This post in the Georgia Medical Spa Series focuses on 2 key considerations in an Advanced Practice Registered Nurse (“APRN”), such as a nurse practitioner, owning a medical spa. If you have questions regarding this blog post or would like to speak with counsel regarding opening your medical spa practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
- Corporate Practice of Medicine
Although surprising to most of our healthcare and business law firm clients, the corporate practice of medicine doctrine is not a major concern when analyzing how an APRN can properly own a medical spa. The corporate practice of medicine principles incorporated into Georgia laws and rules can typically be satisfied by a corporate and contractual structure that prohibits interference with the clinical judgement of a physician. For more information about the corporate practice of medicine doctrine as related to owning a medical spa in Georgia, check out our first Georgia Medical Spa Series post: Corporate Practice of Medicine Doctrine.
- Restriction on APRN Employing Delegating Physicians
The consideration that is more pressing is the laws and rules prohibiting an APRN from employing his or her delegating physician. Violating these rules could result in sanctions by the Nursing Board for the APRN and by the Georgia Composite Medical Board for the delegating physicians. O.C.G.A. § 43-34-25.
More specifically, the law and rules in Georgia provide that an APRN cannot “employ” her delegating physician. O.C.GA. § 43-34-25(n) (“[I]t shall be unlawful for a physician to be an employee of an [APRN] . . . if the physician is required to supervise the employing [APRN].”; Ga. R. 360-32-.04 (“[A] physician shall not be an employee of an APRN . . . if the physician delegates to and/or is required to supervise the employing APRN.”). The Georgia Composite Medical Board within its own meeting minutes and through private correspondence with our firm has reinforced the requirement that the delegating physician cannot be employed by the APRN that the delegating physician supervises. See April 2, 2020 GCMB Meeting Minutes. The Board has not clarified much about what the word “employ,” means however, which leaves some ambiguity about whether the delegating physician can properly serve in the capacity of an independent contractor. By definition, a true independent contractor retains control in the performance of the contractor’s duties (as opposed to W-2 employment, where, by definition, the employer controls) and, therefore, should be less likely to seen by the Board as problematic with respect to improper influence over the delegating physician.
Nevertheless, the Board’s guidance has not been perfectly clear as far as we are aware. In its July 2021 meeting minutes, the Board expanded the language around the rule by stating: “An NP cannot hire a physician who will be supervising them.” The question presented to the Board was: “In case of APRN owned practices, will having the physician hired under a contract suffice? Are there particular specifications or limitations to consider?” The Board did not address the question around terms of a contract, focusing instead only on the fact that an APRN cannot hire or employ her delegating physician. Although the question was about physician assistants (PAs) and not APRNs, on October 7, 2021, the Board responded to a request for clarification by stating that a “PA cannot have majority ownership of facility. PA must have minority ownership of facility if supervising physician is hired. Roles of each party involved need to be clearly designated.” The PA rules are almost identical to APRN rules, so it is likely that the Medical Board would apply similar analysis to the same question involving an NP.
This subject appears to be a developing area. What we know now is that the Board finds it violates the rules to employ or hire your delegating physician and, when asked about avoiding violating through contract, the Board declined to comment. As such, there may be multiple ways to set up an APRN-owned medical practice, each with its own level of risk if the practice has to hire a delegating physician.
If you have questions regarding this blog post or would like to speak with counsel regarding structuring your medical spa practice, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.