Total Health Law Blog
We have seen a continued growth in the popularity of medical spas despite the hurdles presented by the COVID-19 pandemic. See Unpacking the Success Factors of the Medical Spa Industry During the Pandemic, Forbes (May 21, 2021). Medical spas present unique compliance challenges from determining whether certain aesthetic services are considered the practice of medicine in the state to whether non-physicians can own the practice. This blog post outlines 3 compliance questions every potential non-physician medical spa owner should ask. If you have questions regarding this blog post or need counsel navigating the complex rules and regulations for opening or operating a medical spa, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.
- The procedures I plan to offer are aesthetic, so do I really need a physician involved?
The answer to this question depends on the types of procedures that will be offered. Generally speaking, only physicians can practice medicine. Perhaps surprisingly to some, many aesthetic procedures are considered the practice of medicine. What is “the practice of medicine” is determined by each state. For instance, in Georgia, Body Sculpting and Botox treatments are considered the practice of medicine. See Georgia Composite Medical Board Meeting Minutes, Feb. 2021 and Oct. 2020. For any procedure that is considered the practice of medicine, a physician must either personally perform the procedure, personally supervise a lower-level provider performing the procedure, or delegate to a mid-level the ability to perform the procedure.
- Can I own the medical spa as a non-physician?
Each state’s stance on physician ownership of medical practices varies. Generally, however, you need to consider whether the state prohibits (1) the corporate practice of medicine and/or (2) sharing fees between physicians and non-physicians. The reason for these prohibitions is generally that states do not want providers to consider profit when treating patients. As such, when non-physicians do not receive funds for patient care but for the back office/administration aspects of the practice and those fees are not shared with physicians, the risk in violating these doctrines are reduced. Structuring the entity in such a way, however, is involved; there is no one size fits all approach. Whether you have to consider these restrictions or others in your state requires an analysis of your states’ laws and rules.
- If I own the practice and perform the procedures, are there any rules around me paying a physician to delegate to me?
This answer will vary by state. In Georgia, if you are an Advanced Practice Registered Nurse (“APRN”) owner of a medical spa who has been delegated authority by a physician to perform certain medical procedures, the rules prohibit you from “employing” your delegating physician. O.C.G.A. § 43-34-25(n); Ga. R. 360-32.04. Although it may seem easy to avoid violating this rule by hiring your delegating physician as an independent contractor, in July 2021, the Board stated: “A[] [Nurse Practitioner] cannot hire a physician who will be supervising them.” The use of the prohibition on “hiring” rather than just “employing” presents a potential complication needing thoughtful consideration to reduce the risk of violating the statute and rule. Furthermore, the fact that your delegating physician is also the medical director of the practice may not reduce the risk even though there may be no similar prohibitions on employing your medical director in your state.
There are, of course, numerous additional structure and operational considerations prior to opening a medical practice. If you have questions regarding this blog post or need counsel navigating the complex rules and regulations for opening or operating a medical spa, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.