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Building Your Exit Plan

Posted By Administration, Friday, September 27, 2019

doctors speaking

By Bradford E. Adatto, partner, ByrdAdatto

My father is a retired orthopedic surgeon. I’ve witnessed his personal retirement journey and know that closing the book on a successful practice can feel both daunting and exciting. But before you begin that last chapter, you must first define your goals and set yourself up to meet them.

There are several steps a physician should consider in building an exit plan: practice assessment and valuation; pinpointing late-career and retirement goals; and, finally, customizing your plan. More than anything, you need to make a plan. The most common struggle among our physician clients is taking action, because they become paralyzed by the complicated question of “when” to retire.

Practice assessment and valuation means realistically evaluating the current state of your practice and understanding your practice’s financial value. The valuation process requires you to recognize and identify your revenue streams, how they differ (professional services vs. ancillary services) and how they contribute to your bottom line. Additionally, during the practice assessment process, it’s important to assess your practice’s legal health. Even financially successful practices can be impacted by compliance issues. Recognize ahead of time if your legal model is helping or hurting your practice and make changes accordingly. You will also want to evaluate your practice from a cultural perspective. If a prospective buyer will inherit your team, it is important to be realistic as to whether there are dysfunction issues or overpaid staff that commonly result from long-term employment with a practice.

Ultimately, a successful valuation of your practice results from years of fostering goodwill with your patients. Practice goodwill relates to your practice’s ability to continue to generate earnings without the presence of any particular physician. If you want to eventually be in a position to sell, you must brand and run your practice as an enterprise. Patients must be seen as transferrable to the buying physician, and creating practice goodwill helps ensure that.

Next, it’s time to determine your retirement goals and late-career objectives. Think about your legacy and the impact you’d like to leave. Think about if you’d like to retire in stages (surgery first, cutting hours, etc.). Based on those intentions, we at ByrdAdatto can help customize a plan that sets you up for success.

While there are many exit strategies, the four most common plans we see at our firm are:

  • The Fixer-Upper Plan: This plan is all about repurposing your practice to fit your late-career goals and retirement timeline. Basically, it requires some legal restructuring. For example, under this plan, we’ve had clients develop separate entities as cost centers under a single legal model. This remodeling allows each entity to operate more independently, but still develop value under a single legal model.
  • The Sensei Plan: You, the sensei, will teach him or her, the student. This plan follows the standard concept of bringing on an associate, training him or her as a partner, and prepping him or her to take the reins in a buyout. Under this model, it is extremely important that the sensei and student develop the four Cs: cost, control, contingencies and compensation. Without mapping these elements, expectations from both parties are often unmet.
  • The Old School Plan: For many clients, the retirement timeline is compressed. Once they decide it’s time, the process of stopping practicing moves forward in months, as opposed to years. Historically, these late practice sales have ended in less value, but that is not always the case. We have worked with clients on creative solutions to retire on a shorter horizon, while still capturing full and fair value for their practice.
  • The Drop the Mic Plan: This is your show, and you draw the curtains the way you want, when you want. This exit requires you to position the practice—financially, legally and operationally—in a way that allows you to walk away on your own terms. Here, we help leverage offers to optimize your endgame.

The last bit of advice I offer is from my father: Once you retire, keep yourself busy—no matter your exit plan.

To learn more about legal and business best practices to keep your med spa compliant and profitable, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps and become the next med spa success story.

Bradford E. Adatto is a partner at ByrdAdatto, a national business and health care boutique law firm with offices in Dallas and Chicago. His background is in regulatory, transactional and securities law. Having worked in health care law his entire career, he has an in-depth knowledge of the “dos and don’ts” of this heavily regulated industry. Brad 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, antitrust, anti-kickback, anti-referral, and private securities laws. Adatto has been recognized as Top Rated Lawyer by the Dallas Morning News (2016) and a Best Lawyer in Dallas in health care by D Magazine (2016 & 2018-2019), selected as a Best Lawyer in America in health care (2017-2019), and was recently named a Best Lawyer in Texas (2019) and Texas Super Lawyer, published by Thompson Reuters (2019).

Tags:  Business and Financials  ByrdAdatto  Med Spa Trends 

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Building Customer Loyalty Through Promotional Financing

Posted By Administration, Thursday, September 26, 2019

speaking with a patient

By Karen Zupko, on behalf of CareCredit 

Cultivating loyalty with existing clients is less expensive and more effective than constantly trying to bring in new customers. Existing clients already have relationships with you. Nurturing them to become loyal followers can turn that $2,000 they spent on CoolSculpting and peels this year into $10,000 or more over five years. Plus, loyal clients refer their friends, who will add even more revenue to the bottom line. All told, the lifetime value of a loyal client can be tens of thousands of dollars or more.

