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The Legalities Behind HIPAA and Social Media

Posted By Administration, 8 hours ago

social media

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

A well-executed social media campaign can be extremely beneficial to a medical aesthetics practice. Millions of businesses use social media channels—such as Twitter, Facebook and Instagram—to increase their brand awareness, and successful social media campaigns can help build strong bonds between practices and their patients.

Unfortunately, medical aesthetic practices and medical spas are particularly susceptible to certain types of social media violations that can attract the attention of the federal government, and investigators will not care whether or not you were aware of these transgressions. You must educate yourself about what you can and can’t post on social media channels to stay on the right side of health care privacy laws.

Understanding Your Identity

It’s important that medical aesthetic and medical spa physicians, owners and operators understand that these practices are, in fact, medical institutions—unorthodox medical institutions, certainly, but medical institutions nonetheless. However, they exist in an unusual market. The services they offer are elective, so they typically market themselves in ways that traditional health care outlets do not. They often present their services as commodities, in much the same way as outlets such as traditional spas and salons do. And because the medical aesthetics market is expanding, there is a great deal of competition for a prospective client’s attention, so marketing campaigns need to be cost-efficient and effective.

This is why many medical aesthetic practices and medical spas turn to social media to help publicize their businesses. However, it is shockingly easy for such a practice to expose itself to patient privacy issues with even the most harmless-seeming social media activity.

An Introduction to HIPAA

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a piece of legislation that regulates the many ways in which the business of health care is conducted in the United States. Since its adoption, however, it has become virtually synonymous with the issue of patient privacy. HIPAA’s Privacy Rule prohibits medical institutions from sharing protected health information, which it defines as anything that can be used to identify a patient. This includes any information at all that could possibly reveal the identity of the patient—his or her e-mail address, street address, name, birth date, Social Security number, etc. All this must be kept completely confidential.

If a medical institution is found to have violated HIPAA, it may be subject to very substantial fines—sometimes hundreds of thousands of dollars per violation. Additionally, many states enforce even stricter patient privacy statutes, so medical institutions must go to great lengths to ensure that absolute patient privacy is observed at all times.

See No Evil

There are three major ways that medical aesthetic facilities and medical spas often violate patient privacy laws on social media without even being aware of it.

1. Publicly reaching out to a patient. If you are connected with clients via a social media channel, such as Facebook or Twitter, it might seem like a good idea to reach out to them after a visit to publicly thank them for coming in. Ideally, this could build a relationship with these clients and entice their friends to follow suit. Unfortunately, this seemingly innocuous act may constitute a violation of HIPAA (and possibly a gaggle of state laws), because you’re revealing that person is one of your patients.

You can still thank your patients via social media; however, you just need to be very careful about how you go about doing it. Consider reaching out to your patients using the private messaging feature of whichever social media platform you are using. You will not be able to reach your client’s friends, but you’ll still strengthen your relationship with your client. However, as any number of disgraced celebrities will tell you, it’s very easy to post something to the public that you intended to keep private. Use extreme caution if you decide you want to attempt this.

Also, if you’re starting a Facebook campaign, establish a fan page rather than a standard user page. That way, your facility’s followers won’t be visible to users.

2. Publicly responding to a positive comment from a patient. Let’s say that one of your clients posts the following on your practice’s Facebook wall: “Had a great Botox treatment here today!” You may be inclined to post a response, such as: “Thanks! We hope to see you again soon!” However, it is important to understand that even this can represent a breach of a patient’s privacy, since you’re confirming that your practice provided the customer with treatment.

This is an emerging legal issue that has yet to be put to the test by litigation, and it could be argued that, by publicly posting that message, the patient is tacitly waiving his or her HIPAA protection. Unfortunately, HIPAA and other state-based privacy laws are very strict, so it’s probably not a good idea to test them.

You can attempt to avoid falling into this trap by stating on your social media channels that, although you appreciate all comments, the best way to deliver them is via e-mail or to call the practice directly. If you do this, you can avoid appearing unappreciative and reduce your potential exposure to patient privacy violations. Alternatively, you can try to draft a form that acknowledges that a patient who signs it wishes to waive his or her HIPAA protection for social media; however, this form would need to be very complex in order to stand up to legal scrutiny.

3. Responding to negative reviews. Yelp is a social media service that allows users to rate the experiences they have with businesses. As of the fourth quarter of 2015, more than 86 million unique visitors per month use mobile devices and 75 million unique visitors per month use desktop computers to refer to Yelp’s more than 95 million user-generated reviews, so make no mistake: This service is immensely powerful. The success or failure of businesses can be determined by their Yelp reviews alone.

This can empower ordinary people and, ideally, lead businesses to provide exceptional service to everyone. Yelp even encourages the businesses that are critiqued to become part of conversation, allowing owners and operators to respond to reviews and engage with users.

Unfortunately, Yelp’s enforcement of its user content guidelines is spotty, so it can have a dark side for businesses. Some reviews are unfair, made by people who have ridiculous expectations or axes to grind. Additionally, some Yelp users post negative reviews if they aren’t allowed to pay the prices they want to pay for products and services, regardless of whether those prices are reasonable. And those negative reviews can impact prospective customers—even if a business has a preponderance of four- and five-star reviews, readers are often compelled to peruse the handful of one-star reviews for entertainment purposes or to familiarize themselves with the worst-case scenarios.

Most businesses have recourse for dealing with problematic Yelp reviews—they can openly engage critical users using the service and attempt to demonstrate that they’ve done nothing wrong. The owners and operators of medical aesthetic practices, however, absolutely cannot respond to these posts, because if they do, they could identify unhappy users as patients, thereby violating patient privacy statutes.

The best way for medical spas to combat bad Yelp reviews—the only way, really—is to encourage satisfied customers to post positive reviews. Unfortunately, this means that you’re essentially asking customers to work to promote your business for free, but there is little else that can be done to address the situation without violating patient privacy laws.

