There’s a new sheriff in town, and they are looking to crack down on medical spas in Michigan.

Medical spas offering minimally invasive cosmetic medical services have enjoyed increasing popularity in the State of Michigan and across the United States. But with great success comes greater scrutiny of the so-called “Wild West” of the healthcare industry, particularly from lawmakers and government agencies. And with Michigan’s newly proposed legislation, lawmakers may be going after the bread and butter of many medical spas: Botox and dermal fillers.

New Michigan Legislation

Cosmetic medical services are medical-grade skin care and aesthetic services that constitute the practice of medicine and may only be performed by, or under the supervision of, a licensed physician. Since cosmetic medical services generally are not medically necessary and can be minimally invasive, it often leads to confusion as to the qualifications required to perform them.

Michigan lawmakers have answered with proposed legislation, which identifies, and significantly limits, who can perform cosmetic injectable services under Michigan law. On June 7, 2022, Michigan legislators introduced Senate Bill No. 1068, which proposes to permit only the following licensed persons to administer Botox and dermal fillers for cosmetic purposes: a physician; a physician’s assistant (“PA”) with a practice agreement with a physician; or a nurse practitioner (“NP”) acting under the delegation and supervision of a physician.

This bill, if enacted, could have significant implications for existing medical spas in the State of Michigan.

Who Would Be Impacted?

Currently, the administration of Botox and dermal filler must be either: (1) performed by a physician; or (2) delegated by a physician to someone under his or her supervision who is qualified by education, training, and experience to perform such injection service.

Should the proposed legislation be enacted, individuals and medical providers other than physicians, PAs, or NPs (“non-qualifying providers”) would be expressly prohibited from administering Botox and dermal filler injections for cosmetic purposes. Any medical spas with non-qualifying providers as injectors would need to rely on their supervising physicians, or hire qualified PAs and NPs, to administer these injectables.

In addition, some non-qualifying providers have leveraged their medical experience with cosmetic injectables to start medical spas of their own. Though physicians and non-physicians usually cannot co-own a medical spa, there are other alternative business structures available that can comply with Michigan law if executed correctly. For example, some non-physicians create a separate company that manages the medical spa practice owned by a partnering physician, in exchange for a compliant management fee.

Assuming the non-qualifying provider’s medical spa business is legally structured, a non-qualifying provider may be undertaking management of the medical spa business, and/or acting as the sole cosmetic injector (by working under the delegation and supervision of the partnering physician, consistent with Michigan law). However, if the new law is enacted, a non-qualifying provider may find themselves out of a job in their own medical spa, and will need to find a replacement injector.

What Wouldn’t Change?

While this legislation, if enacted, would have a significant impact on medical spas that rely on non-qualifying providers to inject Botox and dermal fillers, it does not appear to prohibit non-qualifying providers from performing other cosmetic medical services under the delegation and supervision of a licensed physician.

For example, non-qualifying providers may still be permitted to perform services such as microdermabrasion or cosmetic laser services, provided the services are within the person’s education, training, and experience, and the physician and non-qualifying provider meet all delegation and supervision requirements under Michigan law.

In addition, this proposed legislation appears to only limit administration of Botox and dermal filler for cosmetic purposes. As a result, it is possible the administration of Botox for non-cosmetic purposes will remain unchanged by this legislation. This might include use of Botox for migraine treatment, which is arguably not a cosmetic purpose covered by this proposed law.

While this newly introduced legislation is in the early stages of review and may never be enacted into law, its introduction suggests the State of Michigan will be directing more attention to medical spas and their compliance with Michigan law. Medical spas may want to consider consulting an attorney and evaluating their current compliance, so they are ready if the sheriff comes knocking.

This article was originally published in Healthcare Michigan, September 2022.

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About the Author:

Jessica Busch is Of Counsel in Dickinson Wright’s Troy office. She can be reached at 615-780-1102 or jbusch@dickinsonwright.com. Her bio can be accessed here.

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