A great deal of med spa compliance argument is about whether a given device treatment is a medical act. South Dakota answered the question by statute thirty years ago.
SDCL 36-4-8.2: “Surgery constituting the practice of medicine includes the use of a laser or ionizing radiation for the purpose of cutting or otherwise altering human tissue for diagnostic, palliative, or therapeutic purposes.”
Read the operative words
“Or otherwise altering” is doing the work. This is not confined to ablative or cutting lasers. A device used to alter human tissue for a therapeutic purpose is within the definition, which reaches a large part of a standard aesthetic menu.
And “surgery constituting the practice of medicine” is a stronger characterisation than “a medical act”. It puts these treatments in the category the Medical Practice Act reserves most tightly.
What follows
- A qualified practitioner must evaluate the patient and order the treatment; see good faith exam requirements.
- Delegation must be to a practitioner whose own licence and training support performing a surgical act.
- Written protocols should name the device, the settings range, the indications and the contraindications.
- Complication management belongs to a physician, with a documented escalation path.
The states that agree, and the ones that do not
Maryland reaches the same conclusion. New Hampshire restricts laser use to physicians and physician assistants. Ohio allows delegation but attaches numeric supervision limits. Iowa created a qualified laser technician category.
Four different answers to the same device. This is why device policy has to be written per state and why a single national laser protocol is a false economy.
The practical failure mode
An operator buys a device, trains the existing aesthetics staff, and discovers afterwards that in South Dakota the treatment is statutorily surgery. The equipment is fine; the staffing model is not. Check the definition before the purchase order, not after.
Related reading
Frequently asked questions
Is laser treatment surgery in South Dakota?
SDCL 36-4-8.2 provides that surgery constituting the practice of medicine includes using a laser or ionizing radiation to cut or otherwise alter human tissue for diagnostic, palliative or therapeutic purposes.
Does this cover non-ablative devices?
The statute reaches use of a laser to cut “or otherwise alter” human tissue for those purposes, which is broader than cutting alone.
Who may perform laser treatments?
A practitioner whose licence and training support performing a surgical act, under a qualified practitioner’s order and written protocol.
When was this enacted?
It comes from 1995 session law.
General information about South Dakota law, not legal advice. Confirm your obligations with the South Dakota Board of Medical and Osteopathic Examiners and counsel licensed in South Dakota.