Given the importance of Yelp and the lack of a level playing field regarding its reviews, the owners and operators of medical aesthetic facilities may be tempted to engage in what is known as “astroturfing”—using employees or associates to post fake positive reviews in order to bolster ratings. However, they must resist that urge, as astroturfing can be interpreted as consumer fraud. New York state regulators recently issued enormous fines to several facilities for astroturfing.

The Final Word

Social media can be a valuable tool in the promotion of a medical aesthetic practice, but its use can also be fraught with peril. Owners and operators of these practices should make sure that everyone involved in their social media campaigns—as few people as possible, ideally—understands that it is critically important that patient privacy be respected at all times. Few practices can survive the penalties associated with these violations, so they must be avoided at all costs.

Tags:  Business and Financials  Med Spa Law  Med Spa Trends 

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QP Extra: Q&A with Matt & Kathy Taranto of AesthetiCare Medspa

Posted By Administration, Friday, July 19, 2019

matt kathy taranto

AesthetiCare Medspa is among the more successful medical aesthetic practices in the Midwest—it is so successful, in fact, that owners Matt and Kathy Taranto also operate an aesthetic medicine consulting business, MINT Aesthetics. The Tarantos their staff have been providing a wide variety of aesthetic treatments to the residents of eastern Kansas for over 18 years, and they recently spoke about their history in the industry and keys to success with AmSpa Content Writer/Editor Michael Meyer for the inaugural issue of QP.

Michael Meyer: What inspired you to open your practice?

Matt Taranto: I had been in the industry for about six years, starting in the mid '90s, and back then, all the equipment companies used independent reps—they didn't use employees. I was an independent rep, and I sold a variety of lasers, microdermabraders and skin-care products in a six-state region in the Midwest. After doing that for a while, in 2001, I decided to open AesthetiCare. At that time, the main reason was I realized that every equipment company sells the best of everything and all the reps base their sales pitches on what the company tells them. And I thought, man, I'd have a lot more credibility I actually used if the things I was selling every day in a clinic and I could tell my equipment clients, “I'm not just telling you what the company tells me to say. I'm telling you what we see in our clinic every day.” So I really opened it up to be a model for my equipment. But what ended up happening was I really liked the clinic a lot and started focusing more and more time on it. So instead of just turning out to be a small little model where we used equipment, I decided to really focus on it and make it something special.

MM: What is different about your practice now versus when you opened it?

MT: Everything. I opened at 1,000 square feet and we now have 11,000 square feet. I opened with three treatment rooms and we now have 18 treatment rooms. I opened with two employees and we now have 26 employees. What happened is once we saw that we were able to make it grow, we decided to kind of pivot from what we were doing with the equipment sales and really focus more on utilizing our experience in growing a successful clinic to helping clinics all over North America realize their potential, and so we started doing a lot more business consulting using AesthetiCare as a model. We are now on our fourth physical location—we started in 1,000 square feet, we expanded to 2,200, then we expanded to 4,000, then we expanded to 6,000, and now in the same 6,000-square-foot space, we've added another 5,000, so we're up to 11,000 square feet. It's been 18 years now, and we've actually never had a year where we have not grown by at least double digits. The thing we're most proud of is we've always had this steady increase, and hopefully we'll continue to do that.

MM: What's one word you would use to describe your medical spa journey?

MT: I would say “educational.” I've learned a ton.

Kathy Taranto: I would say “passion.” It's something that I've found joy in every single day. It's one of those things where you continue to love it. Why wouldn't you continue to grow and enjoy it?

MM: What is your most popular treatment? Which is the one that brings in the most revenue?

MT: There are basically three treatments that we look at that make up about 65% of the revenue, and they're all pretty equal. CoolSculpting is one of them. Forever Young BBL and Halo, which we do a lot in combination, is another one. And then neurotoxins and fillers. Each one of those three brings in $1 million or so a year in revenue. The other 40% of revenue is made up from a ton of different things that we do. We have a very large menu. But those three are pretty equal as far as revenue goes.

MM: What do you think is the most important factor in your success?

KT: I really feel like it's the culture. I feel like when you create an environment that your team wants to thrive in, they want to build their own careers within your practice. Matt started the clinic before we were together, and so that was already created when I came on board. It's something that we really strive to continue with every single day, having a space that our team loves, and then that just feeds out into our patients or our client base.

MT: Right. Without a doubt, it's your team and staff. Like Kathy said, we want our staff to love their job. And the way that we do that is we pay them more than anybody else pays them. We spend more money on advanced training than any clinic I've ever seen. And we try to remind ourselves, you know, we're not curing cancer here. This is not a life-or-death situation. We should have fun. We laugh a lot and hug each other a lot and just create this environment where we just don't have turnover. Turnover is so expensive, and so many clinics don't realize that. When you lose a good provider, you don't replace that provider the next day. It takes probably a good two years to replace a really good provider. So Kathy and I both just focused on making sure that we treat our staff incredibly well. We treat them like family—like we would want to be treated. And the result is they just don't leave. We create these wonderful long-term relationships with them, and them with our clients.

KT: Because we not only have our clinic, but also have an aesthetic consulting business, we're exposed to so many other clinics and their culture, or lack thereof. One of the things that I can instantly tell is when they're afraid of the owner or afraid of the doctor or they're really not friends. It's like they just go to work. It's just this constant reminder of how important that is—this fun culture that you create at work.

MM: What makes your medical spa different from others?

