New York Toughens Rules on What Unlicensed Assistants Can Do
– By Michael Schroeder, Esq.
As some chiropractic doctors have diversified into spa-type services, there has been a shift in how lawsuits are being brought alleging malpractice injuries. Plaintiffs attorneys in New York are now not only suing spas for alleged malpractice, but also for allegations that providers have exceeded the scope of their licenses, including allegations of the unauthorized practice of medicine.
This is important because, under most professional liability and/or commercial general liability policy, you are only covered for services rendered by providers who are properly licensed to render such services.
The NYS Department of Education recently published a chart entitled “Appearance Enhancement Licensees- Procedural Service Determinations.” The NYS Department of Education states on the chart that it may be used to help identify procedures or services that may be performed by Appearance Enhancement licensees. The chart can be accessed here.
While to our knowledge, no court has yet rendered a decision on whether the chart or its assertions are an accurate statement of New York law, a court presented with this issue could find this publication persuasive.
Notably, the chart lists a number of procedures and then indicates whether those procedures can be performed under the following licenses: esthetics, cosmetology, nail specialty, natural hair styling, and waxing. The chart indicates that the following services cannot be performed with any of those license types or by unlicensed assistants: acupressure (feet-head-back); aroma touch technique; cool sculpting (deep down penetration to freeze); cryotherapy; dermarolling/microneedling (collagen induction therapy); diatherapy, RF (Cellutron); diatherapy – skin treatment (broken capillaries); ear candling; electrodessication; eyelash and eyebrow tinting; eyelash perm/lift (using chemicals); fillers (injections of Botox, Restylane, etc.); fish pedicure (garra rufa); laser procedures (other than laser hair removal); low level laser therapy (LLLT); manual lymphatic drainage (waste removal; edema); deep tissue massage; microblading (semi-permanent); nano-needling/micro-channeling (Rezenerate Wand); Neuromuscular Massage Therapy (NMT); Ombre/Powdered Brows; dermal peels; pen treatment, hyaluronic; pen treatment, plasma/fibroblast; permanent makeup (tattoo); plasma skin tightening; platelet-rich plasma (PRP); radiofrequency (RF) facial; skin sheek clear procedure; skin sheek lift (HIFU); skin tag removal; synergy, electrical optical (elos); teeth whitening/bleaching; and thermage.
If you are having any of these services provided in your office, please be sure that your providers are properly licensed.
Michael Schroeder has represented the chiropractic profession for over 40 years. He is the president of the National Association of Chiropractic Attorneys, general counsel for the National Chiropractic Council, and has represented the California Chiropractic Association, the California Board of Chiropractic Examiners, and numerous other chiropractic entities.
November 2024