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EmSculpt Laws and Your Med Spa

Posted By Administration, 4 hours ago

By Michael S. Byrd, JD, Partner, ByrdAdatto

Unless you’ve been living under a rock, you may have noticed the increasing number of medical spas and aesthetic practices popping up in areas across the country. Similarly, the variety of non-invasive cosmetic procedures are continuing to attract ― and now contract ― bodies into its facilities.

Using high-intensity focused electromagnetic energy, or HIFU, Emsculpt is the newest non-invasive aesthetic procedure in the body contouring market.  It induces supramaximal muscle contractions to burn fat and strengthen abdomen and buttocks muscles in weeks instead of the months it would take to get the same or similar results in the gym, or with the alternative butt-lift.

Emsculpt, and similar non-invasive procedures, are commonly referred to as “cosmetic” procedures which may suggest that the procedures are different from other medical treatments; but as names can mean almost nothing, so do many states that broadly define what constitutes the practice of medicine and medical treatments. In other words, states couldn’t care less about the attractive name of your business ― if it operates like a medical facility, employs like a medical facility and treats physical conditions like a medical facility, then it’s a medical facility.

Emsculpt, as is the consistent case with Coolsculpting and SculpSure, will be considered the practice of medicine and constitute a medical treatment in most states.  Although the law and enforcement of the law lag behind advances in technology, the various states generally look to see what happens to the body with the treatment.  For example, Coolsculpting causes changes in the body to eliminate fat;  Microneedling stimulates collagen production.  Both of these treatments are routinely considered the practice of medicine.

If Emsculpt is indeed the practice of medicine, this can legally impact who can own a business that provides Emsculpt.  Virginia and California are two examples of states that broadly define the practice of medicine and that would characterize Emsculpt the practice of medicine; however, Virginia allows  anyone to own a business that practices medicine, while California’s ownership laws are more restrictive. These state specific nuances are just as important when determining who can and cannot perform the procedure.

Compliance is not stagnate; rather it is a moving target that changes as the laws, technology, and providers change.  For more information and state law guidance on Emsculpt or other aesthetic procedures, please contact ByrdAdatto. AmSpa members receive a complimentary 15-20 minute annual compliance consultation call.

Michael S. Byrd , JD, is a partner with the law firm of ByrdAdatto. With his background as both a litigator and transactional attorney, Michael brings a comprehensive perspective to business and health care issues. He has been named to Texas Rising Stars and Texas Super Lawyers, published by Thompson Reuters, for multiple years (2009-2016) and recognized as a Best Lawyer in Dallas by D Magazine (2013, 2016).

Tags:  ByrdAdatto  Med Spa Law 

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Microblading Training Offered at The Medical Spa Show 2019

Posted By Administration, Friday, December 7, 2018

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

Microblading is here to stay. A semi-permanent beautification technique that is typically used to improve the perceived thickness of patients’ eyebrows, microblading is a treatment in which technicians create superficial cuts near the surface of the skin and fill them with pigment, creating the illusion of fuller hair. It is an exciting treatment that is becoming quite popular—in fact, according to the 2017 State of the Medical Spa Industry Report conducted by AmSpa, microblading is the fastest-growing new treatment in the industry, with revenue produced by it increasing approximately 40% from year to year. 

However, it is also worth noting that AmSpa’s study found that only around 25% of medical spas offer microblading. That number seems to be rising, but the market for this service is also growing, and enterprising practices stand to make a great deal of money with it, since it is absurdly inexpensive to the practice—all it requires is a disposable device that costs around $5. What’s more, in many states a practice typically does not need a doctor or a medically licensed practitioner to perform these treatments, thus keeping their practical costs low. However, medical spas can charge upwards of $500 for microblading services, so practices can reap very high profit margins when it is administered. Patients like it because it is simple and semi-permanent, making it a much more palatable solution than tattooing, which has been used in the past for the same purpose; microblading also tends to look a bit more natural.

I’ve been told by medical aesthetic professionals that eyebrows are the new lips, so microblading is something that medical spa owners who want to advance their practices should definitely consider exploring.