MT: We have 55 aesthetic centers in a 15-mile radius of us, and we have a staff meeting every other week and we talk about that—how can we be different? What can we do? Because we're not going to be different because we offer Botox or CoolSculpting. Everyone and their sister offer that. So what makes us different? I think it's the focus that we put on customer service. We want people bragging about AesthetiCare they way they brag about Nordstrom or Disney or Ritz Carlton. But the biggest thing, as she said, is that we've trained and consulted with over 1,200 clinics, and we invest more money into advanced training for our staff than any clinic we've ever seen, because to us, it's common sense. The more we invest in them, the better they get at their treatments; the better treatments they give, the happier clients they have and the more referrals they get. I really think that focusing on an extraordinary level of customer service and making sure our staff is better trained than any of our competitors are so important to us.

aestheticare

MM: What specific metrics do you use to determine success?

MT: We can look at our financial statements and see what percentage of every dollar goes to payroll, cost of goods sold, marketing, benefits, insurance, things like that, and really making sure those things stay in the zone that makes us profitable. But the other thing is really measuring your staff. For each of your providers, you should look, at every month, how much revenue are they producing, how much revenue they're producing per hour, and where that revenue coming from. It's a combination of treatments and products, and what is that ratio? We really strive to do 15 to 20% of our gross revenue in retail products.

We also look at price integrity. We work with a lot of clinics who say, “We charge $13 per unit for Botox.” Then, when we do the math of what they've actually taken, we realize they charge $13, but they're only getting $10.50 because they put it on sale all the time or they're giving freebies. We really try to make sure that we have price integrity. Every month, we give all our providers a sheet showing what they produced, how that compares to the year before during the same time period, and how that stacks up against their peers. Why is the top nurse doing better than the bottom nurse? Why is the top aesthetician doing better than the bottom aesthetician? What can we learn from that?

KT: I think too, it comes down to not just the money side, but back to the fulfillment side, in terms of success—what fulfills each one of our providers? What kind of personality do they have? What fulfills us on a regular basis? It's looking at that joy you find at work—is our team happy? Do they stay with us? And looking at our turnover, or the lack thereof, I think really helps to speak to that as well.

MM: What do you love most about aesthetics?

MT: I think it's so amazing to have a career where, when you tell people what you do, they want to talk about it in detail. If I sold life insurance, nobody's going to really want to talk to me about my career that much. And nothing's wrong with that job—it's just not the most fascinating job. When I tell somebody I'm in aesthetics, man, they want to talk about it. And I love the fact that I work in a field that people find intriguing.

KT: I think for me, it is the interaction with our clients. I understand we're not curing diseases, and you don't need the treatments we offer, but these improvements you make in their skin build their confidence, and you get to know them over months and years, and you get to know their families. The connection with people is something that I've always loved within the industry. Whether it's with our patients at AesthetiCare or our clients at MINT, having that personal relationship with them is always something that I've loved.

MM: What advice would you give to other medical spa owners?

MT: The best book I ever read about business is The Customer Comes Second [by Hal F. Rosenbluth and Diane McFerrin Peters], and that book is all about how you make your staff your number-one priority. If you're going to own a business, with the financial risk and time commitment, your goal is to develop something that isn't dependent on you. The whole idea of creating a great team is that this place can run when Kathy and I are gone. And so I would say my number-one tip is make your staff your number-one priority. Number two sounds silly, but it is do everything you can to make it fun. Enjoy it. We spend too much time at work to look at it as a chore. We have a choice every day when we walk through the door—what type of attitude are we going to bring to the workplace? And if we're going to put in our 40, 50, 60, 70 hours a week, man, let's laugh a lot. Let's joke around a lot. Let's have some fun. I think when you combine those two things, it's a good recipe for business.

KT: I definitely agree. I think the other thing that I commonly see that I feel like we're always helping our consulting clients with is just looking at their numbers. For me personally, the team and the fun and all that comes more naturally. The numbers, for me personally, don't come as naturally, which is great because it does for Matt. But most people don't have a Matt and Kat—they have just one person who owns the clinic, and maybe they have a manager and maybe they don't. And so they just tend not to really look at their numbers. They don't have anybody to help them with their numbers. And then they come in here and they're shocked to see they're not making money. Take a look at your numbers. Find somebody that can help you or pay somebody to do it for you, but really take a close look and understand where you are with that.

MT: I think Kathy has a good point—understand your business. I think one thing we see, to that point, is that so many of these clinics are owned by a doctor who also has a medical practice. It might be a derm or plastic or whatever, and their medical practice may be doing very well. They lump all those numbers together and say, “Oh yeah—we're doing pretty well.” Then, when you break out the aesthetic number that the medical practice is supporting, your aesthetic practice is actually losing money, and it's eye-opening.

Also, one thing we get a lot in this day and age is people saying, “Oh man, there's so much competition. So many people are doing it, I don't know if I should do it. Is there enough business?” Never worry about competition. We've worked with over 1,200 clinics; I would tell you 80% are never going to get the right way to do this business. It'd be great to have a goal to be the greatest med spa in the world, but be the greatest one in your geographic area—maybe a 10- to 15-mile radius of you—and that's doable. When the number one procedure in the United States is Botox and only 3% of Americans have ever tried Botox, there's a lot of room for growth.

AmSpa members receive QP every quarter. Click here to learn how to become a member and make your med spa the next aesthetic success story.

Tags:  Business and Financials  Med Spa Trends  QP 

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Critical Financial Numbers You Must Know

Posted By Administration, Thursday, July 18, 2019

financial meeting

By Terri Ross, Terri Ross Consulting

In order to maximize the profitability and success of your office, you need to take an accurate and realistic snapshot of where you are by the numbers.

  • Do you know your return on investment for every procedure and treatment you offer?
  • What percent of patient leads do you retain?

Patient retention is directly linked to how well your front office staff listens, engages and responds.

In order to become a top-performing practice, every working part of your office—the staff, systems, processes and protocols—must be performing at optimal speed. Be diligent and organized in your record keeping. Take a quarterly snapshot of your office. If you know where you are, you can make a sustainable plan for future optimization and growth.

Here are the key numbers you need to know.