Here are three ways to keep your spa on the minds of current clients, inspire them to schedule additional treatments and build loyal relationships that last a lifetime.

  1. Reactivate clients you haven’t seen in the last 12 months. Depending on your relationship with them, call, text or email with a special “We want you back!” promotion. Perhaps that’s a limited-time discount on the last service they received or a special rate on a “day of beauty” package. It may be a limited-time offer for scheduling one of your new oxygen treatments. When you reach out, let your clients know that you offer financing options that can be used to pay for all these services. If you accept CareCredit as a payment option, include the promotional financing options that are accepted at your practice, and include your custom apply link in emails or text messages to those who may not already have the CareCredit credit card.*
  2. Contact those who didn’t book a treatment due to “cost concerns.” Start by generating the unconverted quote report from the last six months. If your staff members are taking good notes, you’ll quickly zero in on those who didn’t schedule because of cost. Send them a personalized email or note with limited-time special pricing on the service they had considered. If you prefer not to offer special pricing, remind them of the budget-friendly ways they can pay with CareCredit promotional financing options—including no interest if paid in full during the promotional period.**
  3. Reward your top 25 clients on the “lifetime value” report. Generate this report from your spa management software and create a very special promotion for this VIP group. For example, mail them handwritten invitations to a posh private dinner event with a “celebrity” speaker, such as a local fashion designer. In the goodie bag, include a special offer for one of your high-end services and information on ways to pay for this service, including promotional financing options such as CareCredit. Make sure to allow each of your top 25 to invite a friend.

To learn more about CareCredit, click here. AmSpa Members receive 20% off promotional financing merchant fees on purchases of more than $200.

These patient financing tips have been provided by Karen Zupko, on behalf of CareCredit. Zupko is president of Karen Zupko & Associates, Inc. She has been advising aesthetic practices about marketing and management for more than 30 years.

* Subject to approval.
** Subject to approval. Minimum monthly payments required.

Tags:  Business and Financials  Guest Post  Med Spa Trends 

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Consulting from the Patient’s Point of View

Posted By Administration, Wednesday, September 25, 2019


By Terri Ross, Terri Ross Consulting

The first consultation with a prospective patient is undoubtedly the most important. Patients will form most of their opinions regarding your office during their first visit. From the aesthetic quality of the waiting area to the expertise and relatability of your front office staff and the provider, it is critical that every element of the patients’ consultation experience is impeccable. Much of their experience will be directly related to how well your front office staff listens, engages and responds. (To read more about how to successfully train your front office staff, read my article on the LAER model.) Equally as important is how you, as the medical expert and professional, are able to connect with the patient. Here are the elements of the patient consultation and the key points you will need to consider to successfully consult from the patient’s point of view.

Perfect the First Impression

The aesthetic quality of your office—the décor, ambience and overall tone—will make a significant impression on prospective patients. When they first enter the front door of your office, you want them to feel at ease. Your front office staff should acknowledge them immediately using their names, offer them refreshments and give an introduction to the office. They also should provide a pamphlet of relevant literature: the services, equipment and individualized plans available in your medical aesthetic office. This way, the prospective patients will be more informed and prepared for the consultation appointment. Further, they likely will form additional questions based on this information, which will incite conversation and give you an opportunity to connect with them during the consultation appointment.


Making a connection with the patient is critical. Research has shown that making a genuine connection matters more than any other factor, including expertise and pricing. (Read this article from the NY times about the patient-doctor relationship and how this shapes medical care.) Establishing a connection begins with your front office staff. They should strive to connect with patients even before the formal consultation begins. By making conversation and finding common ground—similar interests or having kids that are close in age, for example—the front office staff members begin forming that personal connection.

During the formal consultation, it is important that the medical expert continues making that connection. This can be done by first listening to the patient: their needs, desires, reservations and questions. (This will be discussed further in the next section.) Make sure you devote enough time for the first consultation, but don’t overdo it—evidence has shown that if you spend too long with patients, they may assume you aren’t busy enough, and this can reflect negatively on their overall impression. The takeaway here is that you only have a defined amount of time to make a genuine, lasting connection with a patient. This often is what the patient will remember most when they leave your office.


