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What About Botox?
What About Google the words Botox, nurse practitioner, and peel together, and you will get about 800 results. Most are Web sites for aesthetic centers or spas offering antiaging skin treatments, and nurse practitioners (NPs) are performing some of them. For example, 1 site advertises an NP who provides “sclerotherapy, collagen, CosmoPlast and CosmoDerm treatments and Botox in our medical spa.” Another offers a consultation with an NP for $50. It appears that some of the facilities are owned, run, or overseen by plastic surgeons, dermatologists, or family physicians. Skin treatments apparently are a big opportunity for anyone who can perform them, including NPs. One NP writes: “A year ago, I received hands-on aesthetics training in Botox, Restylane, lasers, microdermabrasion, and chemical peels from a well-known NP-run program in Florida. I was granted a certificate of completion and CEUs. My collaborative physician is a gynecologist who also received similar training but is mostly interested in liposuction and mesotherapy. Her office is 45 miles away, and she has been very slow starting her medical spa. I rarely see clients there. In the meantime, I have been offering services in clients’ homes local to me. I carry all medical supplies, leave with all waste, chart, photograph, and then e-mail all the records to her office. “This has become a popular practice in my area. I also hear of others offering services in salons and day spas. I am interested in renting out space in a day spa and a cosmetic dentistry practice as well and have been approached by the owners. “I have contacted the state board of nursing [BON] several times regarding practice sites, and they have stated that they do not regulate sites, only practice. They have also confirmed that, with my certification in women’s health, I am unable to treat men unless I have a written order to do so as a registered nurse [RN]. I am planning to sit for the new certifying exam as an aesthetic nurse specialist as soon as it is available. With this certification, can I be in a collaborative relationship with a dermatologist or plastic surgeon?” www.npjournal.org
Botox? LEGAL LIMITS Carolyn Buppert
Good question. The answer may be somewhat clear or not so clear, depending on the state where the NP is working. Laws on medical spa treatments are evolving, as are laws on an NP’s scope of practice. The way to approach the NP’s question is to answer the following questions: • Are Botox treatments the practice of medicine in your state? • Do NPs have the legal authority to prescribe Botox? • Do NPs have the legal authority to administer Botox? • Is the collaborator appropriate (ie, will the relationship be accepted by the BON, if your state requires a physician collaborator for NP practice)? • Is your area of certification compatible with the treatments you will perform? • Has the BON made any statement about Botox? • Do you have something in writing from the BON that permits you to proceed? • Does the board of medicine have any authority to control the practice of NPs in your state? Has it issued any statements on Botox?
Are Botox Treatments the Practice of Medicine? Botulinum toxin is available by prescription only. The prescribing of Botox is the practice of medicine, but what about its administration? Look at state law. For example, the Massachusetts Board of Registration in Nursing determined in 2002 that the administration of Botox for cosmetic purposes is within the legal scope of nursing practice. The BON stated that the nurse must verify and validate that 81
JNP there is a complete and appropriate order for the medication from a duly authorized prescriber. The BON also determined that administration of collagen and/or other “fillers” is not within the legal scope of nursing practice. In some states, administration of Botox is a medical procedure. See “Does the board of medicine have any authority to control the practice of NPs in your state?”
Do NPs Have the Legal Authority to Prescribe and/or Administer Botox? NPs will obtain their legal authority to prescribe Botox in the same way they obtain their legal authority to prescribe other medications—from state law or through delegation from a physician. If a state BON requires an NP to submit a list of medications the NP can prescribe and the NP wants to prescribe Botox, then Botox should be added to the list. If a BON wants to exclude Botox from the list, it can do so. As for administration, if it is a medical procedure, an NP would obtain legal authority to perform it in the same way as an NP obtains the authority to perform other medical procedures— through state law authorizing performance of the procedure or through delegation from a physician. If a board wants to exclude Botox from the procedures an NP can perform, it can. In a few states, the law on an NP’s scope of practice refers to standards set by national professional organizations or certification organizations. For example, according to the rules of Mississippi, “The NP shall practice according to standards and guidelines of the national certification organization, and in collaboration with a licensed physician ... according to a nursing board-approved protocol or practice guidelines. . . .” In those states, an NP would look to the national organizations to see whether they have addressed the issue of Botox. However, as of the date of writing this column, no major NP organization has taken a stand. In other states, even if a national organization has a standard or guideline on Botox, it may not carry weight with the nursing boards. Unless state law specifically defers to standards of national organizations, nursing boards do not make their determinations about an NP’s scope of practice based on opinions of any professional organization. 82
Is the Collaborator Appropriate (ie, will the relationship be accepted by the BON, if a state requires a physician collaborator for an NP’s practice)? Some nursing boards look closely at the physician’s board certification and the NP’s certification and will not approve a collaborative agreement unless the certifications are compatible. For example, 1 BON recently disapproved a collaboration between a women’s health care NP and a psychiatrist. The NP who asked the question above may or may not be approved to work with a dermatologist.