Budget

  • Startup costs: Property, building, equipment, technology, staff and marketing all go into startup costs.
  • Payroll: When your business is off the ground, payroll makes up a large part of your bottom line. Know how much you pay your personnel in wages, taxes/insurance and bonuses throughout the year.
  • Equipment: This includes initial cost, maintenance and materials required to run, update and optimize equipment.
  • Marketing: Any expense targeted towards attracting new patients falls into this category, from pamphlets to website development and networking events.

Return on Investment (ROI) = (Gain – Cost) / Cost

  • Procedures: Know how much every procedure costs you to perform, including supplies, time and personnel involved. Your potential gain per procedure is based on these expenses.
  • Technology: Know how much a piece of new equipment costs to acquire and maintain. You’ll need to include maintenance and supply costs in your calculations of ROI for every piece of equipment in your office.
  • Marketing: Knowing your ROI on marketing strategies allows you to quantitatively measure how successful a specific marketing tactic is. Know how your patients found your office and why they return—online marketing, networking at the right events, etc. Read more about how to calculate your marketing ROI in this article from Forbes.
  • Website position: Know the numbers behind your website—how many people visit the site per day, what pages they go to and stay on, and what your bounce rate is, and modify from there.

Rates

  • Conversion/close rate: How many prospective patients do you land? How many are retained as long-term patients?
  • No-show/cancellation rate: On average, how many patients make an appointment and don’t show or cancel in advance?
  • New patient rate: The number of new patients you bring in per month and year.

Room Revenue Assumptions

  • Number of rooms: The total number of procedure rooms.
  • Hours of operation: How many days are you open?
  • Average treatment price: Taking an average of all procedures offered, what is your average price?
  • Average length of procedure: On average, how long do your procedures take? This includes operating preparation.
  • Treatments per day: How many treatments do you complete per day? Are any days busier than others?
  • Revenue per hour: Based on the numbers above, what is your average revenue per hour?

Goals

  • New patients: Set a goal for the number of new patients retained per quarter. Using the LAER model I developed, you can train your staff to engage, respond to and retain patients.
  • Revenue: Based on where you are, what is your projected revenue? Set your revenue goals and make the necessary changes (processes, protocols, staff) to get there.
  • Revenue per hour: To reach your revenue goals, how much do you need to generate per hour? An average room should do between $600 and $1,000 per hour.
  • Price strategy (vs. competitors): Based on your current and desired revenue—and keeping competitor pricing in mind—develop an informed and realistic price strategy.

How does your office look by the numbers? Do you have attainable revenue goals and the infrastructure, protocols and staff in place to get you there? Click here to download the assessment and complete Terri's 10-point checklist.

Terri Ross brings more than 20 years of sales and management experience to the field, having worked with leading-edge medical device companies such as Zeltiq, Medicis, EMD Serono, Merck Schering Plough and Indigo Medical; a surgical division of Johnson.

Ross’ vast knowledge and experience as a sales director managing upwards of $20M in revenue and successful teams has allowed her to become a renowned plastic surgery management consultant helping aesthetic practices thrive.

To optimize revenues and business performance, Ross’ practice management consulting services help physicians evaluate practice processes including, but not limited to, overall-operating efficiencies, staff skill assessment, customer service and operating efficiency strategies. The goal is to develop a comprehensive plan of action to improve productivity, quality, efficiency and return on investment.

Tags:  Business and Financials  Guest Post 

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Are You Lost in the Scope of Practice Decision Tree?

Posted By Administration, Wednesday, July 17, 2019

nurse consultation

By Patrick O’Brien, JD, legal coordinator for the American Med Spa Association

In many states, it can be a challenge to determine what specific interventions and tasks are within the scope of advanced practice registered nurses, registered nurses and licensed practical nurses. Often, the statutory scope of practice on which the nursing board relies is written in vague and general terms, such as “promoting health,” “providing care and support” and “acquired through educational preparation in nursing.” To provide additional guidance, many nursing boards have adopted the Decision-Making Framework promoted by the National Council of State Boards of Nursing (available here). However, when you reach out to these boards seeking additional guidance, they will ask you to work through the framework to answer your own question.

While the decision tree can be helpful in reasoning through a nurse’s scope of practice, it often raises more questions than it answers. This is especially true for nurses who practice in medical spas and the aesthetic industry, since the procedures they are asked to administer are often very different from what is considered the “traditional” practice of nursing. For example, in the second question the framework asks if the task is “consistent with evidence-based nursing and health care literature,” but it does not provide information about how much evidence is needed or which publications are acceptable sources. Similarly, the fourth question asks about “necessary education to safely perform the activity,” but again, how do you know if you have enough education about the procedure? Is a weekend course enough, or do you need something that lasts a week or semester?

Fortunately, the Oregon State Board of Nursing recently provided a very helpful interpretive statement on cosmetic procedures. Interpretive statements in general aren’t unusual, but what makes this one unique is that the board walks through and discusses the issues and reasoning for each question in the decision framework as it pertains to procedures a nurse could perform in a medical spa. We won’t review the whole statement here, but we want to point out some of the more interesting points in the board’s analysis.

