In Texas, nurse practitioners, beauticians, and other non-doctors cannot own a medical spa, also known as a medi-spa or medical spa. However, a non-doctor can participate in the day-to-day operations of a medical spa through a Management Services Organization (MSO). According to the Occupations Code, Section 1602 251 (c), a cosmetologist is only authorized to perform cosmetology services in a center authorized by the TDLR as a cosmetology establishment. Therefore, if a person performs acts under a beautician license in a place of business, then that company must have a license for a cosmetology salon or specialty salon TDLR.
A person must obtain a cosmetology license before performing a service regulated by the cosmetology statute, including facials, masks, general skin care, etc. See Occupations Code, Section 1602.003 for a specific list of exemptions set out in the cosmetology statute. Not surprisingly, many entrepreneurs and non-medical health professionals see an opportunity on the property of a medical spa, but they are not sure how to proceed. The fact of the matter is that in most of the United States, states, the services provided by medical spas are considered medical.
According to a legal doctrine known as “corporate practice of medicine”, only a doctor or corporation owned by a doctor can own a medical facility. In addition, only physicians or physician-owned corporations can charge patients' fees for the provision of medical services. Recently, AMSpa has received many emails and calls telling us that they have been informed that in Texas, people without a license can own a medical spa and simply hire a medical director. Owning a medical spa or aesthetic office for non-doctors is a goal that is often difficult to achieve. In most states, only a doctor or corporation owned by a doctor can legally own a doctor's office.
Even if you are a medical professional (for example, nurse) you cannot open a medical spa on your own, you must have a doctor associated with the medical spa. While some nurses may perform certain acts, as a rule, no medical spa should be opened without a doctor associated with it. In states like Texas, where anyone is legally authorized to administer Botox Cosmetic, even under the care of a licensed physician, there are security breaches. Cosmetic professionals, such as beauticians, are well trained in facial anatomy and how to care for the skin, however, the scope of their education ends here. The bottom line is that, in many states, a “medical director” must be the owner of the medical spa, not simply an employee or contractor. The second stumbling block faced by physicians as medical directors is overseeing and delegating medical tasks outside their specialty.
Although medical spas sometimes look more like day spas and most of the medical procedures offered are very low-risk, with few injuries or poor outcomes, medical spas are still medical facilities and are subject to the same rules and regulations as a doctor's office. Prosecutors allege that, like LVN, it is not licensed to perform non-surgical medical procedures without proper supervision and delegation. In addition to providing aesthetic cosmetic treatments common in many spa settings, medical spas provide services that cross the line into the practice of medicine. Check with the Texas Medical Board for jurisdiction in regulating the practice of medicine. Medical offices can only be structured as professional limited liability companies (PLLC) or professional associations (PAs).
Time and again, I see “medical spas” offering medical services through standard corporations and LLCs. The practice of cosmetology is within the jurisdiction of the TDLR and the practice of medicine is within the jurisdiction of the Texas Medical Board. In addition, medical spas can provide their patients with medical-grade skin care and weight loss products. While MSOs give doctors and non-doctors the opportunity to collaborate in a medical spa business with distinct ownership interests, certain pitfalls must be avoided. A doctor may only delegate medical procedures in accordance with laws and regulations related to medical licensing.
Over the past week, news of law enforcement against two medical spas (“MedSpas”), including the arrest of a popular injecting nurse and the clinic's supervising chief medical officer has created panic in the MedSpa community. Physicians should consult with the Texas Medical Board about what constitutes a medical act and to whom medical acts can be delegated. If you are considering opening a medical spa it is critical that you ensure that you comply with all relevant requirements and that your management services agreement accurately reflects your agreement.