Educate yourself

Because microblading is so potentially lucrative, AmSpa is offering a one-day microblading training course at The Medical Spa Show 2019 in Las Vegas, which takes place on February 7, 2019. It is presented by Maegen Kennedy from Fleek Brows Microblading in Orlando, FL, who has been training people to perform this technique for several years. She is a board-certified physician assistant and licensed tattoo artist whose experience in the field can help newcomers understand the ins and outs of the microblading process. Visit medicalspashow.com or americanmedspa.org to learn more about this opportunity.

The micro print

If you are considering joining AmSpa and Maegen for this course, you should probably be aware ahead of time that because the microblading process is so similar to that of tattooing, most states that have issued rulings on the matter of who can legally perform these treatments have declared that a tattooing or body art license is required to perform it. 

If your practice is located in one of these states, you and your employees would need to obtain these licenses (if you don’t already have them) in order to perform microblading treatments in a medical spa. This might sound like a bit of a hassle, but earning a tattooing license is often surprisingly simple. Consult a local health care attorney to learn how you and your employees can get tattooing licenses in your state or city. (Author’s note: The American Med Spa Association (AmSpa) works with a national law firm that focuses on medical aesthetic legalities and, as a member, along with a number of other great benefits, you receive a discount off of your initial consultation. To learn more, log on to www.americanmedspa.org.)

If you need to know anything else about this topic, you can learn more about microblading at AmSpa’s consumer treatment website

Microblading training is highly sought after, and this is a great chance to learn about a type of treatment that could make a big difference for a practice’s bottom line. Join AmSpa and Maegen Kennedy in Las Vegas to learn how your medical spa can hit the jackpot with microblading.

Tags:  Med Spa Trends  The Medical Spa Show 2019 

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Houston PD Appears to be Bringing the Hammer Down as Fourth Arrest Made in Houston Med Spa “Crackdown”

Posted By Administration, Thursday, December 6, 2018

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

The first line of this story from the local ABC affiliate in Houston says it all: “A licensed cosmetologist is the latest person arrested in a police crackdown on illegal medspa procedures.” This time, a local cosmetologist’s mugshot is accompanied by the now-all-too-familiar scene of a med spa employee being led away in handcuffs and charged with the unlawful practice of medicine.

This is, by my count, the fourth such arrest in the last month in the Houston area resulting from two separate undercover investigations. In late November, a med spa owner was led away in handcuffs after providing PRP services to an undercover officer without proper physician supervision. This followed closely on the heels of the well-publicized arrest of popular injector Michele Bogle, who was arrested for illegally injecting Botox, followed shortly thereafter by the arrest of Bogle’s medical director, Dr. Paula Springer. (Note: I had a great talk with Texas lawyers Michael Byrd and Brad Adatto about this arrest, which is available on our podcast. This is a MUST LISTEN for all Texas med spa professionals.)

The latest arrest appears to be correlated to the original two, which all emanate from Savvy Chic MedSpa in Spring, Texas. Savvy Chic MedSpa cosmetologist Melissa Galvan allegedly prescribed a weight loss pill to a patient. The patient ended up in the hospital after experiencing chest pains which led to the arrest. According to the news report, Houston PD believes that Bogle, Springer, and Galvan all worked together to “unlawfully practice medicine.” According to investigators, the prescription pad used by Galvan belonged to Dr. Springer. You can read the full story here (also posted in the AmSpa news section).

The fact that we have had two undercover stings and four arrests in the last month at Houston med spas is startling. While we have been saying for years that enforcement is coming, I never believed we would see this type of concerted and targeted effort to take down illegal med spas. Seeing med spa owners, injectors, and medical directors led away in handcuffs has got to be a sobering feeling for area med spas, regardless of whether they are compliant or not.

There is a lot to learn from this and I promise there will be more to come. I will put together some takeaways for Texas med spas once I gather my thoughts and learn a little more. In the meantime, please check out AmSpa’s legal summary for the latest on the law.

Tags:  Compliance is Cool  Med Spa Law  Medical Spa Insider Podcast 

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Medical Spas Still Have a Long Way to Go When It Comes to Compliance

Posted By Administration, Wednesday, December 5, 2018

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

The recent arrest of licensed vocational nurse (LVN) Michelle Bogle has shaken the medical spa industry to its core. Bogle, an employee of Savvy Chic Medspa in Spring, Texas, is accused of practicing medicine without a license for administering Botox injections, something that many, many LVNs—and much less qualified individuals—have done and are doing. Bogle’s arrest and prospective prosecution have far-reaching consequences for those in the medical aesthetic industry, but this sort of enforcement, while somewhat surprising, was inevitable, so it’s up to medical spas everywhere to maintain compliance with their states’ rules and regulations.