  • Is the role, intervention or activity prohibited by the Nurse Practice Act (NPA) and Rules/Regulations or any other applicable laws, rules/regulations or accreditation standards? In addressing the first question, the board makes it clear that nurses don’t operate on their own and can only accept procedures when they are ordered by licensed independent prescribers. The board also looks not only at the NPA, but also at the medical practice act and health authority laws, as well as the interpretive guidance from those organizations in answering this step.
  • Is performing the role, intervention or activity consistent with professional nursing standards, evidence-based nursing and health care literature? Here, the board gives some qualification to what sort of literature is acceptable. They point to guidelines from specialty nursing associations as well as peer-reviewed publications. Therefore, information in newsletters and trade publications likely is not going to be sufficient.
  • Are there practice setting policies and procedures in place to support performing the role, intervention or activity? For this question, Oregon discusses additional aspects of what constitute appropriate policies and procedures. Its main points are that the nurse has a professional responsibility to practice according to the board’s standards, and the facility policies and protocols cannot force them to practice outside of those standards. This includes refusing to accept a delegated procedure that the nurse deems unsafe.
  • Has the nurse completed the necessary education to safely perform the role, intervention or activity? The board agrees that there is rarely an identified educational standard for medical spa procedures. However, the burden falls on the nurse to show that the education he or she has received is sufficient. For non-ablative procedures, the Oregon board sets a minimum of 40 hours of laser education from the American National Standards Laser Safety Education Program.
  • Is there documented evidence of the nurse’s current competence (knowledge, skills, abilities and judgment) to safely perform the role, intervention or activity? The board stresses the need for nurses to maintain records of all their education and other methods they used to acquire competency in a procedure. While it may seem like a tedious requirement, these records will be critical information if the nurse ever needs to respond to a complaint.
  • Would a reasonable and prudent nurse perform the role, intervention or activity in this setting? This is the most uncertain question. After all, what constitutes a reasonable and prudent nurse? Here, the board interprets this question to mean a prudent nurse would be one who can answer “yes” to questions 1 – 5.
  • Is the nurse prepared to accept accountability for the role, intervention or activity for the related outcome? The final step in this framework is simply reminding the nurse that he or she has accountability for performing the procedure and its outcome. The nurse’s willingness to accept the responsibility is not a scope of practice issue, but it does serve as a final check in determining answers to scope of practice questions. If the nurse chooses to decline, it probably means that one of the previous questions was not answered clearly in the affirmative.

Now, obviously, this analysis is specific to Oregon and won’t apply completely to your state. It does, however, provide insight into how your own state’s board might navigate this decision framework. Finding answers about the legal aspects of the medical aesthetics industry and educational issues can be daunting. AmSpa members can check their states’ legal summaries to determine if a procedure falls within their statutory scope of practice. However, nurses still will need to examine their own educational backgrounds and the practice setting to determine if the procedure is within their personal scope of practice.

Tags:  Compliance is Cool  Med Spa Trends 

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What You Need to Know About Patient Charting

Posted By Administration, Monday, July 15, 2019

patient charting

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

Medical aesthetic practices and medical spas are medical facilities, so they are subject to the rules and regulations that govern more conventional medical practices, such as doctor’s offices and hospitals. Among these is the requirement to keep detailed medical records for all patients. And although it might not necessarily seem crucial for a medical spa employee to record every interaction with every person seeking a Botox injection, meticulous charting can be a practice’s best defense against unwarranted legal action and unforeseen complications. Read on for a quick primer about what should be expected of patient charting in a medical aesthetics environment.

Charting Basics

A properly maintained medical chart should contain the full story of each patient encounter—who the patient is, why he or she came in, what the diagnosis was, and what the plan of care is. It is critical to ensuring continuity in patient care.

“Professionals need to open up that medical record and be able to discern all the relevant information that they’re going to need in order to make an informed decision as to the course of treatment for whatever the patient approached them for,” explains Jay D. Reyero, partner with national medical aesthetics law firm ByrdAdatto.

Many state medical boards have rules that dictate what an adequate medical record should contain and, while there may be some differences in minutiae from state to state, these guidelines tend to include certain items—the patient’s history, identifying information, the diagnosis, supporting documentation, signed consent, any prescriptions given, and any referrals or consultations provided. In addition, many medical practices have their own statutory requirements for patient charts; reviewing some of these can also provide an idea of what a well-maintained medical record should contain.

At the end of the day, a patient chart will likely reflect the administering physician’s professional medical judgment. If he or she deems the information relevant, it will be added to the record. However, certain common omissions make charts significantly less useful, from both legal and patient care perspectives.

Coming Up Short

The lack of documentation of informed consent is one of the primary shortcomings in many medical records. Generally speaking, physicians need to show that they have followed the standard of care by fully informing a patient about the risks and potential complications of the course of action they are recommending.

“It [documentation of informed consent] is critical to defend yourself,” Reyero says. “Whether it’s malpractice litigation or a medical board complaint issue, those are the most important documents that you’re going to want to have to show that you advised the patient, as much as possible, as to what they were going to do, and that they actually consented to the procedure being performed.”

Additionally, lack of supporting documentation for diagnoses or treatments administered can impact reimbursement, since the physician cannot corroborate the codes that are being billed to the insurance providers.

Many physicians and mid-level practitioners also fail to properly document their supervision and oversight over non-licensed professionals to whom they have delegated treatments. This information demonstrates that the proper steps have been taken for all procedures that have been performed, and the lack of it can be a major red flag if something happens to go wrong with a treatment.

For more guidelines regarding what legally needs to appear on patient charts in your state, consult an experienced local healthcare attorney.

For Your Eyes Only

In medical aesthetic practices, it is typical that both licensed medical and non-medical personnel work with patients. However, due to the privacy protection required by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), some of the information on patient charts must be withheld from the non-medical personnel at the practice.

“HIPAA generally allows workforce members who are employees of the entity [medical aesthetics practice] to have access to patient records, although the entity does have to have proper policies and procedures in place to limit the amount of information accessible by those individuals to what’s known as the minimum necessary,” Reyero says. “Essentially, employees should only have access to information that is necessary to do their job or practices can be exposed to risk. Improper access by employees to information that they don’t otherwise need access to can give rise to HIPAA breach issues. You see that a lot with the celebrity HIPAA breaches, where employees who have no relation to the treatment or care given to a celebrity access their information, and the hospital or facility didn’t have the proper policies or procedures in place to prevent that from occurring.”

