Navigating New York State’s Med Spa Compliance Rules

Med Spas have become an increasingly prevalent feature of New York State’s health and cosmetic industry. New York State does not offer a singular definition for Med Spa, rather it is described as a collection of medical and non-medical procedures that serve a cosmetic or aesthetic purpose. These businesses offer everything from laser procedures, facials, dermal peels, Vitamin infusions and IV therapy, Botox and other face fillers, cryotherapy, and prescription weight-loss medications (GLP-1). 

In New York, a med spas services may implicate the state’s strict corporate practice of medicine doctrine and other legal and regulatory obligations. Prospective owners should therefore evaluate New York’s ownership limits, professional licensing rules, facility-licensing requirements, scope-of-practice restrictions, and heightened regulatory enforcement prior to opening or operating a med spa.

This article summarizes the current legal landscape governing med spas in New York State, including who may own and operate a med spa, which procedures may be offered, who may perform such procedures, and which state agencies may exercise jurisdiction. 

Does New York State Issue a Singular “Med Spa License” to Prospective Businesses in Order to Operate?

New York State does not offer a singular, stand-alone med spa license, rather the applicable regulatory and licensure requirements are wholly dependent on what services the business provides, who provides them, and how the business is organized. The New York State Department of State (“DOS”) has expressly stated that businesses promoting themselves as med spas or that offer med spa services must be appropriately licensed as a medical practice or medical facility, with licensed professionals performing any such services. Depending on the services offered, businesses might be subject to approval by the New York State Education Department (“NYSED”), or the New York State Department of Health (“DOH”).

Which Services Qualify as “Med Services”?

Med spa services generally include cosmetic or aesthetic treatments and may involve medical judgment, licensed professional supervision, or regulated clinical procedures. Services are classified as medical or non-medical based on several factors such as invasiveness, consumer risk, injection use, and the licensure requisite training required to perform them. Less invasive and aesthetic procedures such as aroma therapy, body countering, hair and eyebrow services, waxing, dermal planing, and many others require only an appearance enhancement license issued by DOS, thereby bypassing approval from NYSED. More invasive or higher-risk procedures—including drug or filler injections (Botox), CoolSculpting, liposuction, cryotherapy, microneedling, laser treatments, plasma treatments, ultrasound services, vitamin and IV therapy, hormone replacement therapy, and weight-management medications—are classified as medical procedures and require ownership and supervision by a licensed physician, with services performed by appropriately licensed professionals. 

Who May Perform Services?

All treatments and procedures that require a license must be performed by licensed professionals in good standing in New York State. Physicians may order and perform any medical procedure, while mid-level practitioners and nurses may perform medical procedures under the supervision of a licensed physician. Note that the licensed professional must be qualified  to perform a given service and may not perform any services that are outside the scope of their current license. Prior to the provision of any services, physicians and non-physician practitioners should familiarize themselves with their scope of practice and respective responsibilities. 

Who May Own a Med Spa?

New York has long prohibited the unauthorized corporate practice of medicine. Education Law §6521 defines the practice of medicine rather broadly to include diagnosing, treating, operating, or prescribing for human disease, pain, injury, or physical conditions. Furthermore, the law expressly limits the practice of medicine to duly licensed practitioners authorized under Article 131 and in good standing under the laws of the State of New York.  

If a business offers or performs any of the “Medical Services” listed above, New York State law requires the entity to be wholly owned by one or more licensed physicians (MD or DO). Mid-level practitioners such as physician assistants and nurse practitioners cannot directly own an entity that offers and performs medical services. In addition to ownership restrictions, if an entity employs or contracts with mid-level practitioners or nurses to provide medical services, a licensed physician may have supervision responsibilities, as only licensed physicians and nurse practitioners with more than 3,600 hours of clinical experience may practice independently in New York State. 

What Type of Business Do I Need to Form?

New York State law requires all licensed professionals to form professional corporate entities if they wish to provide clinical services under their license and limit their professional liability. As such, licensed physicians wishing to offer med spa services must form either a professional corporation (P.C.), a professional limited liability company (PLLC), or a professional limited liability partnership (LLP). Your specific tax and ownership circumstances will dictate which entity structure is right for your business. 

If your business does not offer professional services, however, New York law permits the formation of general business corporations, limited liability companies, and limited and general partnerships.  Before forming your business, it is vital that you confirm the correct corporate structure to avoid unnecessary delays, liability exposure, license revocation, adverse tax consequences and potential sanctions. 

If I Am a Mid-Level Practitioner or Nurse, What Are My Options?

As discussed above, if a business offers and performs medical services to the general public, it must be organized as a professional entity and wholly owned by one or more licensed physicians. So, while mid-level practitioners and nurses cannot own and operate a medical practice directly, there are several potential options available that comply with applicable laws and regulations. 

If you are interested in forming a professional entity to provide med spa services, or if you are a mid-level provider seeking to affiliate with a med spa and need assistance or advice regarding entity formation, service and employment agreements, or help navigating the complex regulatory landscape in New York State, please contact my office at 518-694-5663 or via email at cgreen@oalaw.com. 

Disclaimer: This article is not intended to provide tax advice. We strongly recommend consulting with a tax professional prior to forming any legal entity in New York State.