Letter from the CEO: A Word About the State Legal Summaries

Posted By Mike Meyer, Thursday, August 6, 2020

doctor standing next to scales of justice

By Alex R. Thiersch, JD, CEO of the American Med Spa Association (AmSpa)

There has been a lot of discussion on the AmSpa Member's Lounge about AmSpa's state legal summaries. (For anyone wondering what that refers to, AmSpa has researched and provided to its members a comprehensive summary of the law that applies to medical spas in every state; click here for more information.) We sometimes (although rarely) get questions about whether the summaries we provide are complete or accurate because folks see something in our summary that they can't believe is true. (RNs can't own a med spa... what!?!) Because enforcement is often lacking, and because many medical spas are operating in non-compliant manner, the conclusion is that we are not accurately providing the lay of the land in that particular state (more on that later). I understand the frustration—we deal with it every day—but I also want to assure everyone that we do everything we possibly can in terms of time, money and resources to provide the most accurate summary anywhere. Because of the questions we get, we wanted to add some insight into how we prepare them.

First and foremost, these summaries are not biased or intentionally slanted in one direction or another, nor are they designed to encourage the use of a lawyer or any particular law firm. We want this industry to operate legally, and so long as our members do that, we couldn't care less which attorney they use. The summaries have been developed over years with the help of multiple law firms, hundreds of phone calls and correspondence with medical and nursing boards, discussion with local and national health care lawyers, and hours and hours of research. The consult with our partner law firm, ByrdAdatto, which is offered as part of membership with AmSpa, is meant to be used in addition to the state legal summaries to give folks an accurate outline of the law in every particular state. (Please see this blog post for more information). Whether you use the consult or not, the goal here is to provide you with enough information to know the lay of the land in your particular state so that you can make an informed decision about risk, compliance and potential liability.

But every situation is different, and without a full understanding and analysis of a medical spa's factual situation—and this means hours of time reviewing documents, corporate structure, medical processes and protocols—it is impossible to give a complete answer on how the law applies to a particular circumstance. The law surrounding the practice of medicine—and particularly aesthetic medicine—is extremely complex. Not only are there multiple lengthy statutes in every state governing every practice—a medical practice act, a nurse practice act, statutory provisions addressing NPs and PAs, statutes dealing with professional corporate structure—but every state also has at least three boards that have written rules governing specific areas of practice, namely the boards of medicine, nursing and cosmetology, and each of those boards has hundreds of opinions dealing with licensing decisions, specific factual scenarios and disciplinary action.

What's so difficult about this area of the law is that, even with the thousands of documents that exist in every state, most of the statutes, rules, opinions and supporting documents do not deal specifically with the practice of aesthetic medicine, and certainly not with the new treatments that are developed on seemingly a monthly basis. As such, when we research these laws, we aren't simply calling the respective board and asking a question about a specific provider or looking up a specific treatment or ownership requirement in the statutes—any attempt to do so would be futile, as the answers don't exist. Further, we know from experience that the folks at the boards answering questions on the phone are, more often than not, wrong. The people talking to us (and you) on the phone at, say, the board of nursing, are not judges or lawyers, and they often do not understand the full picture. They also are not on the board and, therefore, cannot offer a binding opinion. The only opinions that are "binding" are those that have been published by the specific board, or that have been passed as a statute by the legislature or implemented as a rule.

In addition, the statutes, rules and opinions of the boards sometimes conflict. The board of nursing might say one thing, but the board of medicine might have a different view—and both can be overturned if they conflict with existing laws or rules. Often, neither one has any idea of the other board's stance and can be ignorant to the operation of medical spas. And even if they agree, their opinions on the phone aren't binding laws—the only way you'll get a binding decision is if you are investigated by board, a hearing is held and a formal ruling is issued.