State laws regulating patient privacy may be even more stringent than HIPAA, so it is important for medical aesthetic practices and medical spas to establish policies and procedures to prevent employees from accessing information that they do not need. If a practice is using electronic medical records (EMRs), the system can typically restrict access to certain information for users who do not have authorization to view it. If you do not know if your system includes such features (or if you do not know how to use them), consult your EMR vendor to learn how to set them up using your information technology infrastructure.

If your practice does not use an EMR system, it is critical to establish strong internal procedures and the proper training of employees to make sure that everyone is aware of the roles and responsibilities of everyone involved. The practice must also continually update and assess the risks of employees improperly accessing confidential medical records, and it must implement appropriate safeguards in order to prevent that access.

Regardless of the system being used, the practice must hold employees who improperly access confidential medical information accountable. HIPAA and state patient privacy violations can alter a medical aesthetic practice forever, so it is critical that they be prevented at all costs.

Closing the Communication Gap

The issue of maintaining communication about a patient’s history goes beyond HIPAA, however—it is about doing what is right for the patient. So how should medical and non-medical personnel, both inside and outside a medical aesthetic practice, maintain meaningful communication regarding a patient’s history? The best way to do this is to have very clear policies and procedures regarding the tracking and documentation of information within patient medical records, so that the next time a provider has access to that information, it is clear what courses of treatment were offered or accepted following a consultation with a physician.

“Having a very clear set of initial questions, whether that’s on the initial patient examination when it’s their first time at your practice or a set of follow-up questions when it’s a follow-up appointment, can address some of those concerns and find out if the patient has undergone any procedures recently. Have they taken any supplements? Have they received any injections? Those sorts of questions that can determine a different set of care that you’re going to have to give,” Reyero explains. “It’s communicating with the patient up front, making that part of your process of intake with the new patient or the follow-up patient, and then making sure that you cover all your bases. The goal is to get them to talk to you about what they’ve been doing or if they’ve had any changes in their medical history since they last visited you.”

Policies and procedures for patient charting should be developed internally by licensed medical professionals who are familiar with using and maintaining informative medical records. Then these charting guidelines can be incorporated into the environment of the medical aesthetic practice or medical spa.

“Training can take the form of a lunch meeting where everyone is going over what the policies and procedures are and asking questions, or online questionnaires where you print out a certificate at the end of the test, or one-on-one training where you sit down with the individual and you walk through their daily routine and make sure that everything that they’re doing is in line with the policies and procedures in place,” Reyero says. “You can customize it to each individual employee’s relevant situation and circumstances, so that when you walk through their daily routine, you’re being sure that you’re talking about the policies and educating them about the policies that will impact them on a daily basis, and not overwhelm them with 20 different policies when maybe only two are applicable.”

Writing the Story

Those who create and maintain medical records have a duty to make sure that the information on a patient’s medical chart is complete and accurate, so that there is no potential for the disruption of care that might be given in the future. A physician who opens up that document should feel like he or she has all the information needed to make an informed decision. A medical record should tell a patient’s entire story, because ultimately a physician’s job is to make sure that story continues.

Tags:  Med Spa Law  Med Spa Trends 

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California RN Board Holds Enforcement Webinar

Posted By Administration, Friday, July 12, 2019

sad nurse

By Patrick O’Brien, JD, legal coordinator for the American Med Spa Association

This past Monday, July 8, the California Board of Registered Nursing presented a webinar on the enforcement and intervention programs of the organization. The webinar covered multiple topics, but covered in most depth the process of coming under investigation and some of the aspects of the disciplinary process. While this information applies to just one professional board in one state, professional boards in all states have some type of enforcement and intervention program. Additionally, the California Board of Registered Nursing is the largest nursing board in the country, and it often serves as a model for other states to follow.

The disciplinary and enforcement process begins with the board receiving a complaint. Complaints can be made by anyone, including people who remain anonymous. The board also can become aware of issues through arrest reports from law enforcement agencies.

According to the board representatives, most complaints fall into three main categories.

  1. Substance abuse issues. The largest of the three categories includes issues that originate from DUIs and drug-related arrests, people filing complaints, and nurses referring themselves to the board. In the case of an arrest, the board is able to pursue disciplinary actions with or without a criminal conviction. Depending on the nature of the complaint, the board may offer the nurse the opportunity to voluntarily enter the intervention program as an alternative to the formal discipline process.
  2. Behavior-related issues. From the board’s description, this is the most varied category, but all offenses involve a failure to meet the standard of nursing care. These violations range from errors in performing nursing tasks to improperly dispensing drugs, as well as patient abandonment.
  3. Issues related to fraud and dishonesty. These types of violations include pre-filling patient charts, documenting activities not actually done, and altering or falsifying medical records to cover up or hide mistakes.

Since the largest category of investigations involves substance abuse issues, it is not surprising that a major portion of the presentation was dedicated to aspects of the board’s intervention program. In this program, nurses experiencing substance abuse or mental health issues can get support and help to work their way back to practice. Nurses may self-refer to the program or be referred by the board as a result of a complaint. While a nurse participates and progresses in the program, the board will refrain from imposing disciplinary actions on him or her. The intervention program includes clinical assessment and treatment, random drug testing, participation in a nurse support group, and an appropriate 12-step program. However, the board stressed that the intervention program is intended as an alternative to discipline. Nurses who decide to enter the program must surrender their licenses until they complete the program, and those who leave the program early or are not compliant with the requirements may be subject to further investigation and formal discipline.

The types of discipline available to the board range from issuing citations and fines to revoking or suspending the nurse’s license, as well as placing him or her in question on probation. If you are interested in watching the webinar, the presenters assured attendees that a recording would be made available on the board’s website in the coming weeks. Fortunately, the board’s website does currently have a number of resources related to enforcement and intervention.

Even if you are not in California, every person should be familiar with their state’s professional license discipline and intervention process. Maintaining a high level of professional conduct is important both for public safety and for the credibility of your profession. You also may find that your board is able to provide assistance to yourself or a colleague before a small issue becomes a big one.