While your natural inclination may be to provide prospective patients with as much information as possible during their first appointment, it is critical to listen first. Ask questions that will allow you to really get to know the patient: why they seek treatment, what types of treatment they’re interested in, etc. This begins with their interactions with the front office staff and continues during the consultation. The consultation should be a two-way conversation. This will help the patient feel more at ease, and they will feel like they are receiving personalized care. The patient’s input should guide your treatment plan: the services, technology and timeline. The goal is not to throw every treatment option at them, but rather to develop and fully taper an individualized treatment plan.

Relay Your Expertise

Every member of your staff—from the front office to the nurses—should be well versed in the treatments, technology and services your office provides. While your front office staff members may not know the science behind the technology, they should be able to relay key information about your services, how they compare to your competitor’s, etc. A patient wants to feel like they are in the hands of the experts. When you meet with prospective patients, explain the services to them with enough detail that they feel confident in you as the expert. Be careful to not oversell them or over-explain the technology. Relate the technology to their personalized treatment plan and explain how it will benefit them specifically. This goes back to making a genuine connection. If patients feel a connection with you and feel confident in your expertise, it is likely that they will choose your medical aesthetic office.

Follow Through

At the end of the consultation, a prospective patient may want to consider his or her options before fully committing to your office. If you have successfully consulted from the patient’s point of view, it is likely that he or she will feel confident moving forward and will follow through with a second appointment. After the initial consultation, move forward by developing an individualized, comprehensive treatment plan based on that first appointment. Make sure the plan is professional, clean and personalized. Meet with him or her in person to discuss all of the options, financing, timeline, etc., or send it via email and discuss it by phone. This will get the conversation rolling and encourage him or her to make a final commitment to your office.

It is essential to consult from the patient’s point of view. First impressions are critical. Make a genuine connection and carefully tailor your expertise to meet the patient’s needs and desires.

Click here to 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  Med Spa Trends  Terri Ross Consulting 

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Medical-grade Skin Care vs. OTC Skin Care: What’s the Difference?

Posted By Administration, Monday, September 23, 2019


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

As anyone who has to deal with chronic pain will tell you, there is a world of difference between prescription pain-relief drugs—such as oxycodone and hydrocodone—and over-the-counter (OTC) pain-relief drugs, such as ibuprofen. The U.S. Food and Drug Administration (FDA) categorizes these drugs according to their active ingredients. Hydrocodone, for example, is an opioid, and it has a significant effect on certain receptors in the body, while ibuprofen merely inhibits enzymes, which produces a much less intense reduction in pain. Of course, opioids can be highly addictive, so requiring a prescription also (theoretically) keeps them out of the hands of people who would abuse them.

FDA categorizes skin care products somewhat similarly, and medical aesthetic professionals should know why some products require prescriptions, while others are more widely available. Understanding the difference can not only help medical aesthetic practices provide better patient care, but may also affect their bottom lines.

Cosmetics vs. Drugs

The FDA addresses the use of drugs and cosmetics under the Federal Food, Drug, and Cosmetic Act, which was enacted in 1938 and has been amended numerous times since then. The text of this act draws a distinction between “cosmetics” and “drugs” that provides relatively definitive guidance on this topic. A cosmetic is defined as a product that is “intended to be rubbed, poured, sprinkled or sprayed on, introduced into, or otherwise applied to the human body ... for cleansing, beautifying, promoting attractiveness, or altering the appearance.” Obviously, many products that are commonly used in medical spas and medical aesthetics fall under this category.

Drugs, meanwhile, are “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” Therefore, the legal difference between a cosmetic skin care product and a skin care drug is the product’s intended use.

“If you say you're going to eliminate fine lines and wrinkles, that claim—which alters the form and function and structure of the body—is a medical claim and, therefore, that product is considered a drug by the FDA. It has to be approved and regulated, and there's a long process to get through,” explains Rob Trow, CEO of DermaConcepts, the exclusive U.S. distributor of Environ Skin Care. “If you say that the skin care product will improve the appearance or look of fine lines and wrinkles, that's not a medical claim, and therefore it's not a prescription product and can be sold without it.” Drugs must be approved by the FDA, while cosmetics do not need approval, so a few words in a product’s description can make an enormous difference for the manufacturer.

“If a product says [it] will produce collagen and elastin, that's a product that affects the form and function of the body and is a medical claim, and therefore the product should be classified as a drug and go through a very complex and costly approval process,” Trow says. “If you look at the ads for skin care, you'll see many, many ads make those claims, even though they're not allowed to. But most skin care companies qualify the claims with adjectives that talk about ‘the look of, the feel, the appearance of,’ rather than affecting the change.”

