment of diseases, injuries, deformities or other physical or mental conditions.

Under this definition, it is clear that the selection of injectable pharmaceuticals, such as Botox®, determination of the dosage, and performance of the injections is the practice of medicine. Laser hair removal and intense pulse light devices also implicate the practice of medicine because these procedures penetrate the tissues of a human being.

Microdermabrasion is classified as either cosmetic or medical, depending on whether the procedure penetrates only the outermost layer of skin (cosmetic) or involves the penetration of the deeper levels of the epidermis (medical). If weight management services involve the use of prescription drugs, such as Phentermine or Adipex-P®, those services also constitute the practice of medicine.

To the extent that any of these services are provided by nurse practitioners, they are required to be supervised by a physician. Though the physician is not required to be in the room while the procedure is performed, the physician should be on the spa premises, otherwise, the nurse and the medical spa risk being charged with the unlicensed practice of medicine. Any physician involved with the medical spa, whether as medical director or investor, risks licensure action for aiding and abetting the unlicensed practice of medicine.

Additional complications arise because of California laws relating to the relationship between physicians and general business entities, and fee-splitting by physicians. California is one of the few states that still recognizes and enforces the prohibition against the so-called “corporate practice bar.” The California statute that codifies the corporate practice bar precludes “lay” individuals, organizations and corporations from providing medical services.

Nonphysicians cannot employ a licensed physician to provide medical services or enter into any contractual arrangement that allows interference with, or exercise of any control over, the medical decisions of a physician. For this reason, medical spas that are not professional corporations cannot directly employ the physician needed to supervise the medical services provided. They must instead enter into a medical director, consulting or professional services agreement, being careful that such agreements do not trespass on the physician’s professional judgment.

If the medical spa is organized as a professional corporation, California law requires that at least fifty-one percent (51%) of the shareholder interest in a professional medical corporation be owned by licensed physicians. The remaining forty-nine percent (49%) may be owned by certain other licensed clinicians, including registered nurses. Unlicensed persons and organizations cannot own any interest in a professional medical corporation or other medical entity .

These provisions make medical spa joint ventures between physicians and unlicensed persons complicated to structure. An additional wrinkle is California’s prohibition on physician fee-splitting. Because it is illegal for a California physician to split fees as incentive for referring patients, contracts must be carefully drafted so that there is no inference that the physician is paying or receiving compensation for referrals, but only for actual professional services rendered.

Laws relating to the employment of physicians and fee-splitting vary from state to state. A medical spa chain or franchise opportunity structured to comply with another state’s law may still run afoul of California requirements. And because medicine is a highly regulated industry, medical spa operators must be careful not to cross the line between cosmetology and the practice of medicine. The advice of healthcare counsel should always be obtained to make sure that the regulatory minefield is negotiated safely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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In a crackdown under a new California state law, inspectors have issued citations to five Southern California salons, putting them on probation for clipping toenails and soaking feet in unsanitary conditions, officials announced today.

Salons in Huntington Beach, Anaheim, Buena Park and Santa Ana are among 10 cited by inspectors from the California state Board of Barbering and Cosmetology. Five citations were issued in Northern California. Each salon was also fined $500.

In January, a new law gave the board the power to immediately put on probation any salon violating state hygiene rules for pampering patrons’ feet. Previously, a hearing was required before a suspension could be imposed.

State Sen. Leland Yee (D-San Francisco) wrote the law because of concern about cases in which people getting pedicures also received foot infections. The bacterial infections can affect the body’s immune system and lead to more serious health issues.

“This is not something to scoff at,” Yee said. “This rule requiring 10 minutes of cleaning can save lives.”

The board is focusing on the use of small whirlpool baths in which the feet are soaked as part of a pedicure. Many customers shave their legs before a pedicure, and bacteria may enter the body through small cuts, Underwood said.

The state requires that whirlpools and other surfaces used in foot treatments be cleaned with disinfectant for 10 minutes between customers. Yee said that foot spas have become so popular that some salons may be tempted to hurry the process so more customers can be served.

One woman died of complications from a foot infection in Salinas about two years ago, according to Kristy Underwood, the board’s executive officer. She said a woman also died in Texas.

“It’s important for consumers to be aware of the danger,” Underwood said.

Once a salon’s license is suspended, officials may immediately stay the suspension and impose a one-year probation period during which the salon is reinspected four times and pedicurists must undergo retraining in health and safety rules.

Salons on probation must document their cleaning practices and records are subject to inspection.

The state has 18 inspectors fanning out to evaluate conditions in the 40,000 California salons that offer nail services, according to Kevin Flanagan, a spokesman for the board.

