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TENNESSEE

Author Allyson Avila, ESQ

Who can own a medical spa? 

A Tennessee state licensed physician or a physician group practice can own a medical spa in Tennessee.  A non-physician may not own a spa and contract for the provision of medical services.    Tennessee Code Title 48, Chapter 101, Part 6 Section 48-101-610 provides that the following health care professionals shall have a right to form and own shares in the same professional corporation:

     (1)  Optometrists licensed under title 63, chapter 8, and ophthalmologists licensed under title 63, chapter 6 or 9; 

     (2)  Podiatrists licensed under title 63, chapter 3, and physicians licensed under title 63, chapter 6 or 9, except radiologists, pathologists, or anesthesiologists; 

     (3)  Doctors of chiropractic licensed under title 63, chapter 4, and physicians licensed under title 63, chapter 6 or 9, except radiologists, pathologists, and anesthesiologists; and 

     (4)  Physician assistants licensed under title 63, chapter 19, part 1, and physicians licensed under title 63, chapter 6 or 9, except radiologists, pathologists, and anesthesiologists. 

Can a non-physician own all or part of a medical spa? 

No, aside from the noted entities and professions above, a non-physician may not own all or part of a medical spa. 

If I’m not a doctor or a licensed practitioner, how can I make money from a medical spa?

Non-physicians may not make money as an owner from a med spa.  However, there are certain contracts that if, properly formed, will permit the non-physician to share in certain revenues of the medical spa.  It is essential that the agreements must be properly formed by an experienced attorney to ensure that the agreements do not violate Tennessee’s laws regarding the corporate practice of medicine and fee splitting.  

If I’m not a doctor, can I employ a “medical director” to provide medical services for my medical spa? 

No.  A medical spa cannot hire a physician to provide medical services.

 

If I’m not a doctor, can I share in the profits of a medical spa? 

No. Under Tennessee law a non physician cannot share in the profits.   

Can a nurse, physician assistant or nurse practitioner take a commission for administering laser treatments or injectables like Botox?

Under Tennessee law a nurse, PA or NP may receive a commission for administering laser treatments or injectables like neurotoxins pursuant to Tennessee Code 63-6-225, however: 

(a)   It is an offense for any licensed physician or surgeon to divide or to agree to divide any fee or compensation of any sort received or charged in the practice of medicine or surgery with any person, without the knowledge and consent of the person paying the fee or compensation, or against whom the fee may be charged. 

(b)  The provisions of this section do not prohibit a physician from compensating any independent contractor that provides goods or services to the physician on the basis of a percentage of the physician's fees generated in the practice of medicine. The percentage paid must be reasonably related to the value of the goods or services provided. Payments by physicians in return for referrals are prohibited. 

What are the penalties for improperly owning a medical spa by violating the Corporate Practice of Medicine Doctrine? 

Under TCA §63-6-204 a medical facility may employ a physician to provide medical services. So no penalties exist under Tennessee law unless a non physician owns or practices in a medical spa.

Do I have to be a doctor to own medical spa equipment, like lasers, or real estate?

No.  There is no requirement that a doctor must own the equipment or real estate although in Tennessee only a Physician may own a medical spa. 

Do I need to charge sales tax on procedures like Botox?  Prescription medicines, drugs, are statutorily exempt from taxation in Tennessee so a medical spa does not need to charge sales tax on procedures like Botox. However, we recommend that you consult with your certified public accountant regarding the extent of the tax exemptions.

What type of insurance does a medical spa need?  A medical spa should have a malpractice policy covering any provider that performs medical services, a general liability policy and a product liability policy covering any equipment used and retail goods sold. The spa or practice should also have employment practices liability insurance and cyber security insurance.

Can a medical spa pay a person or entity to market the practice’s services? 

A medical spa may employ and provide compensation to an individual marketer or marketing company, so long as payment is based on the effort expended at a fair market value of time and services rendered.

Can a medical spa offer discounts through Groupon or other similar social networking websites? 

Medical spas in Tennessee cannot offer discounts through Groupon or other sites because paying for referrals is prohibited.

What type of information must a medical spa post?   Under TN code §63-1-153 states that any entity doing business as or advertised as a medical spa shall display the name of the medical director or supervising physician and shall indicate one of the following by signage at its practice site and in its media and advertising.

Which procedures at medical spas constitute medical treatment? 

Tennessee law Public Chapter 494 states that any service that uses biological or synthetic material, a chemical application, a mechanical device, or a displaced energy form of any kind that alters or damages or is capable of altering or damaging living tissue to improve the patients appearance or achieve an enhanced aesthetic result. 