Making the situation even more maddening is the fact that the boards offer new opinions, rules and guidance all the time, often without notification. So, when we draft a summary of the law in Oregon, for example, there may a new opinion or notice that comes out that no one has received word of. Boards often don't send out notice of their new opinions to everyone. The only way you'll know every update is if you're reading every opinion, rule and piece of guidance that comes out from every board in all 50 states (which our esteemed legal counsel, Patrick O'Brien, tries to do, I assure you). We have invested thousands of dollars in legislative trackers, alerts and contacts that we monitor, but sometimes updates occur that we don't learn about immediately. AmSpa employs a full-time attorney to ensure the summaries are as accurate as possible, and we also have a law firm working with clients nationwide who update us continually. But even then, it is literally impossible to know everything in every state at every moment. This is why we strive to keep an open dialogue with our members and ask that if you see anything in our state legal summaries that you think might be outdated (or inaccurate), please bring it to our attention.

Given all that, AmSpa has spent the last six years working our way through every state, reading every statute, rule, opinion and piece of guidance that we can find, talking with every nursing board and medical board multiple times (and often explaining to them what a medical spa is), conferring with multiple attorneys and consultants across the country, and then analyzing and synthesizing that information into guidance that ultimately becomes the legal summary.

We often provide information based upon other areas of medicine and other practice groups because, as mentioned above, very few states address medical spas specifically. Since all the information we gather from the various boards usually doesn't address the underlying question we're trying to ask, we, as attorneys, must take that information and draft a summary that we believe answers the specific medical spa-related questions at issue.

A few other things to note: First, we often have folks tell us, "Everyone in my state does it this way, therefore your summary must be wrong." This is a huge problem in this industry. Trust me—we know that there are many medical spas that don't follow the law. We know that there are many states where there is sparse enforcement of the law, leading to the sense that the law is inapplicable. We also know that there are very few attorneys or consultants nationwide who know the law, and often the advice being passed around in the industry is flat-out wrong. We have seen medical spas get in big trouble—loss of license, arrest, financial ruin—because they do not give the law the respect it deserves.

But let me be very clear, as this may be the most important advice I give in this blog: Just because every other medical spa is doing it one way, it doesn't mean that it is legal or that you won't get in serious trouble if you are caught. Think of it this way—1,000 vehicles cruise down a highway at 80 miles per hour in a 70-mile-per-hour zone without incident. You come along and do the same, and you get pulled over and receive a ticket for speeding. As unfair as it seems, we all know that pleading that "everyone else did it" is not going to save you. You got caught, you pay the ticket.

The same thing applies here, except that if you get caught, you might lose your medical or nursing license, have your business shut down or, in the worst circumstance, go to jail. And as a bonus, all the other providers in your business will likely get investigated too.

The fact is that most medical spas that get investigated and busted aren't intentionally breaking the law. They just don't know the law or are ignoring it because no one else follows it. But this is small consolation when the medical board shows up, and I promise that every medical spa that's been investigated wishes they had retained legal counsel prior to opening.

Second, as the industry develops, new situations come up that are very difficult—if not impossible—to evaluate from a legal risk standpoint. Nurse practitioners (NPs), for example, are gaining independent practice in most states. As such, they can often own their own practices regardless of medical ownership laws. They also can see patients, prescribe drugs, make treatment plans and perform virtually every medical spa treatment there is. This would seem to indicate that NPs can own medical spas or serve as medical directors, if not both. But it is not so simple. There are other laws and rules that come into play that make most attorneys very reluctant to advise NPs to use carte blanch in opening a medical spa. For example, while it is true that an NP can own their own NP practice (in some states, but not all), it does not necessarily follow that they can own a full medical spa. This is especially true when it comes to what the NP names the medical spa and how they promote it on the web and in social media. Most professional advertising laws (which NPs are unquestionably subject to), strictly prevent misleading statements. An NP can claim they own their practice, but it doesn't necessarily follow that they can publicly call themselves a "medical director" or publicly state that they own a "medical" spa. It seems insignificant, but I promise you it isn't. Most states haven't even begun to address these issues, but when they do, they won't care whether the law was clear in the beginning or not.

I write all this to hopefully convey that, even as an attorney, it is difficult it is to determine the law in a state where the information available is vague, outdated and difficult to understand, while at the same time the consequences for breaking that law—including suspension/loss of license and criminal liability—can be quite severe. AmSpa strives every day to offer the most up-to-date information for the industry. We thank you for your commitment to compliance and hope that our resources will be used to make the medical aesthetic industry safer and more reliable as we grow.

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