According to Carl Thornfeldt, MD, founder and CEO of Epionce: “Many cosmetic products claiming they are effective for treating skin disease are mislabeled, basically not complying with FDA regulations. Moreover, many have no safety or efficacy studies.”

The concentrations of certain chemicals and compounds in a product also can determine whether it is a cosmetic or a drug. For example, a product with a 2% concentration of hydroquinone is considered cosmetic, while one with a 4% concentration is considered a prescription drug.

“[Some] medical skin care products—the technologies that proved themselves in performance and safety—may later move toward implementation in OTC products. [These would be] potentially less concentrated ones, but utilize proven clinical technology,” says Nikolay Turovets, PhD, CEO for DefenAge Skincare. “The most famous example, of course, are retinols.”

Some cosmetic manufacturers choose to submit their products for FDA approval and create their products according to FDA regulations, but they are not required to do so.

“There are certain cosmetic companies that have their own factory, that manufacture in clean rooms with nitrogen blankets, red and yellow light, pressurize the air system, and it's like going into an operating room where everybody is gowned and booted,” Trow says. “Some cosmetic companies use airless pumps, because if you let air and light into a product, you destroy its efficacy. So there are non-prescription products that are manufactured as stringently as prescription drugs. Unfortunately that has nothing to do with requirements by law, but rather the values and the investment in that process by the specific skin care company.”

Degrees of Drugs

If a skin care product is categorized as a drug, it falls into one of two categories: OTC or prescription. OTC drugs are typically available to anyone who wants to purchase them, although the sales of a small number of OTC products are restricted to a degree due to their active ingredients. (Pseudoephedrine, for example, is kept behind drugstore counters because its active ingredient is commonly used in the illicit manufacture of methamphetamines.) Only a few types of skin care products fall into the OTC drug category; typically, they are sunscreens and other general skincare products.

“There are many great product lines available in retail stores over the counter,” says Barbara Pestana, director, U.S. medical sales and marketing for NeoStrata Company, Inc. “OTC products can support general skin care needs, such as cleansing, hydration and sun protection.” Although OTC products are not as heavily regulated as prescription drugs, they still are held to high standards.

“OTC drugs must use pharmaceutical-grade [ingredients] and be manufactured in an FDA-inspected, [good manufacturing practice]-compliant facility,” explains Thornfeldt, whose company manufactures a number of OTC skin care products. “OTC drugs must also comply with FDA over-the-counter-drug monographs for the chemicals themselves, the concentration ranges, and the rules regarding claims for disease or conditions the active ingredient treats.”

It is not impossible for a drug to go from prescription to OTC, though it is not terribly common. Widely used drugs, such as cetirizine (Zyrtec), fexofenadine (Allegra), famotidine (Pepcid) and omeprazole (Prilosec) have made the switch, as have a handful of smoking-cessation aids and hair-growth products. Even ibuprofen was formerly only available via prescription.

“Pretty often, the most innovative, groundbreaking and revolutionary technologies are initially offered to market through medical distribution channels,” says Turovets. “For example, almost 20 years ago, when Dr. [Richard] Fitzpatrick introduced SkinMedica to the market, it was mind-blowing innovation—use of growth factors produced by living human cells in a laboratory to stimulate skin.”

However, while OTC products can be used without supervision, there are a number of advantages for patients who consult with physicians to develop a course of skin care treatment, including the use of prescription products.

“These products are often sold and recommended by a medical professional who will examine and diagnose skin care needs and create a targeted program to help patients achieve their goals,” Pestana says. “The program will likely include in-office devices and peels, along with a customized home-care regimen to enhance the effects of the procedures. Medical-grade skin care often provides protocols for both in-office procedures and home care that can be personalized to the needs of each patient.”

Expanding Understanding

Operators of medical spas and medical aesthetic practices should have a good understanding of the products that are being used in their practices and work with patients to fully understand their current OTC or prescription skin care regimens and how they can be adapted to bring about the best possible result for the patient.

To learn about legal and business best practices to keep your med spa compliant and profitable, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps and become the next med spa success story.