Who can perform botulinum toxin injections and soft tissue fillers?

Under Tennessee law any doctor can do cosmetic services in his/her primary care practice; no specialized background in dermatology or plastic surgery is required.  PA and NPs can order and perform injections as long as it is in their practice agreement with a licensed physician. RN’s may perform injections as long as it is delegated task from a licensed physician.

Medical Assistants cannot inject Botox and/or fillers even if a physician is present.

Who can perform lasers treatments?

A licensed physician, PA and licensed electrologist can perform certain laser treatments.

Who can perform Laser Hair Removal?

In Tennessee only a licensed physician or someone who has been delegated responsibility such as PA or NP or electroligist may use a laser for hair removal. 

What type of training is needed? 

To receive an electrologist license from the state of Tennessee, you must have a high school diploma or equivalent and have completed a 600 hour course of instruction in electrology (175 Theory and 425 Clinical practice). 

Is a good faith examination needed? 

All patients receiving a medical procedure identified above require a good faith examination by a physician, physician assistant or advanced practice registered nurse. It can be performed by a PA or NP as long as it is agreed upon in the practice agreement.

Can a physician assistant practice independently?  No.  

Supervision Requirements

Tenn. Code Ann. §63-19-106 states a written protocol is required between a PA and a supervising physician. The Board of Medical Examiners regulates the supervising physicians review of the information in the charts of patients examined by the PA. 

Prescriptive Authority for Physician Assistants

Tenn. Code. Ann. §63-19-107(2) states that a PA may prescribe drugs and Schedule II-V controlled substances if delegated by the supervising physician. 

Scope of Practice Determination

Tenn. Code Ann. §63-19-106 states that the range of services that a PA may provide is determined in the written protocol. A PA may only perform those tasks that are within the PA’s skills and competence and within the usual scope of practice of the supervising physician.

How many physician assistants can a physician supervise? 

No.  There is no Tennessee state law limiting on how many PA a physician can supervise.

Can an advanced practice registered nurse practice independently? No. Under Tenn. Code Ann. §63-7-123, an NP must have collaborative agreement is required. The physician has control and responsibility for prescriptive services rendered by the NP.

Prescriptive Authority

Tenn. Code. Ann. §63-7-123 states that NP’s may prescribe schedules II-V controlled substances upon receiving certificate of fitness from the State Board of Nursing and adoption of physician supervisory rules. Schedules II-V may only be prescribed after consultation with the physician. 

Nurse Practitioner as a Primary Care Provider

Tenn. Admin. Code §1200-13-13.01(98) states that NPs are recognized in state policy as primary care providers.

What kind of physician supervision is needed for a registered nurse (RN) in a medical spa?  An RN needs to be supervised by a licensed physician. When an RN is performing services, there must be an MD, PA or NP on site.  The RN can then perform tasks that are delegated to them by one of the above.

What is a medical assistant? What role do they play in a medical spa? 

Medical assistants are professional multi-skilled persons dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician. This practitioner assists with patient care management, executes administrative and clinical procedures, and often performs managerial and supervisory functions.

a) Should a medical assistant be licensed to practice in Tennessee?
Tennessee law does not require medical assistants to hold a license

b) What is the legal scope of medical assistants in Tennessee?
In the state of Tennessee licensed physicians can delegate a reasonable scope of clinical and administrative tasks to knowledgeable and competent unlicensed professionals such as medical assistants.

  1. c) Should a medical assistant disclose, while working, his or her name and the practitioner’s license status on a nametag?
    Under Tennessee law medical assistants are not required to disclose his or her name on a nametag while working.

    d) May medical assistants perform any procedure in a medical spa so long as they are properly supervised?
    No, a medical assistant may not perform medical treatment such as injectables.  See below. 
  2. e) Are medical assistants allowed to pierce the skin?
    There is no Tennessee law stating that MA cannot pierce the skin. As long as a licensed physician delegates the task it is allowed.

    f) Are medical assistants allowed to administer Botox or inject collagen?
    The injection of Botox, collagen, or other fillers does not fall within the medical assistant’s scope of practice.

    g) Are medical assistants allowed to use lasers or intense light devices to remove hair, scars, moles or other blemishes?

No. Medical assistants are not authorized to use lasers or intense light devices to remove those conditions as they are not licensed by the State of Tennessee. Medical assistants may not perform any type of dermabrasion.

Can a dentist inject Botox?  In the State of Tennessee a Dentist may inject Botox for dentally related procedures.

Is Informed Consent required? Yes. Under Tennessee law a doctor must provide sufficient information to the patent to allow him or her to evaluate the risks of the procedure that is being performed.

