“Express-Authorization Doctrine” for Ablative Cosmetic Medical Procedures
A Commentary on Anderson v. Utah Department of Commerce, 2025 UT 19

1. Introduction

Anderson v. Department of Commerce presented the Utah Supreme Court with a seemingly narrow licensing dispute: may an Advanced Practice Registered Nurse (“APRN”) independently perform tumescent liposuction and fat-grafting in Utah? Beneath that question lay a broader doctrinal issue: when, if ever, can non-physician licensees cross the boundary into surgical practice absent an express statutory grant?

Karen Jean Anderson, an APRN, had for several years offered body-contouring services. The Utah Division of Professional Licensing (“DOPL”)—backed by the Department of Commerce—disciplined her for practicing medicine without a medical license. Anderson contended the Nurse Practice Act (“NPA”) already empowered APRNs to perform any procedure “consistent with professionally recognized preparation,” including surgery when done with local anesthesia. The Supreme Court rejected that view, holding that only licensees whose statutes explicitly authorize them “to operate or perform a surgical procedure” may independently undertake ablative cosmetic medical procedures. APRNs, whose statute contains no such express language, fall outside that group.

2. Summary of the Judgment

• The Court unanimously affirmed the Department’s cease-and-desist order and fine (the fine was previously reduced on internal agency review).
• Key Holding: Utah’s licensing code gives “exclusive authority” to perform ablative cosmetic medical procedures either to physicians/osteopathic physicians (for whom such work is part of the practice of medicine) or to other licensees whose scope of practice expressly includes surgery. APRNs have no such express authority; therefore, Anderson both practiced medicine without a physician’s license and exceeded the scope of her nursing license.
• Methodology: The Court relied on plain-language statutory interpretation, resolving the case without deference to agency interpretation because questions of law are reviewed for correctness.

3. Analysis

3.1 Precedents Cited and Their Influence

Although statutory in nature, the decision draws on a line of interpretive cases that guide Utah courts:

• Marion Energy, Inc. v. KFJ Ranch Partnership, 2011 UT 50 – reaffirmed that statutory interpretation begins with plain language, expanding to legislative history only upon finding ambiguity. Used to anchor the Court’s hermeneutic framework.
• Bagley v. Bagley, 2016 UT 48 – reiterated that statutory text is “the best evidence” of legislative intent, reinforcing a text-first approach.
• Hertzske v. Snyder, 2017 UT 4 and Buck v. Utah State Tax Commission, 2022 UT 11 – emphasized holistic reading of statutes to avoid interpretations made implausible by context.
• Monarrez v. Utah Dep’t of Transportation, 2016 UT 10 – advised courts to avoid readings that render statutory words superfluous. Critical here; Anderson’s reading would nullify the delegation section (Utah Code § 58-67-805(2)).

None of these precedents addressed nursing or cosmetic surgery, but collectively they cemented the Court’s disciplined textualism—an approach that ultimately foreclosed Anderson’s permissive reading.

3.2 Legal Reasoning

1. Statutory Framework
   Title 58 of the Utah Code contains an “Umbrella Act” applicable to all licensees plus separate practice acts (NPA, MPA, OMPA, etc.). In 2012 the Legislature overhauled cosmetic-procedure regulation, expressly adding “cosmetic medical procedures” to the definition of the practice of medicine (Utah Code § 58-67-102(19)(a)).
2. Core Exception Clause
   An ablative cosmetic medical procedure does not constitute the practice of medicine “if the scope of practice for the person performing the ablative cosmetic medical procedure includes the authority to operate or perform a surgical procedure.” (§ 58-67-102(19)(b)(ii)). The Court labelled this the dispositive “surgical-authorization exception.”
3. Express-Authorization Requirement
   The Court determined that “authority to operate or perform surgery” must be express in the governing practice act, because:
   • Comparable statutes for dentists (§ 58-69-102) and podiatrists (§ 58-5a-103) explicitly use “operate” or “perform a surgical procedure.”
   • The Legislature’s reuse of that exact phrase in the exception signals intent to limit the exception to licensees having those words in their acts.
4. Rejection of Implied Authority
   Anderson urged that the NPA’s broad verbs—“diagnosis, treatment, correction”—implicitly cover surgery, especially because APRNs may administer local anesthesia. The Court disagreed:
   • The exception is phrased as an opt-out from the definition of practicing medicine; silence in the NPA cannot create opt-out authority.
   • Reading “correction” as surgery would render the delegation provision (§ 58-67-805) redundant, violating Monarrez.
   • Local anesthesia is also used for many nonsurgical, nonablative procedures; it does not imply surgical authority.
5. Legislative History (Confirmatory Use Only)
   Even if ambiguity were assumed, the 2012 bill sponsor’s committee remarks—limiting ablative procedures to “dentists, podiatrists, medical doctors, and osteopathic doctors”—corroborate the Court’s reading.

3.3 Impact on Future Cases and the Field

The ruling establishes an “Express-Authorization Doctrine” in Utah: non-physician licensees may not independently perform ablative cosmetic medical procedures unless their practice act explicitly authorizes surgery. Key implications include:

• Regulatory Clarity: Boards of Nursing, Cosmetology, and others now have clear guidance on disciplinary boundaries.
• Practice Realignment: APRNs must cease offering services such as liposuction, fat transfer, CO₂ resurfacing, etc., unless delegated and supervised per statute.
• Legislative Cue: If broader APRN surgical privileges are desirable, the Legislature must amend the NPA expressly—courts will not infer them.
• Analogous Professions: Other mid-level practitioners (e.g., physician assistants, aestheticians) face the same hurdle; future litigation may test whether their statutes contain sufficient surgical language.
• Telemedicine & Mobile Clinics: Entities operating across state lines must heed Utah’s strict textualist stance when staffing cosmetic services.

4. Complex Concepts Simplified

• APRNs: Registered nurses with graduate-level training who can diagnose and treat within nursing’s ambit, prescribe drugs, and practice relatively independently.
• Ablative vs. Nonablative Procedures: Ablative destroys or removes living tissue (e.g., laser ablation, surgical excision). Nonablative alters tissue without removal (e.g., intense-pulsed-light). “Superficial” procedures (e.g., microdermabrasion) are treated as nonablative and are often unregulated or less regulated.
• Scope of Practice: The set of activities that the licensing statute or regulations allow a professional to perform.
• Delegation Provision (§ 58-67-805): Allows physicians to assign two specific ablative laser procedures to qualified APRNs under indirect supervision and with additional training.
• Plain-Language Canon: Courts first look at the ordinary meaning of the statute’s words; if meaning is clear, no other aids (like legislative history) are needed.

5. Conclusion

Anderson v. Department of Commerce crystallizes Utah’s commitment to explicit statutory authority in the sensitive realm of cosmetic surgery. The Court refused to equate broad clinical language (“correction,” “treatment”) with surgical permission, insisting instead on textual specificity. By doing so, it preserved legislative supremacy over the expanding roles of mid-level practitioners, ensured consumer protection through clear professional boundaries, and set a precedent that is likely to ripple through telehealth, med-spa operations, and inter-professional turf disputes for years to come.