Tags:  AmSpa's Med Spa & Aesthetic Boot Camps  Med Spa Law  Med Spa Trends 

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How Your Medical Spa Can Legally Use Telemedicine

Posted By Administration, Friday, September 20, 2019


By Bala Mohan, JD, ByrdAdatto

Telemedicine is gaining popularity and acceptance across the United States. Some of the benefits of telemedicine include easing health care access to patients in remote and underserved areas, increasing cost-effectiveness, efficiently delivering health care service, and broadening the opportunity to receive secondary opinions. Telemedicine, in a nutshell, is the provision of health care services using telecommunication from a health care practitioner in one location to a patient in another. However, telemedicine compliance is tricky and varies from state to state. In addition to state laws, telemedicine also is subject to federal reimbursement, patient privacy and confidentiality laws.

This article will focus on the basic state law compliance considerations and general rules for providing telemedicine in your medical practice; however, any decision to provide telemedicine requires deeper scrutiny of the laws and regulations.

  1. Licensure. Clients commonly ask if they can provide telemedicine to a patient in another state. Typically, the practitioner providing the service must be licensed in the state where the patient is physically located. However, as with everything else in law, there are exceptions. For example, Maryland exempts physicians licensed in an adjoining state from obtaining a Maryland license, and Minnesota has a provision for physicians not licensed in the state to practice medicine in Minnesota via telemedicine by meeting certain telemedicine registration requirements. Appropriate physician licensure is a necessity when practicing medicine across state lines because providing telemedicine services in a state where the practitioner is not licensed can result in disciplinary action—including civil or criminal penalties—for the unlicensed practice of medicine.
  2. Standard of care. Practitioners using telemedicine will be held to the same standard of care that would apply to the provision of health care services in an in-person setting. To meet the standard of care, the practitioner must, at a minimum, establish a valid practitioner-patient relationship, provide quality health care service, obtain appropriate informed consent, document and maintain accurate patient medical records, and abide by the patient and medical record confidentiality standards required by law. Performing a proper initial consultation is a key aspect of establishing the practitioner-patient relationship; thus, an appropriate patient examination or evaluation is an important part of meeting the standard of care. Physicians must take the patient history and conduct a thorough evaluation of the patient’s medical condition prior to diagnosing the patient and prescribing the treatment plan.
  3. Establishing a valid practitioner-patient relationship. As the initial step, telemedicine laws usually require the practitioner to establish a valid practitioner-patient relationship, if one does not already exist. The legal requirements and process to establish this relationship vary by state. Generally, if a prior practitioner-patient relationship does not exist, it can be established via telemedicine using appropriate means. Some states may have restrictions as to the physical location of the patient for the patient evaluation or the telecommunication modalities that can be used in practicing telemedicine. However, filling out online questionnaires, telephone calls or text messages alone are not sufficient to establish the practitioner-patient relationship. Generally, acceptable telecommunication means use real-time streaming audio-visual technology or streaming audio coupled with store-and-forward technology.
  4. Reimbursement. Reimbursement for telemedicine services also varies widely amongst states. Accordingly, health care practitioners must review their respective payor contracts prior to billing for telemedicine services. For example, Texas has parity laws that require private payors to reimburse the same way as would be required in-person. On the other hand, Florida allows the payor and provider to negotiate the reimbursement rate for telemedicine services.

As you can see, a myriad of legal issues must be considered prior to engaging in telemedicine practice. If you have specific questions about setting up a telemedicine practice, the telemedicine laws in your state, contact ByrdAdatto, and consider attending The 2020 Medical Spa Show from January 31 – February 2 at the Aria Resort & Casino in Las Vegas. The Medical Spa Show is the premier trade show for non-invasive medical aesthetics, and this year’s iteration features four tracks of curated education covering practically every topic a medical spa owner/operator would need to know about, as well as two tracks of sponsored education. Click here to register today.

Bala Mohan, JD, knew from a very young age that her choice of career would be related to science because she excelled in her biology and chemistry coursework. With a strong passion for genetics and the desire to find a cure for her mother—who was diagnosed with diabetes at an early age—Mohan obtained a Bachelor of Technology in Pharmaceutical Biotechnology. Having worked as a scientific researcher during her undergraduate studies, Mohan greatly values attention to detail and is a meticulous person. She then pursued a master’s in Entrepreneurial Biotechnology to gain knowledge about business and startups. This landed her a position with Cleveland Clinic Innovations, where she evaluated over 100 innovations and negotiated deals with potential investors. In this role, Mohan had the opportunity to interact with business and health care lawyers from multiple health care organizations, and she quickly realized that her real calling in life was to be a health care attorney. Subsequently Mohan obtained her JD and was able to pursue a career that combined all her interests—science, business, and law.