I could go to practically any medical spa in the country and find something that it’s doing incorrectly, from a minor OSHA violation to a HIPAA breach to the improper practice of medicine in the form of improper delegation or supervision. In AmSpa’s 2017 Medical Spa State of the Industry Study, it found that 37% of medical spas that responded to the survey admitted that they did not do any sort of in-person good-faith exam prior to a medical treatment. (Frankly, I think the actual number is closer to 50%, but some respondents likely weren’t being entirely truthful.) The fact that Savvy Chic was conducting exams over FaceTime is one of the reasons why the investigation that netted Bogle was launched.

Any treatment that impacts living tissue—which encompasses most of the treatments offered at a medical spa—is a medical treatment and requires a full exam before it can be administered. If roughly half of the medical spas in operation aren’t doing this, we as an industry have a long way to go. And if you’re shocked by the charge against Bogle, you shouldn’t be—administering Botox is a medical procedure and she is not qualified to perform it, so therefore, she was practicing medicine without a license. Even though it happens constantly in medical spas all over the country, that doesn’t make it right and, in fact, indicates the immaturity of the industry.

It is high time for everyone in the medical aesthetic industry to start taking this a lot more seriously than they are. If this industry is going to survive and grow and thrive, it is crucial that this starts being controlled. At a minimum, we have to understand the practice of medicine, as well as the proper delegation and supervision of medical treatments.

Another finding of AmSpa’s 2017 Medical Spa State of the Industry Study was that only 7% of the respondents said they had been investigated by a government agency. My concern is that, because enforcement has traditionally been so lax, there is not much urgency for medical spas to fix their compliance issues. However, a rise in enforcement has taken place over the past couple years, and I suspect that if we were to ask the same question today, the number of medical spas admitting they have been investigated would be significantly higher.

Compliance is never a problem until it’s a problem, but we as an industry need to want to do better, and we need to do it regardless of the threat of enforcement. The medical aesthetic industry will not be taken seriously as long as its practitioners are seen making perp walks on the nightly news. Everyone at every medical spa must respect the need for compliance and do what they can to achieve it. The Wild West days of years past are over, and the industry must evolve to become everything it possibly can be.

Tags:  Med Spa Law 

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New Ohio Law Provides Affirmative Defense to HIPAA Liability in Data Breaches

Posted By Administration, Friday, November 30, 2018

By Robert J. Fisher, Attorney, ByrdAdatto

If you work in a medical spa, you are undoubtedly using the internet in more ways than one. In the age of electronic health records, online patient portals, and rapidly expanding telemedicine, there is an ever growing amount of personal and medical information available to be illegally accessed by wrongdoers with keyboards. As a result, federal and state governments and agencies have taken the “stick” approach by penalizing those who fail to protect their data, such as the $16 million payment Anthem made to the federal government in August for a breach that exposed the personal information of nearly 79 million people, and by recognizing a private cause of action for individuals to sue companies who violate HIPAA standards (see our previous article here).

In contrast, Ohio has recently taken the “carrot” approach by passing the Cybersecurity Safe Harbor Act (“Cyber Act”) that takes a new angle on the data breach issue by incentivizing companies to develop data security plans by offering legal protection rather than by fear of penalty. In the first law of its kind, the Cyber Act allows companies to use an affirmative defense against tort claims resulting from a data breach if an adequate cyber-protection program was in place at the time of the breach.

However, for a company to use the safe harbor, its cyber-protection protocol must meet the criteria set forth by the Cyber Act. Specifically, healthcare companies and practices must meet sector-specific laws and standards such as HIPAA and HITECH both in the written plan protocol, and its implementation. Additionally, the Cyber Act is not one size fits all as each security plan must be tailored in complexity and scope based on certain factors such as structure of the company, sensitivity of information, cost effectiveness of security improvements, and availability of tools.