Can a med spa hire an aesthetician to perform nonmedical dermabrasion, cosmetic facial and skin treatments? 

Yes,  Physicians can hire licensed individuals to perform cosmetology services, if they have obtained a license from the State of Tennessee.

What about nurse practitioners and physician assistants? Can they see new patients or must a physician do it? 

Yes as long as it is agreed to in the practice agreement with the supervising physician an NP or PA may see new patients.

Does a medical spa need to obtain a license to operate?  

Yes. Pursuant to Public Chapter 494, which was signed by Governor Haslam on May 20th, 2015, the Board of Medical Examiners and the Board of Osteopathic Examination are required to establish and maintain an online registry for "medical spas." A "medical spa" is any entity, however named or organized, which offers or performs "cosmetic medical services." A "cosmetic medical service" is any service that uses a biologic or synthetic material, a chemical application, a mechanical device, or a displaced energy form of any kind that alters or damages, or is capable of altering or damaging, living tissue to improve the patient's appearance or achieve an enhanced aesthetic result.

If you are a medical director or supervising physician of a medical spa, you must register your medical spa by completing the registration form and submitting it your licensing Board as soon as possible.  

All registrations must be renewed annually and will be subject to an annual registration fee. 

Must I follow OSHA regulations?  Yes.  Every business in the United States must know the OSHA regulations and have policies and procedures in place to comply with the regulations.  This includes a bloodborne pathogen policy, a contaminated needlestick policy and a laser safety policy with the appointment of a laser safety officer.

What type of records are medical spas required to keep of their patients?  

Tennessee requires that medical spas or facilities keep your name, address, telephone number or other contact information. Your date of birth or medical record number. Date(s) of treatment or service (such as dates you were in the hospital).

How long do I have to keep the patient’s records?  Under Tennessee law patient medical records must be kept for ten years from the last professional contact with the patient. The medical record for minors must be kept for one year after they reach the age of majority or ten years after the last patient contact, whichever is longer.

Can a med spa text or email patients to convey confidential medical information?  Yes.  You may text or email a patient provided that the patient has given you their express written consent.  

Are Botox parties legal? Tennessee law does not specifically address Botox parties so the law does not prohibit Botox parties or injections in the home.  However, the injections must be performed by a qualified medical professional or allied health professional in sanitary conditions. 

What is HIPAA? 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is federal law that aims to protect patient privacy while improving the efficiency and effectiveness in the health care system by requiring standards and requirements for any electronic transmission of protected health information (PHI). Its rules relate to privacy and security, notifying patients if his or her personal information was breached, and sets uniform standards for electronic transmissions and transactions.

Does Tennessee have its own version of HIPAA? How does it differ? 

Tenn. Code Ann. §47-18-2107 is Tennessee version of HIPAA covers mostly the same things as the federal law just adds extra protections for patients.

What is a DEA Registration Number? 

A DEA registration number is a number assigned to a health care provider by the U.S. Drug Enforcement Administration that allows them to write prescriptions for controlled substances.

What is the FDA and what do they do? 

The FDA is a regulatory agency that protects the public health by ensuring, among other things, that prescription and non-prescription drugs, vaccines, biological products, medical devices and electronic products that give off radiation (lasers) are safe and effective.

Is it legal to purchase drugs like Botox and fillers from overseas? From Canada, Europe, or Asia?

Generally no. While food, drugs, and medical devices are increasingly being imported from around the globe, the FDA must still evaluate the safety and quality of all incoming products and approve them for use in the United States. Buying drugs or medical devices directly from foreign countries puts patients at increased risk because the items purchased may not have been evaluated and approved by the FDA. 

Can a chiropractor or dentist serve as a medical director? 

No. A licensed medical physician can only act as a medical director.

Who can legally perform the following treatments: microneedling; lasers/light-emitting devices; dermaplaning; Coolsculpting; permanent makeup? 

Microneedling, laser or intense pulse light devices, dermabrasion that penetrates the outer layer of the dermis, and coolsculpting must be performed by a licensed physician, a PA, or an ARNP.

DISCLAIMER: 

The information and answers contained in these frequently asked questions provide a general guide to certain laws that apply to "medical spas" and cosmetic medical treatment in this particular state. The information on this site is for general reference only and accuracy cannot be guaranteed, as medical spa legalities and regulations change very frequently. This information is not intended to provide legal advice, and it should not be relied upon as legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers: You should not act upon this information without seeking knowledgeable legal counsel that takes the laws of your jurisdiction into account. All uses of the content of this site, other than personal uses, are prohibited.

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