“California’s consumers have a right to clean, safe service when they sit down for a pedicure,” said Carrie Lopez, director of the state Department of Consumer Affairs.

The Southern California salons whose citations were announced today are Laser Nails in Huntington Beach, KC Nails in Anaheim, Top Hair Salon in Buena Park, Super Hair & Nails in Huntington Beach and LyLy Hair and Nails in Huntington Beach

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Spas in PA / Pennsylvania Day Spas / State Board Cosmetology

 

This is the season for celebrating and get-togethers. Many Pennsylvanians will include a trip to the salon or spa. However, before scheduling any services, consumers should be aware of which techniques and equipment are permitted under Pennsylvania law.

 

The State Board of Cosmetology licenses nail, estheticians and hair salons.

 

In early December, the State Board of Cosmetology decided to allow nail technicians to use non-invasive metal foot smoothers in place of pumice stones. The advantage of metal foot smoothers is that they can be sanitized. The board prohibits the use of metal razors and rasps (which resemble kitchen cheese graters and metal files). This type of implement is considered invasive because it can cut the skin. Nail technicians and cosmetologists are prohibited from the use of metal razors or rasps unless under the direction of a podiatrist.

 

The use of the adhesive methyl methacrylate (MMA) by nail salons is illegal and may cause serious damage. Originally developed for the dental industry, MMA was adapted for use in nail enhancement products. In 1998, it was banned after it was found to be harmful. MMA may be identified by its strong and offensive odor.

 

At the same meeting, the board also clarified approval for the use of industry standard mechanical and electrical equipment for noninvasive body treatments. Customers may find this type of equipment in an esthetics salon when requesting services such as a body wrap or chemical exfoliation. The equipment must be of a cosmetic grade and not a medical grade, unless the services are provided under the direction of a physician. A client at a spa that promotes itself as a “medi-spa” should ask about the supervising physician. For chemical exfoliation, any production application with a pH of two or below would be considered medical grade; above two is considered cosmetic because it does not alter the skin.

 

Any use of lasers in esthetic services, such as laser hair removal, Intense Pulse Light and similar procedures, must be performed under the direction of a physician. The Federal Food and Drug Administration classifies lasers used on skin as medical lasers due to the risk and nature of the procedure. For instance, lasers could remove skin lesions that may be symptomatic of more serious conditions that should be medically treated. For this reason, medi-spas must be affiliated with a licensed doctor. Many physicians prefer to hire trained estheticians to work in their offices or in medical spas.

 

The Board of Cosmetology does not regulate massage therapy services, although cosmetology licensees may massage certain areas: the feet, lower leg, hands, arms, shoulder, neck and head. Cosmetology salons are prohibited from providing massage of the torso and leg within the licensed salon area. Salons and spas may offer these services in separate areas but the cosmetology board has no jurisdiction over these services. Massage rooms should be labeled “Massage.”

 

Among the more than one million professionals licensed by the Department of State are 134,991 Board of Cosmetology licensees (as of Nov. 19, 2007), including:

– 88,831 cosmetologists — 9,828 cosmetology teachers — 3,703 estheticians — 14,651 nail technicians — 6 natural hair braiders — 14,590 cosmetology salons — 1,159 esthetician salons — 2,042 nail technology salons — 157 cosmetology schools — 24 cosmetology apprentices

 

When considering cosmetic treatments or other professional services, it is important that consumers seek out the services of only licensed individuals. To verify that a professional is licensed as required, go to http://www.dos.state.pa.us/ and, under the heading Let Us Help You, click on the Verify a Professional License link and enter his or her name. This site also informs visitors if any disciplinary action has been taken against a licensee.

 

To report unprofessional or unlicensed practice, contact the Bureau of Professional and Occupational Affairs’ Professional Compliance Office at 1-800-822-2113. Complaint forms are available online at http://www.dos.state.pa.us/; under the heading “Let Us Help You”, click on the File A Complaint link.

 

The 27 licensing boards and commissions oversee a range of occupations in health and business-related fields, including auctioneers, barbers, chiropractors, engineers, funeral directors, nurses, nursing home administrators, optometrists, pharmacists and many others. If a licensed professional is found to have violated either state law or that board’s regulations, the board can impose disciplinary action against that licensee. Disciplinary actions may include civil penalties and the suspension or revocation of a license.

 

Find important information for each of the 27 boards under the Department of State’s Bureau of Professional and Occupational Affairs, including the current board newsletter and regulations governing each particular board’s licensees, at the department’s Web site,

 

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