While this law is specific to Ohio, it may be a sign of laws to come nationwide that would further encourage healthcare companies to protect themselves from suit by implementing strengthened data protection plans. Further, it indicates that HIPAA continues to be the standard on which healthcare companies need to base their compliance programs, regardless of whether HIPAA specifically applies to them. As such, we continue to recommend that all healthcare companies and medical practices protect themselves by preparing and enacting a HIPAA compliant data protection plan, or having their current plan audited for sufficiency.

For more information on best practices, laws and regulations, attend The 2019 Medical Spa Show in Las Vegas, NV.

Robert J. Fisher’s passion for healthcare traces back to his high school days of shadowing doctors. His passion evolved in college to study as a pre-med major. The last major evolution of Robert’s interest in health care was the transition to an interest in health care law. With this education, a business attorney for a father, and a renowned orthopedic surgeon for a father-in-law, Robert has the pedigree for success as a business and health care attorney at ByrdAdatto.

Tags:  ByrdAdatto  Med Spa Law 

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Keep The Holidays Happy with Legally Compliant Med Spa Events

Posted By Administration, Thursday, November 29, 2018
Updated: Thursday, November 29, 2018

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

Many medical spas and medical aesthetic facilities thank their loyal customers and VIPs with events or parties during the holiday season, where people can undergo treatments while enjoying refreshments with friends and employees. However, despite the frivolity, medical spa owners and operators need to take care to observe all the rules and regulations that they would in the normal course of business. In fact, in a party setting, this might prove to be something of a challenge.

Principle among these concerns is patient privacy. In a party setting, it might seem like no big deal for operators and attendees to take pictures and post them on social media; in fact, it’s the sort of behavior that a traditional retail outlet might encourage, since it shows customers having fun in an exciting setting. However, if photos of a party your medical spa is hosting are posted without a patient’s consent, it is a violation of HIPAA and likely other state regulations related to patient privacy, since you are tacitly admitting that these are your patients. Make sure that anyone appearing in photos you want to post from the party has consented to you using his or her likeness in this fashion; this typically can be accomplished with a disclaimer on the invite, although you should check with your healthcare attorney to make sure that this covers you completely.

Also, regardless of where the party takes place—it’s common for patients to host Botox parties, for example—you must observe the same procedures and protocols that you would in the course of your everyday business. In most states, the law requires that a physician must conduct a face-to-face consultation with each patient who seeks to undergo a medical procedure, and regardless of whether you’re administering these treatments at a party or during normal business hours, they are medical in nature and subject to the rules and regulations that govern medical procedures in your state. (AmSpa members can check the legal summary of medical aesthetic laws in their state.) So by the letter of the law, a physician or licensed practitioner (such as a nurse practitioner or physician assistant) must take a history, conduct a physical and administer an examination to each patient.

After a successful consultation, the patient’s treatment can commence, and while that treatment does not necessarily need to be conducted by a physician or licensed professional, you must make sure that proper supervision is provided. Provided the procedure falls within their scopes of practice, non-licensed professionals—such as laser technicians—may perform the actual treatments in lieu of a physician. However, a licensed professional must be available during the treatment, should the non-licensed professional require his or her assistance.

It is a good idea to make sure that a physician or another licensed professional is always on-site while medical procedures are being performed. Most medical spa treatments have very little risk of complications or negative outcomes, but if one should occur at one of these parties, the presence of a licensed professional will help protect the business against charges of impropriety.

This might seem like a lot of trouble to go to for a party, but the last thing in the world you want is for your state board of health to leave a citation in your stocking. Make sure all your legal bases are covered, and have a happy holiday season!

Tags:  Med Spa Law 

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The Rise of Non-Core Physicians

Posted By Administration, Tuesday, November 27, 2018

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

During its early years, the medical aesthetics industry was dominated by the physicians who are referred to as “core doctors”—plastic surgeons, facial plastic surgeons, oculoplastic surgeons, and dermatologists. This makes sense, since these physicians are well-suited to oversee and provide medical aesthetic services. However, in recent years, more and more non-core doctors have entered the marketplace. They are looking for ways to boost their compensation, define their brands and be their own bosses, and they are taking over the industry, much to core doctors’ chagrin.

Today, approximately 60% of all medical directors at medical spas are non-core physicians, and it’s likely that percentage will only increase in coming years. An incredible influx of non-core doctors is coming into the marketplace, and it is very likely that their ranks will expand as the popularity of medical spas increases and the public becomes more aware of these businesses.