Tags:  ByrdAdatto  Med Spa Law  Med Spa Trends  The Medical Spa Show 2020 

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New York Nursing Board Says Microneedling Is the Practice of Acupuncture

Posted By Administration, Wednesday, September 18, 2019


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

Over the last several years, microneedling has exploded in popularity, becoming a core procedure in medical spas. According to AmSpa’s 2019 Medical Spa State of the Industry Report, 84% of medical spas offer some form of microneedling. The majority of states consider microneedling that pierces the outer layer of skin—the stratum corneum—a medical procedure that must be performed by an appropriately trained person under the supervision of a physician or other independent licensed health care professional. But New York has taken the unusual position that microneedling is part of the practice of acupuncture.

The New York Board of Nursing has provided guidance that microneedling is not within the nursing scope of practice; however, the Board of Acupuncture confirmed that microneedling is within its license’s scope of practice. It is not unusual for a procedure to be within the scope of some nurse licenses but out of others based on the skill and training needed for the treatment, but it is unusual is that all levels of nurses are excluded from performing microneedling, regardless of training. Otherwise, nurses in New York are able to perform a broad range of services in a medical spa. For example, when registered nurses are acting under the authority of a valid provider, they may inject neuromodulators and fillers, fire both ablative and non-ablative lasers, use radio frequency devices, and provide skin peels and light treatments. However, they may not provide miconeedling unless they are separately licensed in acupuncture.

This is a somewhat unusual interpretation, as although the two techniques both employ needles to pierce the skin, their goals and methodology are entirely different. New York defines the “profession of acupuncture” to entail the insertion of needles or application of heat, pressure or electrical stimulation on a point of the body on the basis of the theory of physiological interrelationship of body organs with a point or points of the body. On the other hand, microneedling typically is the insertion of needles into the skin for the purpose of stimulating collagen production. While certain types of microneedling may use energy or injections to improve the procedure’s effect on the skin, its goal is only to improve the skin tissue to which the treatment is applied, while acupuncture is meant to improve or affect a different organ or portion of the body than the area treated. And while this interpretation is unusual, it is not unique. The Massachusetts Board of Registration in Nursing, in an advisory ruling, has similarly interpreted microneedling to be outside the scope of nursing; an acupuncturist license is required to perform the procedure in that state as well.

I do want to stress that this information all comes from informal correspondence with the nursing and acupuncture boards. There currently is no law, rule or official advisory opinion stating that nurses cannot perform microneedling and acupuncturists can, so carefully review your own practice situation before making any major changes. We will continue to attempt to get some clear guidance on this unusual interpretation. AmSpa members can check their state legal summary, or utilize their annual compliance consultation with the business, health care and aesthetic law firm of ByrdAdatto for more information on medical spa law.

If you live in New York and want more information on this and many other topics relevant to your medical spa, attend AmSpa’s New York Medical Spa & Aesthetic Boot Camp October 12 – 13 at The New Yorker Hotel (A Wyndham Hotel) in New York City. Click here to register today and become the next medical spa success story.

Tags:  AmSpa's 2019 Medical Spa Statistical Survey  AmSpa's Med Spa & Aesthetic Boot Camps  Med Spa Law  Med Spa Trends 

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Is HIPAA the Patient Privacy Standard of Care?

Posted By Administration, Monday, September 16, 2019

patient record

By Courtney P. Cowan, JD, ByrdAdatto

Anyone working in the health care industry is intimately familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. Generally, the purpose of HIPAA is to establish minimum federal standards for protecting the privacy of protected health information (PHI). While it is widely understood that health plans, health care clearinghouses, and health care providers are potentially subject to HIPAA regulation at the federal level for maintaining patient privacy, what may be less well known is how the patient privacy standard of care established under HIPAA applies to a private right of action.

Only the U.S. Department of Health and Human Services Office for Civil Rights (HHS) and the state attorneys general can enforce HIPAA violations. As a result, HIPAA lacks a private right of action. This means that an individual whose PHI has been used or disclosed by a health care provider in violation of HIPAA may not bring a civil claim against the provider under HIPAA. HIPAA also preempts state privacy laws that are contrary to HIPAA, the exception being when a state law is “more stringent” than HIPAA regarding privacy protection.