Is Your Area of Certification Compatible With the Treatments You Will Perform? Some nursing boards may approve of a women’s health care NP performing skin treatments, whereas others may not. Because there are no university-based educational programs for plastic surgery, dermatology, or cosmetic procedure NPs, it is not clear just what kind of NP would be best prepared to perform skin therapies. There may be no good reason for turning down a women’s health care NP and approving a family NP. However, BONs get to make such decisions, and it is very difficult to get a reversal once they have made the decision.
Has the BON Said Anything About Botox? Some nursing boards are issuing statements about Botox. For example, the California BON has issued a statement that RNs may inject it only on order from a physician in an organized health care system, but not in a beauty shop or spa. See www.rn.ca.gov/practice /pdf/nprb43.pdf.
Do You Have Something in Writing From the BON That Gives You the Go-Ahead? If there is no mention of Botox on your state’s BON Web site, query the BON for a written determination about whether there are any special considerations regarding NPs prescribing or administering Botox or the setting where the treatment is ordered or performed. February 2006
Does the Board of Medicine Have any Authority to Control the Practice of NPs in Your State? Has the Board of Medicine Issued any Statements on Botox? In some states, the board of medicine has the legal authority to make rules about NP practice, to determine whether Botox is the practice of medicine, and to determine who may perform that treatment. For example, this statement appears on the Alabama BON Web site: “In view of the Alabama State Board of Medical Examiners’ position that the injection of Botox, Restylane and collagen are the practice of medicine, the Alabama Board of Nursing rescinded its March 2004 decision concerning the administration of Collagen by LPNs, RNs, and CRNPs and the administration of Botulinum Toxin Type A by RNs and CRNPs” (Alabama State Board of Medical Examiners at www.albme.org and ABN Administrative Code §610-X-6-.03(6)(c)(ii)).
To Ignore the BON’s or Board of Medicine’s Rules Could Mean: • You lose your job or your practice. • The BON may discipline you. You could lose your license. • If sued for malpractice, you could lose the case because you were practicing outside your scope of practice. • You could lose your malpractice coverage (ie, the company could refuse to defend you because you were practicing outside your scope of practice). • Your collaborating physician could be sanctioned by the board of medicine. • You could go to jail (see the italicized portion of the next paragraph.) Here is California’s law on practicing medicine without a license (italics added): “Any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing www.npjournal.org
a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense punishable by a fine not exceeding $10,000, by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment ... (Medical Practice Act, CA Business and Professions Code, Section 2052). As an NP, you should feel comfortable ordering and/or performing medical spa treatments, including Botox, if you can prove that you are qualified to order and perform the treatment AND 1 of the following is true: • Your state’s statutes or regulations specifically authorize you to order and/or perform Botox or other medical cosmetic treatments. • A relevant opinion giving you the go-ahead appears on your state BON Web site and nothing contradictory appears on the state’s board of medicine Web site. • You have a letter from the BON giving permission to proceed. • The BON has approved your delegation/ collaboration documents and the procedures contained therein. Because this area of the law is evolving, laws could come out of a legislature, state regulatory agency, BON, or board of medicine at any time. If you want to build your life’s business on being able to perform these treatments, it is best to get clear legal authority to do so before investing time and money in that business.
Carolyn Buppert, CRNP, JD, practices law in Annapolis, Md. She can be reached at [email protected]. 1555-4155/06/$ see front matter © 2006 Elsevier Inc. All rights reserved. doi:10.1016/j.nurpra.2005.12.007
83
Botox? LEGAL LIMITS Carolyn Buppert
Good question. The answer may be somewhat clear or not so clear, depending on the state where the NP is working. Laws on medical spa treatments are evolving, as are laws on an NP’s scope of practice. The way to approach the NP’s question is to answer the following questions: • Are Botox treatments the practice of medicine in your state? • Do NPs have the legal authority to prescribe Botox? • Do NPs have the legal authority to administer Botox? • Is the collaborator appropriate (ie, will the relationship be accepted by the BON, if your state requires a physician collaborator for NP practice)? • Is your area of certification compatible with the treatments you will perform? • Has the BON made any statement about Botox? • Do you have something in writing from the BON that permits you to proceed? • Does the board of medicine have any authority to control the practice of NPs in your state? Has it issued any statements on Botox?
Are Botox Treatments the Practice of Medicine? Botulinum toxin is available by prescription only. The prescribing of Botox is the practice of medicine, but what about its administration? Look at state law. For example, the Massachusetts Board of Registration in Nursing determined in 2002 that the administration of Botox for cosmetic purposes is within the legal scope of nursing practice. The BON stated that the nurse must verify and validate that 81
JNP there is a complete and appropriate order for the medication from a duly authorized prescriber. The BON also determined that administration of collagen and/or other “fillers” is not within the legal scope of nursing practice. In some states, administration of Botox is a medical procedure. See “Does the board of medicine have any authority to control the practice of NPs in your state?”