Core doctors tend to presume that they are best-equipped to deal with the intricacies of the non-surgical medical aesthetic industry, because it is roughly adjacent to their fields of expertise. However, many often try to run their medical spas as parts of their surgical and dermatological practices without realizing that a medical spa requires a much different business model and perspective.

Non-core doctors, meanwhile, are aware that they don’t know about the medical aesthetic industry and are willing to work to learn about it. They tend to place their primary focus on their medical aesthetic practices, and they become part of the industry by fully participating in it and committing to it. They perform the treatments, build their brands, undergo business training—in other words, they experience all the aspects of running a medical spa. Whether through education or trial and error, they try to learn how to run medical spas effectively. They know they need to have patients in order to survive, which is something many core doctors tend to overlook—if a medical spa associated with a surgical practice doesn’t make money, it’s not a major problem because the surgical practice is where the real money is. If a medical spa is a physician’s primary focus, though, he or she must learn to adapt quickly, and that’s why non-core doctors have experienced significant success in the medical aesthetic industry in recent years.

Of the top 10 medical spas that I know of in the country, none are run by core doctors—they’re run by either non-core doctors or entrepreneurs, most of whom partner with non-core doctors as their medical directors.

In the face of this, core doctors have begun to express concern about the quality of the treatments provided by non-core doctors and, honestly, they have a point. After all, you probably wouldn’t want to be one of the early patients at a medical spa that’s run by a non-core doctor who is new to the industry. However, at the same time, why would you want to go to a core doctor’s medical spa that’s connected to a surgical practice, where your treatment is viewed as an afterthought?

Non-core doctors are affecting the industry in ways that few could have foreseen. When I speak to core doctors at conferences such as Vegas Cosmetic Surgery, I tell them that they’ve fallen behind when it comes to medical spas, and that they need to start considering their medical spas as discrete businesses or else they’re going to be pushed out of the industry. Some core doctors understand this, and when they implement this philosophy into their medical spas, they’ll likely be surprised by how much more money they make.

However, as of now, the medical aesthetic industry belongs to the non-core doctors, and it’s up to the core doctors to catch up and reclaim what was once theirs.

If you would like to learn more about the legal issues surrounding your medical spa, attend The Medical Spa Show this coming February in Las Vegas, NV. 

Tags:  Business and Financials  Med Spa Trends 

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Can an Esthetician Do It?

Posted By Administration, Tuesday, November 20, 2018

By Patrick O’Brien, J.D., Legal Coordinator for the American Med Spa Association

The services that medical spas offer can range between traditional spa beauty treatments to cosmetic medical procedures. Just as medical practitioners have developed less invasive procedures to offer in their practices, so too have cosmetologists and estheticians adopted more invasive procedures. As discussed previously (and here), this can create issues when these procedures fall into the practice of medicine without a license or without proper delegation an oversight. 

The traditional scope of esthetician practice is usually limited to beautifying procedures and applications that do not invade the living tissue. Typically, living tissue ends up being defined as the stratum corneum, the very top most layer of skin. This is the case in South Dakota, where estheticians are limited to only “non-invasive” procedures that are confined to the non-living cells of the stratum corneum. Similarly, North Dakota forbids estheticians from performing any invasive procedures. This limitation to the stratum corneum allows estheticians to perform many of the services offered in traditional spas, but many of the services a medical spa offers will be outside of their scope of practice. (For individual states, AmSpa Members can refer to your state’s summary here.)

The North Dakota Cosmetology Board mentioned above offers a guidance document you can access here which specifically prohibits their practitioners from performing laser use, CoolSculpting, any sort of injecting, microneedling that invades the live tissue, and chemical peels over a certain strength. These cover many of the most popular procedures that medical spas offer. And since estheticians are the most commonly employed licensee in many medical spas, this can create a temptation to practice beyond their scope. In response to this, many states have passed rules and regulations that provide a legal way for estheticians to extend the scope of their services. This process has taken multiple forms which broadly fall into two categories: 1) expanding their scope or practice or 2) providing rules allowing estheticians to perform medical procedures under physician guidance. However these changes can bring their own risks.

