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Can I Do That? Deciphering Your State’s Regulations

Susanne Schmaling April 2014 issue of Skin Inc. magazine
Can I Do That? Deciphering Your State’s Regulations

New modalities and products are introduced to the skin care industry frequently. The challenge for each licensed skin care professional is to understand if these modalities are legal in your state. Before investing time and capital in training, equipment or products, it is crucial to know the answers to the questions below.

1. What is my scope based on statute?

State laws, or statute, are set by a lawmaker after a considerable public process. Statute includes your state’s definition of the practice of skin care, and can be found on your state’s board of cosmetology website. You will be looking for a term, such as “act” or “code,” not “rules” or “regulations.” (The difference between the two will be discussed later in this article.)

Following is an example of a state statute defining skin care practice.

Within the practice of cosmetology, there exist the specialty branches of skin care and nail care.

1. Skin care includes any one or more of the following practices:

A. Giving facials; applying makeup; giving skin care; removing superfluous hair from the body of any person by the use of depilatories, tweezers or waxing; or applying eyelashes to any person.

B. Beautifying the face, neck, arms or upper part of the human body by use of cosmetic preparations, antiseptics, tonics, lotions or creams.

C. Massaging, cleaning or stimulating the face, neck, arms or upper part of the human body by means of the hands, devices, apparatus or appliances, with the use of cosmetic preparations, antiseptics, tonics, lotions or creams.

It is important to note the body areas listed in statute and what procedures are documented. If only the upper body is listed as within scope, then full-body treatments are outside your scope of practice. Based on the example above, the scope for this esthetician would include makeup and lash application; machine facials and basic facials, limited to the upper body only; and waxing and tweezing on the face and body. Outside the scope or poorly defined are body treatments, hand treatments, exfoliation treatments and the use of advanced equipment on the face and body.

2. What is my scope based on rules and regulations?

After looking at statute, the next step is looking at rules and regulations. These are not the same as statute; they are added by administrative agencies—in this case the cosmetology board—to give more detailed information on the interpretation and practical use of the statute.

Unlike statute, rules are frequently adapted based on industry changes and needs. This is the area that estheticians must keep their eyes on. If there is an outside interest that feels a certain treatment should not be performed by estheticians, they can challenge the board to change the rules.

Following is an example of a rule that directly relates to estheticians.

Invasive procedures.

1. No licensee may perform any act that affects the structure or function of the living tissue of the face or body. Any such act shall be considered an invasive procedure.

2. Invasive procedures include, but are not limited to, the following:

A. Application of electricity that contracts the muscle (faradic current);

B. Application of topical lotions, creams or other substances that affect living tissue (most products used for anti-aging applications);

C. Penetration of the skin by metal needles, except electrolysis needles (cosmetic needling and injections);

D. Abrasion of the skin below the nonliving epidermal layers (anything that penetrates the dermis); and

E. Removal of skin by means of a razor-edged instrument (dermaplaning).

This rule severely limits the modalities an esthetician can use. Even mild peels and retinol products might be considered out of scope under this rule. In this case, the use of LED light was banned because of this definition. This rule was implemented in one state in 1994 because no one stepped up to challenge the definitions.1

3. What part of the skin does this modality or product affect?

Hopefully, when you are considering a new modality or product for your skin care facility, you have information based on sound science available to provide an answer to this question. If not, then take a hard look at the structure and function of the skin, and the claims made about the modality or product.

For example, if you hear it will “reverse the signs of aging,” find out specifically what that means. If loss of elasticity is addressed, then you know there will be some dermal involvement. Is it direct or indirect involvement? Some stimulation of the epidermis can influence the dermis, but your scope does not allow direct penetration of the dermis.

4. Can I get liability insurance for this modality or product?

Insurance companies will only cover you for services that you can legally perform within your scope of practice. The burden of that decision rests solely on you. It’s another good reason why understanding your scope is essential.

This process can seem time-consuming, but don’t worry—with a little bit of homework, you can figure this out. Also, keep in mind that, as a licensed professional, it is one of the responsibilities of your job.

See the Scope of Practice Flow Chart to help simply explain the process. You only need to understand your statute and rules once, then keep an eye on them for changes. Ask the right questions before starting a new modality and maintain your knowledge of how the skin works. You can do it!

REFERENCES

  1. www.barbercosmo.ca.gov/laws_regs/art12.shtml#a991

(Accessed Feb 11, 2014)

Susanne Schmaling is the director of education for Associated Skin Care Professionals. A licensed esthetician and experienced instructor with more than 15 years of experience, Schmaling is also a member of the 2014–2015 Skin Inc. Editorial Advisory Board.

 

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