With data breaches becoming increasingly common, individuals have attempted to circumvent HIPAA’s lack of individual enforcement power by bringing negligence claims under state law based on violations of HIPAA. Using HIPAA as the patient privacy standard of care in negligence cases is beginning to look more like the equivalent of a private right of action under HIPAA, which HIPAA does not allow. This essentially means that a violation of the HIPAA rules may be used to establish that a health care provider has breached the duty of care owed to a patient under state law negligence claims relating to the improper disclosure of patient PHI. As a result, health care providers should understand that a HIPAA violation may result in a variety of state law claims.

Perhaps even more alarming than the attempted private right of action as a HIPAA workaround is the recent trend of state courts both finding in favor of the plaintiffs bringing the private rights of action, as well as finding that HIPAA violation claims can be brought at the state level. In California, for example, a medical center found itself at the center of a major data attack, with 4.5 million patients affected by the breach. After suspecting suspicious activity on its network, it contacted the FBI for help. Although it took close to nine months to notify the patients of the breach, HHS ultimately found that the medical center followed appropriate protocol and was satisfied with the health system’s post-breach efforts to improve security. However, despite the findings by HHS, a California state court found that the medical center failed to notify its patients of a data breach in a timely manner and awarded a settlement of $7.5 million in favor of patients who had filed the class-action suit.

The Arizona Court of Appeals also added itself to a number of courts across several states holding that HIPAA may define the standard of care for state law claims. The claim before the Arizona court alleged a privacy violation by a Costco pharmacist when the pharmacist verbally joked about a man’s erectile dysfunction medication to the man’s ex-wife. The long and short of it is, the Arizona Court of Appeals ruled that negligence claims using HIPAA as the patient privacy standard of care could be brought against Costco in Arizona courts.

While data breaches occur in virtually every state, health care providers in Texas have the added burden that the state has led the country in total hacking breaches reported to HIPAA for four of the past five years. In light of other rulings similar to those in California and Arizona, it is no surprise that Texas hospitals have recently been devoting more resources to cybersecurity. The added protection seems to be working—data shows that despite Texas often being in the top two states in terms of total hacking attempts over the past five years, it is further down the list when it comes to individual records actually breached.

Since it is becoming increasingly common for state courts to find HIPAA as the patient privacy standard of care for private rights of action, health care providers should re-evaluate, establish and enforce HIPAA compliance and training programs within their organizations. Otherwise, not safeguarding against HIPAA violations could result in substantial penalties against an organization.

AmSpa members receive a complimentary 20-minute Introductory Compliance Assessment with a ByrdAdatto attorney. Click here to learn how to join AmSpa today!

As the daughter of a periodontist, Courtney P. Cowan has been fascinated by the health care field since childhood. She often accompanied her father to his office, where she developed an appreciation for physicians and their respective practices. Having absolutely none of the dexterity that is required to be a surgeon, however, Cowan instead decided to pursue a degree in business while attending Baylor University. It wasn’t until she was required to take a business law course that she discovered her passion for the law. After graduating from Southern Methodist University Dedman School of Law, Cowan serendipitously connected with ByrdAdatto and now assists clients by combining her business background with her enthusiasm for health care and the law.

Tags:  ByrdAdatto  Med Spa Law  Med Spa Trends 

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Medical Board of California Issues Warning for Hair Restoration Technicians

Posted By Administration, Friday, September 13, 2019

hair restoration

By Michael Byrd, JD, partner, ByrdAdatto

The Medical Board of California (MBC) has warned physicians against using unlicensed persons for hair transplant procedures in the summer issue of its newsletter. (The issue is available here, with the article appearing on page 12.) It states that the MBC has become aware of many physicians or clinics that are employing trained but unlicensed persons, referred to as medical assistants (MAs), to perform or assist with hair transplant procedures. The article gives the example of MAs creating holes or slits in the patient’s scalp using a needle, scalpel or other device as being prohibited. While it does not explicitly state that this is the case, its warning would seem to apply equally to harvesting follicles as it would to preparing the follicle implantation sites.

In California, MAs have a very limited scope of tasks they are permitted to perform. They are permitted to perform only “basic administrative, clerical and technical supportive services,” with several procedures specifically authorized in 16 CCR § 1366. With the exception of puncturing skin or vein for purposes of drawing blood, their other authorized tasks are non-invasive and include tasks such as trimming nails and ear lavage. Likewise, the MBC has stated that MAs may not inject fillers, nor may they fire lasers. The article warns that physicians who violate this restriction are aiding the unlicensed practice of medicine, which can carry penalties of fines or imprisonment. If you are employing MAs in your practice, you will want to carefully review what tasks you are assigning to them and ensure that the delegations are legally permitted.

