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NEW HAMPSHIRE Medical Spa Regulations

Who can own a medical spa? 

A New Hampshire state licensed physician or a physician group practice can own a medical spa in New Hampshire.  A non-physician may also own a spa and contract for the provision of medical services.

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

Yes, a non-physician may own all or part of a medical spa. New Hampshire law does not prohibit the corporate practice of medicine for medical practices, which means that physicians may be employed by or contract with corporations or other business entities own by non-physicians; provided however, in such circumstances the physician-patient relationship cannot be interfered with.

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

Non-physicians (including MSOs) may be compensated for the services, space or equipment provided, by a fixed fee arrangement, or by sharing in a percentage of gross revenue generated by the practice, as long as the payment is for the value of services provided.

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

Yes.  As a physician is needed for certain services offered at a medical spa a licensed physician can be hired as a medical director if a non-physician is the owner of the medical spa. 

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

Yes, under New Hampshire law as long as you are an owner who owns the medical spa can share in the profits.

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

Yes. As long as the health professional does not directly refer the patient or pays someone to directly refer the patient to them they may collect a commission for laser treatments or injectable. 

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

Corporate practice of medicine is not addressed in any state statute or regulation in New Hampshire; therefore, no penalties exist for improperly owning 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. 

Do I need to charge sales tax on procedures like Botox?  Prescription medicines, drugs, are statutorily exempt from taxation in New Hampshire 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 New Hampshire can offer discounts through Groupon or other sites.

What type of information must a medical spa post?   There is no specific information that must be listed for a medical spa. 

Which procedures at medical spas constitute medical treatment? 

New Hampshire law has defined use of light and heat energy devices along with Botox® injections, collagen injections, soft tissue filler as medical treatment. 

Who can perform botulinum toxin injections and soft tissue fillers?

Under New Hampshire 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 can also perform injections 

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

Who can perform lasers treatments?

CHAPTER 329 PHYSICIANS AND SURGEONS Section 329:1

329:1 Practice – Any person shall be regarded as practicing medicine under the meaning of this chapter who shall diagnose, treat, perform surgery, or prescribe any treatment of medicine for any disease or human ailment. “”Surgery’’ means any procedure, including but not limited to laser, in which human tissue is cut, shaped, burned, vaporized, or otherwise structurally altered, except that this section shall not apply to any person to whom authority is given by any other statute to perform acts which might otherwise be deemed the practice of medicine. “Laser’’ means light amplification by stimulated emission of radiation. Only physicians and physician assistants who are licensed by the Board are allowed to perform laser procedures.

Who can perform Laser Hair Removal?

In New Hampshire only a licensed physician or a PA may use a laser for hair removal. 

What type of training is needed? 

A person must hold a medical license either as a licensed physician or a PA to perform laser treatments.

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 as long as it is agreed upon in the practice agreement.  It can also be performed by an NP as they have full independent practice authority.

Can a physician assistant practice independently?  No.  

Supervision Requirements

N.H. Admin. Rules §Med 602 states that the PA and the supervising physician must jointly create a written job description that conforms to the requirements for supervision established by the law. The supervising physician does not have to be physically present at the time and place the PA is providing services but must be easily available through electronic communications. 

Prescriptive Authority for Physician Assistants

N.H. Admin. Rules §Med 612 states that the PA is authorized to prescribe, dispense and administer drugs under the delegation of the supervising physician.

Scope of Practice Determination

N.H. Admin. Rules §Med 603 states that the PA’s scope of practice is determined in an agreement with the registered supervising physician. The PA’s scope of practice is limited to that of the supervising physician. 

How many physician assistants can a physician supervise? 

N.H. Medical Rules 602-02 states that a physician may not be the responsible supervising physician for more than 4 PA’s.

Can an advanced practice registered nurse practice independently? Yes. Under N.H. Rev. Stat. §326-B:2.I states that an NP has full independent practice authority as long as they are licensed by the New Hampshire State Board of Nursing.

Prescriptive Authority

N.H. Rev. Stat. §326-B:11.III states that NP’s have full independent prescribing authority. An NP may prescribe controlled and no controlled substances 

Nurse Practitioner as a Primary Care Provider

N.H. Admin. Code §Ins2701.05 states that NP’s 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. An RN may not fire a laser for hair removal.

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 New Hampshire?
New Hampshire law does not require medical assistants to hold a license

b) What is the legal scope of medical assistants in New Hampshire?
In the state of New Hampshire 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 New Hampshire law medical assistants are not required to disclose his or her name on a nametag while working. But they must inform patients, drug reps or other persons that they are medical assistants and not RN’s.

    d) May medical assistants perform any procedure in a medical spa so long as they are properly supervised?
    No, a medical assistant may only provide those services that are delegated to them by a licensed physician. 
  2. e) Are medical assistants allowed to pierce the skin?
    There is no New Hampshire 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 New Hampshire. Medical assistants may not perform any type of dermabrasion.

Can a dentist inject Botox?  In the State of New Hampshire a Dentist may inject Botox that fall under the scope of dental practice as defined under NH RSA 317-A:20 and for which they are adequately trained.

 Is Informed Consent required? Yes. New Hampshire law states that a physician, PA or other allied health professional in obtaining consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities.

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 New Hampshire.

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 a PA may see new patients. An NP may see new patients as they have full independent practice authority.

Does a medical spa need to obtain a license to operate?  A license is not required to open a medical spa but all employees who perform any sort of procedures with clients must have a license to perform those tasks.

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?  

New Hampshire 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?  New Hampshire law states that a licensee shall retain a copy of all patient medical records for at least seven years from the date of the patients last contact with the licensee, unless, before that date, the patient has requested that the file be transferred to another health care provider.

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? New Hampshire 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.  HIPAA does not apply to cash based payments.

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

House Bill 542 and House Bill 619 were both passed in 2009 which just expand the definitions and establishes requirements related to the privacy and protected health information in a health information exchange.

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 Food and Drug Administration is responsible for protecting the public health ensuring the safety, efficacy and security of human and veterinary drugs, and medical products and devices, and cosmetics  among other things.  See https://www.fda.gov/about-fda/what-we-do.

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

No.  It is not permissible to purchase Botox or fillers from another Country.

Can a chiropractor or dentist serve as a medical director? 

No.  Only 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 anddermabrasion that penetrates the outer layer of the dermis, and coolsculpting must be performed by a licensed physician, PA or an ARNP.  Only a PA or licensed physician can use a laser. 

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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