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Med Spa Compliance: Are you Operating Within the Law?

med spa complianceBy: Jacqueline Bain

On May 19, 2018, Delray Beach medical spa owner Jennifer Aspen was booked into the Palm Beach County Jail and charged with practicing medicine without a license. Ms. Aspen is the manager of Mermaid’s Skin & Wellness, a medical spa located in Delray Beach, Florida. The charges against Ms. Aspen stem from the fact that a Delray Beach police officer presented to Mermaid’s Skin & Wellness for a testosterone shot. Ms. Aspen stated to the officer that she would perform the injection. Ms. Aspen is a certified nursing assistant in the State of Florida. Her license is currently listed as “delinquent” on the Department of Health’s website, meaning that (as of today) she failed to renew her license after its May 30, 2018 expiration date. Certified nursing assistants are not generally allowed to administer testosterone in the State of Florida.

One of the legal issues that presents frequently in our office is med spa compliance; who can open and operate a medical spa if it is just a cash business, meaning that it does not submit claims for reimbursement to any government or commercial payor. Misunderstandings run rampant in the medical spa industry and many times patients are administered treatment from persons who are not supposed to be providing it.

Generally, anyone can open a medical spa, but only certain people are appropriately licensed to provide care and treatment to its patients. For instance, laser hair removal can only be performed by physicians or under the on-site supervision of a physician. Moreover, only certain licensed individuals are qualified to provide injections.

Under Florida law, certified nursing assistants like Ms. Aspen may assist with personal care tasks provided that they are performed under supervision of either an ARNP or an LPN. Certified nursing assistants may not administer medicine or injections. It doesn’t matter whether the patient is paying cash for the services.

Unlicensed provision of medical services is a big deal for both the patients on the receiving end of the service and persons providing those services. For patients, imagine asking a lay person to cover your face in chemicals or inject your body with a paralyzing agent like Botox™. Your body deserves to have licensed care!

For unlicensed persons providing services, the unlicensed practice of medicine is only one potential charge. Charges for criminal assault and battery may also result. Moreover, civil liability for improper provision of care may subject a medical spa to huge amounts in damages.

Ms. Aspen is far from the only person in this business who may not be appropriately licensed to provide the care and treatment normally provided by a medical spa. We will see how her case is disposed of as it winds through the court system (she has not been convicted of anything, only charged). Meantime, if you are planning to jump into the medical spa business, it’s important to be advised of the responsibility you are taking on. Many medical spas are not properly providing care, and the argument that “no one else has a physician on clinical staff” isn’t a valid defense in the event that the Department of Health decides to investigate. Legitimate medical spas are well versed in how to legally provide care for their patients and which providers are authorized to provide certain types of services through their license. Take the time to ensure that you are operating in compliance with the law in order to avoid regulator scrutiny.