Does a Tennessee medical spa worker need a separate aesthetics license to provide facials and skincare under a doctor's supervision?
Subject
Opinion No. 12-91, Exemption from the Cosmetology Act for Medical Professionals, September 25, 2012
Plain-English summary
Board of Cosmetology Chairman Linda Colley asked the AG how the Cosmetology Act's medical-professional exemption applies to people working in medical spas. Two questions:
- Does someone without an aesthetics license, providing aesthetics services in a medical spa under a physician's supervision, qualify for the Tenn. Code Ann. § 62-4-109(a)(3) exemption?
- Would the same person also qualify if he or she did hold an aesthetics license?
The AG said yes to both, subject to a three-part test:
- The aesthetics service must also fall within a medical practice.
- The person must be licensed for that particular medical practice (medicine, nursing, etc.).
- The person must be performing the service in his or her medical-professional capacity.
If any one of those is missing, the exemption is gone and the Cosmetology Act applies (a Class B misdemeanor for unlicensed practice).
For Question 2, holding an aesthetics license does not eliminate the medical-professional exemption. The exemption in § 62-4-109(a)(3) doesn't condition itself on the absence of an aesthetics license; if the three criteria are met, the medical-professional exemption controls.
Currency note
This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
What "aesthetics" covers
Tenn. Code Ann. § 62-4-102(a)(1) defines the practice of aesthetics broadly:
(A) Massaging, cleansing, stimulating, manipulating, exercising, beautifying or similar work with hands or mechanical or electrical apparatus or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams;
(B) Placing or applying artificial eyelashes; or
(C) Giving facials, applying makeup, giving skin care or removing superfluous hair by tweezing, depilatories or waxing.
The Tennessee Board of Cosmetology licenses aesthetics practitioners (Tenn. Code Ann. §§ 62-4-103, -108, -110). Practicing aesthetics without a license is a Class B misdemeanor (§ 62-4-129).
What aesthetics doesn't cover
§ 62-4-102(b) carves out from "aesthetics" any "treatment or attempt to treat any abnormality or disease-related condition of the skin, skin disease process or aging process of the skin." That is medical territory.
The exemption framework
§ 62-4-109(a) lists exemptions from the Cosmetology Act. Relevant ones include:
- (1) Massage as defined by § 63-18-102 (massage therapists)
- (2) Registered barbers in barber shops
- (3) Physicians, surgeons, trained nurses, nurse assistants, aides, "or similar personnel, acting solely in their professional capacities"
- (4) Free home cosmetology services
- (5) Free cosmetics demonstrations in retail
- (6) Hair wrapping (with conditions)
The AG's analysis focused on the medical-professional exemption in § 62-4-109(a)(3).
How the exemption interacts with overlapping licenses
Many regulated activities overlap. Barbers and cosmetologists both cut hair (§§ 62-3-105(2), 62-4-102(a)(3)). Aestheticians and massage therapists both provide massage (§§ 62-4-102(a)(1), 63-18-102(5)). The exemptions exist so the same activity does not require two licenses.
Three-part test for the medical exemption
The AG distilled § 62-4-109(a)(3) into three required elements:
- Activity overlap. The aesthetics service must also fall within a medical practice. Treating skin conditions, applying chemical peels under medical supervision, post-procedure care, and similar work could qualify; pure cosmetic facials with no medical aspect probably would not.
- Medical license held. The person must hold the license for the medical practice in question (physician, surgeon, registered nurse, certified nursing assistant under Tenn. Code Ann. § 68-11-209(e) and Tenn. Comp. R. & Reg. 1200-08-06-.01(8), or similar). Estate of French v. Stratford House discusses the training program required for nurse assistants and aides.
- Acting in medical-professional capacity. The person must be performing the activity as part of their medical work, not on the side. Working in a medical spa supervised by a licensed physician usually satisfies this prong.
If all three are present, no aesthetics license is required. Holding an aesthetics license too is fine and does not eliminate the exemption.
Penalty for getting it wrong
Tenn. Code Ann. § 62-4-129 makes practicing aesthetics without a license (and without a valid exemption) a Class B misdemeanor. The Board can also seek an injunction in circuit or chancery court.
Common questions
What aesthetics services done in a medical spa might NOT qualify for the exemption?