In Minnesota, the legislature passed a law creating an “advanced practice esthetics” license that allows licensees to perform procedures that effect the epidermis. This seems like a minor change, as the epidermis is made of primarily of the stratum corneum. The other two layers of the epidermis are significantly thinner. However, it is enough of a change that many formerly prohibited dermatologic procedures would be permitted within this new scope of practice. In this case, the adopted rules for Minnesota’s advanced practice esthetic license allow practitioners to perform dermaplaning, microdermabrasion, and to use electrical- and light-based skin care treatments. These advanced practice licensees are still prohibited from using lasers, but the other procedures encompass a significant percentage of medical spa offerings. Oregon also has an advanced practice esthetician license that allows license holders to perform “advanced non-ablative esthetic procedures” including, among others, laser-based skin rejuvenation and cellulite reduction. After earning this license the advanced practice esthetician is able to perform services without physician oversight. However, they do need to maintain a collaborative agreement with a medical professional if patients need to be referred. Although both the Oregon and Minnesota advanced licenses prohibit injections, they would still be a versatile licensee to have as part of a medical spa’s team. 

Other states have recognized that, although estheticians may have skills that complement more invasive medical procedures, they still need guidance and oversight of a medical licensee. States such as Wisconsin provide detailed rules for estheticians performing services that are medical procedures under physician supervision. A person licensed by the Wisconsin Board of Cosmetology may provide laser hair removal, microdermabrasion, and certain chemical exfoliation procedures; however, this can only take place in a licensed salon and under the delegation, supervision, and written protocols from a licensed physician. Similarly, Kentucky forbids estheticians from performing common medical spa procedures, such as Botox injections, laser treatments and microblading unless under the direct supervision of a physician. Here, direct supervision means within immediate distance to be able to respond to the patient if needed. These states and others like them attempt to strike a balance between expanding esthetician and cosmetologist’s scope of services and providing sufficient medical oversight.

Many states do not have the formalized rules or roles that allow estheticians expand their scope or perform more invasive procedures offered Minnesota, Wisconsin, or Kentucky. In some of these states, physicians may still be able to delegate procedures to other unlicensed individuals known as medical assistants. This may include people who hold esthetician licenses, but usually requires that they not hold themselves out as practicing under their license. Texas is one such state: Estheticians and cosmetologists may only provide their services in a licensed salon. Furthermore, physicians are unable to delegate cosmetology procedures to those licensees. However Texas law and its medical board do allow physicians to delegate certain procedures to others, including medical assistants. Since these procedures are not within an esthetician’s scope of practice, they could only perform them as an unlicensed medical assistant under the supervision of a physician.

Estheticians can be very valuable and versatile employees to a medical spa. They offer a wide variety of services that complement and enhance the other cosmetic medical procedures offered by licensed health care professionals. And in the states that offer expanded scopes of practice or advanced practice licenses, estheticians can even perform some of the more invasive procedures offered. It is, however, critical that medical spas operate well within the rules for delegation and licensees’ scope of practice. Even where the laws and rules are seemingly clear in allowing a procedure to be done by an esthetician, caution should still be exercised. When a physician’s supervision is required, there is always a requirement that the physician confirm that, in their professional judgment, the person has the appropriate training, skills, and experience to perform the procedures. Clearly this is a subjective standard, and the physician’s judgement in regard to what constituted sufficient training and skill would come under close scrutiny by the medical board if there were ever a complaint or adverse patient outcome reported. The physician’s license would depend on the board agreeing with the physician’s prior assessment and, when a patient has been harmed, the board may be less inclined to agree. On the other end of the relationship, if the physician is not providing sufficient oversight or is allowing the esthetician too much free reign, the esthetician could be made vulnerable to discipline from their own board for exceeding their scope of practice or subject to charges of practicing medicine without a license.

It is critical to every medical spa’s success and to the continued success of our industry as a whole that medical procedures are performed by properly trained and licensed people under appropriate supervision well within the rules and regulations of each state. If you would like to learn more about the legal issues surrounding your medical spa you may want to consider attending The Medical Spa Show this coming February in Las Vegas, NV. 