Do NPs Have the Legal Authority to Prescribe and/or Administer Botox? NPs will obtain their legal authority to prescribe Botox in the same way they obtain their legal authority to prescribe other medications—from state law or through delegation from a physician. If a state BON requires an NP to submit a list of medications the NP can prescribe and the NP wants to prescribe Botox, then Botox should be added to the list. If a BON wants to exclude Botox from the list, it can do so. As for administration, if it is a medical procedure, an NP would obtain legal authority to perform it in the same way as an NP obtains the authority to perform other medical procedures— through state law authorizing performance of the procedure or through delegation from a physician. If a board wants to exclude Botox from the procedures an NP can perform, it can. In a few states, the law on an NP’s scope of practice refers to standards set by national professional organizations or certification organizations. For example, according to the rules of Mississippi, “The NP shall practice according to standards and guidelines of the national certification organization, and in collaboration with a licensed physician ... according to a nursing board-approved protocol or practice guidelines. . . .” In those states, an NP would look to the national organizations to see whether they have addressed the issue of Botox. However, as of the date of writing this column, no major NP organization has taken a stand. In other states, even if a national organization has a standard or guideline on Botox, it may not carry weight with the nursing boards. Unless state law specifically defers to standards of national organizations, nursing boards do not make their determinations about an NP’s scope of practice based on opinions of any professional organization. 82
Is the Collaborator Appropriate (ie, will the relationship be accepted by the BON, if a state requires a physician collaborator for an NP’s practice)? Some nursing boards look closely at the physician’s board certification and the NP’s certification and will not approve a collaborative agreement unless the certifications are compatible. For example, 1 BON recently disapproved a collaboration between a women’s health care NP and a psychiatrist. The NP who asked the question above may or may not be approved to work with a dermatologist.
Is Your Area of Certification Compatible With the Treatments You Will Perform? Some nursing boards may approve of a women’s health care NP performing skin treatments, whereas others may not. Because there are no university-based educational programs for plastic surgery, dermatology, or cosmetic procedure NPs, it is not clear just what kind of NP would be best prepared to perform skin therapies. There may be no good reason for turning down a women’s health care NP and approving a family NP. However, BONs get to make such decisions, and it is very difficult to get a reversal once they have made the decision.
Has the BON Said Anything About Botox? Some nursing boards are issuing statements about Botox. For example, the California BON has issued a statement that RNs may inject it only on order from a physician in an organized health care system, but not in a beauty shop or spa. See www.rn.ca.gov/practice /pdf/nprb43.pdf.
Do You Have Something in Writing From the BON That Gives You the Go-Ahead? If there is no mention of Botox on your state’s BON Web site, query the BON for a written determination about whether there are any special considerations regarding NPs prescribing or administering Botox or the setting where the treatment is ordered or performed. February 2006
Does the Board of Medicine Have any Authority to Control the Practice of NPs in Your State? Has the Board of Medicine Issued any Statements on Botox? In some states, the board of medicine has the legal authority to make rules about NP practice, to determine whether Botox is the practice of medicine, and to determine who may perform that treatment. For example, this statement appears on the Alabama BON Web site: “In view of the Alabama State Board of Medical Examiners’ position that the injection of Botox, Restylane and collagen are the practice of medicine, the Alabama Board of Nursing rescinded its March 2004 decision concerning the administration of Collagen by LPNs, RNs, and CRNPs and the administration of Botulinum Toxin Type A by RNs and CRNPs” (Alabama State Board of Medical Examiners at www.albme.org and ABN Administrative Code §610-X-6-.03(6)(c)(ii)).
To Ignore the BON’s or Board of Medicine’s Rules Could Mean: • You lose your job or your practice. • The BON may discipline you. You could lose your license. • If sued for malpractice, you could lose the case because you were practicing outside your scope of practice. • You could lose your malpractice coverage (ie, the company could refuse to defend you because you were practicing outside your scope of practice). • Your collaborating physician could be sanctioned by the board of medicine. • You could go to jail (see the italicized portion of the next paragraph.) Here is California’s law on practicing medicine without a license (italics added): “Any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing www.npjournal.org
a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense punishable by a fine not exceeding $10,000, by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment ... (Medical Practice Act, CA Business and Professions Code, Section 2052). As an NP, you should feel comfortable ordering and/or performing medical spa treatments, including Botox, if you can prove that you are qualified to order and perform the treatment AND 1 of the following is true: • Your state’s statutes or regulations specifically authorize you to order and/or perform Botox or other medical cosmetic treatments. • A relevant opinion giving you the go-ahead appears on your state BON Web site and nothing contradictory appears on the state’s board of medicine Web site. • You have a letter from the BON giving permission to proceed. • The BON has approved your delegation/ collaboration documents and the procedures contained therein. Because this area of the law is evolving, laws could come out of a legislature, state regulatory agency, BON, or board of medicine at any time. If you want to build your life’s business on being able to perform these treatments, it is best to get clear legal authority to do so before investing time and money in that business.
Carolyn Buppert, CRNP, JD, practices law in Annapolis, Md. She can be reached at [email protected]. 1555-4155/06/$ see front matter © 2006 Elsevier Inc. All rights reserved. doi:10.1016/j.nurpra.2005.12.007
83