Standard cosmetic facials, makeup application, eyelash extensions, and similar services that don't involve any medical treatment of skin conditions are pure aesthetics. Unless the person performing them is a licensed medical professional acting in their medical capacity (and the service relates to medicine), an aesthetics license is required.
Does the supervising physician's presence make the activity "medical"?
Not by itself. The activity must be one the medical professional is licensed to perform within the scope of their medical practice. A nurse doing routine waxing for cosmetic purposes is probably not exempt; a nurse performing post-laser-treatment skincare under a physician's protocol probably is.
Are nurse assistants and aides covered?
The exemption covers "[p]hysicians and surgeons or trained nurses, trained nurse assistants, aides or similar personnel, acting solely in their professional capacities." So yes, if the three criteria are met. Estate of French v. Stratford House describes the certification training program for nurse assistants and aides.
Would a licensed aesthetician working in a medical spa be subject to both the Cosmetology Act and medical regulation?
A licensed aesthetician without a medical license is regulated solely under the Cosmetology Act. The Cosmetology Act doesn't authorize them to perform medical procedures (like injectables); only an appropriately licensed medical professional can do those.
Citations
Statutes and regulations:
- Tenn. Code Ann. §§ 62-4-101 to -129 (Tennessee Cosmetology Act of 1986)
- Tenn. Code Ann. § 62-4-102(a)(1) (aesthetics definition)
- Tenn. Code Ann. § 62-4-102(b) (treatment of skin conditions excluded)
- Tenn. Code Ann. § 62-4-109(a)(3) (medical-professional exemption)
- Tenn. Code Ann. § 62-4-129 (penalty)
- Tenn. Code Ann. §§ 63-6-101 to -241 (medical practice licensing)
- Tenn. Code Ann. §§ 63-7-101 to -304 (nursing licensing)
- Tenn. Code Ann. § 63-18-102(5) (massage definition)
- Tenn. Code Ann. § 68-11-209(e); Tenn. Comp. R. & Reg. 1200-08-06-.01(8) (nurse assistants and aides certification)
Cases:
- Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011)
Source
- Landing page: https://www.tn.gov/attorneygeneral/opinions.html
- Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-091.pdf
Original opinion text
S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202
September 25, 2012
Opinion No. 12-91
Exemption from the Cosmetology Act for Medical Professionals
QUESTIONS
-
Is a person who does not have an aesthetics license but is providing aesthetics services in a medical spa or similar facility supervised by a licensed physician exempt from the Cosmetology Act pursuant to Tenn. Code Ann. § 62-4-109?
-
Would the same person be exempt from the Cosmetology Act if he or she did have an aesthetics license?
OPINIONS
-
Yes, if (1) the aesthetics service also falls within a medical practice, (2) the person is licensed for that particular medical practice, and (3) the person is providing that service solely in his or her capacity as a medical professional. Persons who do not satisfy all three criteria are not exempt medical professionals and are subject to the Cosmetology Act.
-
Yes, if all three criteria are present.
ANALYSIS
- Pursuant to the Tennessee Cosmetology Act of 1986 (the "Cosmetology Act" or "Act"), the Tennessee Board of Cosmetology (the "Board") governs the practice of aesthetics, and persons practicing aesthetics are required to have a license issued by the Board. Tenn. Code Ann. §§ 62-4-103, -108, & -110. The practice of aesthetics includes
(A) Massaging, cleansing, stimulating, manipulating, exercising, beautifying or similar work with hands or mechanical or electrical apparatus or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams;
(B) Placing or applying artificial eyelashes; or
(C) Giving facials, applying makeup, giving skin care or removing superfluous hair by tweezing, depilatories or waxing.
Tenn. Code Ann. § 62-4-102(a)(1). Certain persons and activities are exempted from the Act and thus do not need to obtain a license from the Board. For example, the practice of aesthetics "does not include any treatment or attempt to treat any abnormality or disease-related condition of the skin, skin disease process or aging process of the skin." Tenn. Code Ann. § 62-4-102(b) (2009). Also exempt are:
(1) Persons and establishments engaged exclusively in massage, as defined by § 63-18-102;
(2) Duly registered barbers and technicians operating in duly registered barber shops only;
(3) Physicians and surgeons or trained nurses, trained nurses assistants, aides or similar personnel, acting solely in their professional capacities;
(4) Any person rendering cosmetology services in the person's own home without charge to the recipient;
(5) Any person who demonstrates or applies, or both, cosmetics without charge in a retail establishment; and
(6) Any person who engages in hair wrapping . . . .