Tags:  Med Spa Law  Med Spa Trends 

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Join AmSpa at the Seattle Medical Spa & Aesthetic Boot Camp

Posted By Administration, Thursday, July 11, 2019

motif seattle hotel

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

Starting next Saturday, July 20, AmSpa will host its Seattle Medical Spa & Aesthetic Boot Camp at the Motif Seattle Hotel. We’re extremely excited for the opportunity to help medical aesthetic professionals in the Pacific Northwest develop their practices, and we can’t wait to visit the Emerald City for the first time. There’s still time to register for the event—just click here to sign up.

Here is a quick overview of the program:

Saturday, July 20

The Boot Camp begins at 8 a.m. with a continental breakfast, followed at 8:30 a.m. with my opening keynote. From there, we will move into the main program:

  • 9 – 10:30 a.m.: The Plan, presented by Bryan Durocher (Durocher Enterprises)—What are the most effective ways to develop a business plan for your medical spa? Medical Spa Consultant Bryan Durocher discusses the ins and outs of the planning process and helps determine how long it realistically takes to open a practice.
  • 11 a.m. – 12 p.m.: The Lessons, presented by Louis Frisina—Every medical spa is different, but the successful ones share several common traits. In this session, Business Strategy Consultant Louis Frisina discusses the qualities that are typically found in practices that bring in a significant amount of revenue.
  • 1 – 1:30 p.m.: Medical Aesthetic Hot Topics Panel, featuring Tim Sawyer (Crystal Clear Digital Marketing), Shawna Wiesner (Environ Skincare) and Terri Ross (Terri Ross Consulting)—This panel, moderated by yours truly, will feature a spirited discussion of the current issues and events that concern medical spa owners and operators.
  • 1:30 – 3:30 p.m.: The Law, presented by Alex Thiersch (AmSpa) and Renee Coover (ByrdAdatto)—In this presentation, we’ll discuss the long-standing and emerging legal issues that every medical spa owner needs to know about. As you can imagine, there is a lot to cover here, since new concerns seem to be arising daily lately.
  • 4:15 – 5 p.m.: The Treatments, presented by Terri Ross (Terri Ross Consulting)—Learn about the most profitable and popular treatments available to your practice, and find out how to best determine which treatments are right for you based on the state of your practice.
  • 5 – 6 p.m.: The Digital Marketing Ecosystem, presented by Tim Sawyer (Crystal Clear Digital Marketing)—Find out how to effectively spread the word about your medical aesthetic practice and how best to determine what’s working and what’s not. Your practice’s digital presence is more important than ever before, and curating it should be a top priority.

Saturday will wrap up with a cocktail reception from 6 – 7:30 p.m.

Sunday, July 21

Once again, the Boot Camp begins at 8 a.m. with a continental breakfast.

  • 8:30 – 9 a.m.: Anatomy of a $5-Million Med Spa, presented by Alex Thiersch (AmSpa)—Have you ever wondered what the difference is between your medical spa and one that’s mega-successful? It might be less significant than you think. This presentation will show what a $5-million med spa is doing right—and what you might be doing wrong.
  • 9 – 10 a.m.: The Financials, presented by Bryan Durocher (Durocher Enterprises)—At the end of the day, the money you’re bringing in is the most important measure of your practice’s success. This presentation will, among other things, demonstrate how to properly develop a budget and use metrics to determine your med spa’s strengths and weaknesses.
  • 10:30 – 11:30 a.m.: The Long-term Revenue, presented by Brandon and Jenny Robinson (Skin Body Soul MedSpa)—Simply being successful isn’t enough for a medical aesthetic practice; you have to know how to maintain and grow your success. In this session, Brandon and Jenny will show you how to build patient loyalty and move your business forward.
  • 11:30 a.m. – 12:15 p.m.: The Consultation, presented by Terri Ross (Terri Ross Consulting)—As the old saying goes, you never get a second chance to make a first impression. Learn how to put your best foot forward with effective patient consultations—and how to turn them into consistent business.
  • 1 – 2 p.m.: The Team, presented by Bryan Durocher (Durocher Enterprises)—A medical spa is only as good as its personnel, so it’s important to make sure that you hire a staff that can do everything you want it to—and more. In this session, you’ll learn about recruiting, hiring and retaining employees who can make your medical spa dreams come true.
  • 2 – 3 p.m.: The Marketing Plan and Social Media, presented by Brandon and Jenny Robinson (Skin Body Soul MedSpa)—This session will help you determine how to most effectively market your medical aesthetic practice using both traditional methods and cutting-edge techniques.

Also, you’ll have the chance to visit with a number of exceptional vendors during this event. Attend the Seattle Medical Spa & Aesthetic Boot Camp to check out the latest and greatest from the following companies:

We hope you can join us in Seattle next weekend. This Boot Camp is a tremendous opportunity to get a medical aesthetic business started off on the right foot, as well as learn how to take an already successful business to the next level. Click here to register!

Tags:  AmSpa's Med Spa & Aesthetic Boot Camps  Business and Financials  Med Spa Law  Med Spa Ownership  Med Spa Trends 

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How to Partner with a Medical Professional

Posted By Administration, Wednesday, July 10, 2019

partnership handshake

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

Creating a partnership with a medical professional can be a lucrative—and often legally necessary—step for traditional spa owners, salon owners, and entrepreneurs who want to get a piece of the ever-growing medical spa pie. Here is what you need to know in order to effectively and compliantly partner with a medical professional.

Staking Your Claim

Most states observe a doctrine known as the corporate practice of medicine, which requires a physician or physician-owned corporation to receive payment for medical services. Since many of the treatments offered at medical spas are medical in nature, these practices are governed by this doctrine where it applies.