Tags:  Med Spa Law  Med Spa Trends 

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Understanding CoolSculpting and Your Med Spa

Posted By Administration, Monday, November 19, 2018

By Brad Adatto, JD, Partner, ByrdAdatto

Whether you’re an entrepreneur or a veteran business owner of a med spa, you know that business tends to run hot and cold. But does it really matter that business is hot when lifestyle preferences are cooling down? Literally. CoolSculpting is the growing phenomenon that is shifting a culture that was once obsessed with burning fat to freezing it.

CoolSculpting offers a fat reduction alternative to liposuction and a lifestyle alternative to diet and exercise by freezing and eliminating targeted fat cells using a process called cryolipolysis. The process is noninvasive, nonsurgical, and FDA approved. But make no mistake, there are still plenty of legal considerations to navigate before entering into one of the fastest growing practices in the country.

While the procedure is commonly referred to as a “cosmetic” treatment, CoolSculpting, or cryolipolysis, is considered the practice of medicine and a medical treatment in many states. Therefore, businesses must be extremely careful when navigating state laws regulating the practice of medicine, including the ownership and staffing of a CoolSculpting business.

Here’s what you need to know:

Ownership. You should develop your business and ownership model according to the laws of the state(s) in which you plan to practice. Because these laws vary from state to state, you need to know how to legally structure your CoolSculpting business and the type of liability that may be associated with the structure you choose.

You also need to know if there are any licensing restrictions on owning a business that renders medical services in the state(s). California, for example, limits the ownership of businesses that provide medical treatments to California-licensed physicians, but also allows partial ownership by a list of other non-physician health care providers, subject to strict and narrow business and ownership structure requirements.

The Practice of Medicine. What constitutes the practice of medicine or medical treatment varies from state to state, and these laws can be specific and nuanced to varying degrees. Therefore, you need to know whether CoolSculpting is considered the practice of medicine, and consequently a medical treatment, in your state. For example, Texas considers diagnosing a person as an appropriate candidate for a cosmetic medical procedure and giving orders for their treatment to be the practice of medicine.

Staffing. Medical professional scopes of practice not only vary from state to state, but also vary depending on the training, experience, and skill of a medical professional. Therefore, you need to know who can legally perform the treatment in your facility. It critical that state laws governing who can legally perform medical treatments, such as cryolipolysis, are not confused since many states only permit state-licensed physicians, physician assistants, nurse practitioners, and certain other licensed healthcare professionals to perform cryolipolysis, subject to state laws governing delegation and supervision.

Brad Adatto, JD, is a partner at ByrdAdatto, a business, healthcare, and aesthetic law firm that practices across the country. He has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions, and contract terms, including Medicare fraud and abuse, anti-trust, anti-kickback, anti-referral, and private securities laws.

Tags:  Business and Financials  Med Spa Law  Med Spa Trends 

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Critical Financial Numbers You Must Know

Posted By Administration, Friday, November 16, 2018

By Terri Ross, Managing Partner of Lasky Aesthetics

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 (ROI) 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 or medical spa—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
  • Start-up costs – Property, building, equipment, technology, staff and marketing all go into start-up 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 toward attracting new patients falls into this category, from pamphlets, to website development and networking events.
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 page they go to and stay on, 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, year.
Room Revenue Assumptions
  • Number of rooms – 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/hour – Based on the numbers above, what is your average revenue per hour?
Goals
  • New patients – Set a goal for 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/hour – To reach your revenue goals, how much do you need to generate per hour? Avg room should do between $600-$1000 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 BELOW & COMPLETE TERRI'S 10 POINT CHECK LIST.

Terri Ross is managing partner of Lasky Aesthetics & Laser Center, which she transformed from a $500,000 to a $3.5 million business in the span of three years. She is also the CEO of Terri Ross Consulting, providing high-level practice management consulting services and sales training to a number of high-profile physicians, including world-renowned plastic surgeon, Garth Fisher, MD, who started Extreme Makeover, and world-renowned facial plastic surgeon and host of the TV show Botched, Dr. Paul Nassif. Ross is an advisor for Revance Therapeutics, speaks for many companies, and works with venture capital firms to help start up medical spas. Her experience also spans the corporate world, with more than 16 years working as a sales director for several leading medical device companies, such as Zeltiq, launching Coolsculpting in the United States and Canada; Medicis (now Galderma); EMD Serono; and Johnson & Johnson.

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