Tenn. Code Ann. § 62-4-109(a).
Professional activities in Tennessee that require licensure sometimes overlap with each other. For example, both barbers and cosmetologists cut hair, compare Tenn. Code Ann. § 62-3-105(2) with Tenn. Code Ann. § 62-4-102(a)(3), and both aestheticians and massage therapists provide massage services. Compare Tenn. Code Ann. § 62-4-102(a)(1) with Tenn. Code Ann. § 63-18-102(5). The purpose of some of the exceptions in Tenn. Code Ann. § 62-4-109(a) is to ensure that persons who are practicing another profession do not need to obtain a Cosmetology Act license. The Act does not apply to massage therapists licensed under Tenn. Code Ann. § 63-18-101 to -116 (the "Massage Licensure Act") merely because an activity falls within both it and the Massage Licensure Act. Tenn. Code Ann. § 62-4-102(b)(1). Registered barbers practicing in a barber shop do not need to obtain a cosmetology license for activities that constitute both barbering and the practice of cosmetology. Tenn. Code Ann. § 62-4-102(b)(2). However, if massage therapists or barbers were to perform an activity that falls within the Cosmetology Act but not the Massage Licensure Act or barbering statutes, therapists or barbers would not be exempted from the Act.
The Cosmetology Act includes a similar exemption for licensed or certified medical professionals. Tenn. Code Ann. § 62-4-109(a)(3). Persons practicing medicine or nursing are required to obtain licenses pursuant to Tenn. Code Ann. §§ 63-6-101 to -241 and 63-7-101 to -304. Nurse assistants and aides must complete a training program and obtain a certification from the Tennessee Department of Health. Tenn. Code Ann. § 68-11-209(e) & Tenn. Comp. R. & Reg. 1200-08-06-.01(8). See also Estate of French v. Stratford House, 333 S.W.3d 546, 558 n.11 (Tenn. 2011) (discussing the required training program for nurse assistants and aides). The phrase "or similar personnel" provides the exemption for other licensed or certified nurses, assistants, or aides. Tenn. Code Ann. § 62-4-109(a)(3). For any activity that falls within both a medical practice and the practice of aesthetics, it is not necessary for the licensed nurse, assistant, or aide to obtain an aesthetics license when performing such an activity as part of his or her medical profession. If, however, a nurse, assistant, or aide were to perform an activity that constitutes the practice of aesthetics but does not fall within his or her licensed medical practice, the nurse, assistant, or aide would not be exempt from the Act. Also, the nurse, assistant, or aide would not be exempt from the Act if he or she were to perform an activity that falls within both practices but the performance of the activity was not in his or her "professional capacity" as a medical professional. Tenn. Code Ann. § 62-4-109(a)(3).
Accordingly, a person who does not have an aesthetics license but is providing aesthetics services in a medical spa or similar facility supervised by a licensed physician is exempt from the Act if (1) the aesthetics service also falls within a medical practice, (2) the person is licensed for that particular medical practice, and (3) the person is performing that service in his or her professional medical capacity. Based on the circumstances described in the first question, the third criterion would appear to be satisfied because the service is being provided in a medical spa supervised by a licensed physician. Persons who do not satisfy all three criteria are not exempt as medical professionals and are subject to the Act. Those who violate the Act commit a Class B misdemeanor, and the Board may bring an action in circuit or chancery court to enjoin them. Tenn. Code Ann. § 62-4-129.
- Assuming the three criteria discussed above are present, possession of an aesthetics license would not make the exempt nurses, assistants, and aides subject to the Act. Even though they may be licensed under the Act, the exemption still applies. Tenn. Code Ann. 62-4-109(a)(3) does not limit the exemption to medical professionals who do not possess an aesthetics license.
ROBERT E. COOPER, JR.
Attorney General and Reporter
WILLIAM E. YOUNG
Solicitor General
NICHOLAS G. BARCA
Assistant Attorney General
Requested by:
The Honorable Linda Colley
Chairman, Board of Cosmetology
500 James Robertson Parkway
Nashville, Tennessee 37243-1147