So, creating a medical spa is not as simple as contracting with a doctor or a nurse to administer medical treatments, or listing the medical professional as a “medical director” without having him or her available for consultations. Often, arrangements such as these are illegal, so medical spa owners should consult with a local health care attorney and the American Medical Spa Association (AmSpa) to make sure they are operating on the up-and-up.

If an entrepreneur wants to become a part of the medical aesthetic industry on an ownership level where the corporate practice of medicine is observed, he or she can set up a management services organization (MSO), which partners with a physician, for whom a separate company is created; this company strictly provides medical services. This arrangement is known as a management service agreement (MSA), and it allows a non-physician to supervise most aspects of a medical aesthetic business aside from the administration of medical services.

Playing by the Rules

Regardless of the ownership structure, the medical side of the practice must remain the domain of medical professionals. It is their responsibility to make sure all medical procedures are administered by employees who are properly trained and supervised.

It is perfectly legal and quite common for physicians to delegate regular medical procedures at a medical spa to licensed practitioners, such as nurse practitioners and physician assistants. Those practitioners can, in turn, delegate tasks to non-medical staffers, such as registered nurses and laser technicians, as long as the tasks they are assigned fall within the scope of their training and they are properly supervised. Additionally, physicians do not even necessarily need to be at the medical spa, as long as they are reachable and a licensed practitioner is present while treatments are being administered.

Physicians are accountable for everything that occurs at the medical spa, so it is important for them to make sure that the staff is properly trained. A medical professional who does not wish to actually be involved in this aspect of the business is probably trying to get involved for the wrong reasons.

Splitting Headaches

Because physicians may not be conducting treatments, they might wish to reward the people who are actually dealing with the patients by giving them a percentage of the business they bring in—commission, in other words. Unfortunately, this is probably illegal if the practice is governed by the corporate practice of medicine, because it constitutes fee-splitting.

As mentioned previously, under the corporate practice of medicine, all payments for medical treatments must be made in full to a physician or physician-owned corporation. If a percentage of that payment is directed instead to an employee, fee-splitting is said to have occurred. If a medical spa is found to have done this, all involved could face significant sanctions.

To learn more about this and many other topics that concern medical spa owners and operators, attend an AmSpa Medical Spa & Aesthetic Boot Camp. The next success story could be your own!

Tags:  Business and Financials  Med Spa Law  Med Spa Ownership  Med Spa Trends 

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Texas Publishes Proposed Changes to Delegation Rule §193.17

Posted By Administration, Monday, July 8, 2019

texas u.s. flags

By Patrick O’Brien, JD, legal coordinator for the American Med Spa Association

The July 5 issue of Texas Register contains proposed changes to the Nonsurgical Medical Cosmetic Procedures delegation rule known as Rule §193.17 of the Texas Administrative Code. We previously covered the stakeholder meeting where this and an alternative proposal were introduced. The board approved the publication of this proposal at its last meeting, as it had not received any negative comments about it. This publication is the next step in formally adopting this change.

To briefly review the issue, this proposed change adds a notice provision to the current delegation rules. Every facility that provides nonsurgical medical cosmetic procedures will now be required to post a notice in each public area and treatment room. The notice needs to provide the name and license number of the physician who delegates the procedures, as well as information about how to file a complaint with the medical board. The form and content of this notice must follow the medical board’s rules contained in Rule §178, and specifically the approved formats found in §178.3.

The proposed changes can be viewed starting on page 63 of the most recent issue of the Texas Register. Also of note in this issue is the repeal of rule §193.8 on standing delegation orders. This change is designed to conform to a recent law change that requires monthly meetings between physicians and physician assistants or advanced practice registered nurses.

With the official publication of these changes, the earliest they could be formally adopted is August 4, 2019. There may be a public hearing to solicit comments; however, none is scheduled at this time. If you wish to make a comment or get more information about these changes, you can contact Texas Medical Board General Counsel Scott Freshour at 512.305.7016.

Tags:  Med Spa Law  Med Spa Trends 

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The Art of the Fair Deal

Posted By Administration, Wednesday, July 3, 2019

handshake

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

Warren Buffett once told Berkshire Hathaway sharholders, “More than 50 years ago, Charlie [Munger, Berkshire Hathaway vice chairman] told me that it was far better to buy a wonderful business at a fair price than to buy a fair business at a wonderful price.” Businesspeople who see every deal as something to be won or lost may disagree with this, but I believe that if you conduct all your dealings fairly and ethically, you improve your chances for success.

When you start your business and begin forming partnerships, agreeing to contracts and making deals with others—whether they are employees or external businesses—you should always endeavor to make fair deals. In other words, don’t chase every last dollar and screw people over just so you can feel like you’ve “won” these deals. Some businesspeople seem to be addicted to this feeling, but deals don’t have to have winners or losers—a fair deal lets everyone get what they want.

For example, if you’re negotiating with someone who you know is undervaluing his or her position, don’t take advantage of it just to save a little money. You should always respect the other party. You might end up paying a bit more than you think you should be paying, but if you conduct business ethically, you almost certainly will build a positive reputation among your peers, which will lead to future opportunities.

I believe in something I call “corporate karma,” which dictates that if you conduct business fairly, you’ll end up attracting people—employees, business partners, etc.—who are good for your business. If, instead of making a fair deal with the person who is undervaluing his or her asset, you decide to use this to your advantage, that person will almost certainly find out what you’ve done and will be hesitant to do business with you again. Additionally, he or she will probably tell others about your shady practices, and you might find yourself with limited options moving forward because you needed to feel like you “won” the original deal.

There are many things in the world of business and finance that you can’t manage, but your conduct is firmly within your control. If you approach your dealings intending to conduct them ethically and fairly, you’ll improve your chances of success. After all, the best kinds of deals are the ones in which both sides gain something they value.

For more medical spa business and legal best practices, and to learn how to build and run your med spa compliantly, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps.

Tags:  AmSpa's Med Spa & Aesthetic Boot Camps  Business and Financials 

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