To learn about legal and business best practices to keep your med spa compliant and profitable, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps and become the next med spa success story.

Michael S. Byrd is a partner at the law firm of ByrdAdatto, a national business and health care boutique law firm with offices in Dallas and Chicago. As the son of a doctor and entrepreneur, he has a personal connection to both business and medicine. He has blended these life experiences to become a leading advocate for doctors and dentists throughout the United States. He routinely lectures at continuing education seminars on the various business and legal issues that professionals face. Outside of health care, Michael has used these same skills to handle sensitive and complicated business matters for entrepreneurs, business owners, attorneys, CPAs, high-net-worth individuals and public figures. He has been named to Texas Rising Stars and Texas Super Lawyers, published by Thompson Reuters, for multiple years (2009-2019), was named a Top Rated Lawyer by the Dallas Morning News (2016), and has been recognized as a Best Lawyer in Dallas in health care by D Magazine (2013, 2016-2019).

Tags:  AmSpa's Med Spa & Aesthetic Boot Camps  ByrdAdatto  Med Spa Law 

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Should I Get Trained or Certified?

Posted By Administration, Thursday, September 12, 2019

medical aesthetics training

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

In this space, we previously have discussed the importance of getting high-quality training and instruction in every procedure you perform, but lately some AmSpa members have asked us if laser and injector courses that offer “certification” are better than “regular” training courses. The short answer is that, for the most part, there is not any recognized certifying or governing body in the medical spa world, so having “certification” in this context may not add much value.

What Is a Certification?

A certification or certificate is essentially a piece of paper. A high school diploma is a certification—it is your high school “certifying” that you attended the required classes and achieved the minimum grades to graduate. However, it does not by itself make a statement about what you learned or how well you really did; after all, the valedictorian gets the same piece of paper as the “C” student. Instead, certifications achieve their value through what other people think of them. This is why a degree from Harvard is more likely to land you a job than one from a regional university; they both may offer fine educations, but one has built a reputation for education that is widely recognized, while the other is not as well known.

It is the same case with certifications for medical spa procedures. A training “certification” is merely a piece of paper saying you attended the training—it does not speak to what you learned. Part of the value of any training comes from the reputation of the instructor or the company that is offering the course. A device manufacturer may offer certifications for their devices, and it may carry more weight than a third-party training, at least in terms of public perception. Conversely, a third-party master class on a single procedure may be more useful than the general device manufacturer’s certification. Like many things, it all depends on context.

As we discussed in a previous article, all the training in the world does not matter if you aren’t legally allowed to perform the task. Similarly, a certificate or certification isn’t going to matter if the regulatory body doesn’t accept or require it. Most state medical and nurse licensing boards recognize the board-certified specialties that are granted by national organizations such as the American Board of Physician Specialties and the American Board of Medical Specialties. In addition, some states require that you attend a specific approved certification course to be a laser technician or medical assistant. These certifications are important because the regulatory body both recognizes and requires them. However, there presently is no nationally recognized accrediting body for medical aesthetic procedures.

State nursing and medical boards are not looking for “certification” in injecting, lasers or PRP—they are looking for documentation of the training and evidence that the training was appropriate. For example, the Oregon State Board of Nursing, which we discussed previously, requires that nurses maintain and provide “evidence of documented education in cosmetics nursing practice and for each cosmetic procedure performed.” The Texas Medical Board requires that physicians keep records of their training in each non-surgical medical cosmetic procedure they perform or delegate, and that training must be appropriate and include a “hands-on” component. Most medical and nursing licensing boards share similar rules.

Do not fall for hype or meaningless marketing terms; instead, look for well-respected and skilled instructors and seek curricula that fit your needs and skill level. Every trainer should be able to verify that you attended his or her course and what was taught there. What matters most is the quality of training you receive—not buzzwords such as “certified,” “specialist,” “approved” or “master.” After all, a licensing board will not care if you are “certified in x” when it is investigating your training credentials and competency.

Tags:  Compliance is Cool  Med Spa Trends 

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Invest in Quality Internet Marketing for Your Medical Spa

Posted By Administration, Wednesday, September 11, 2019

online marketing

By Terri Ross, Terri Ross Consulting

Online presence is one of the most critical elements of a successful marketing program. In the era of technology, many—if not most—prospective patients will first come across your office through an Internet search. Your website must be eye-catching, professional and thorough. It should paint the complete picture of your office: individualized services, state-of-the-art technology and professional staff. In the first few seconds of accessing your website, prospective patients will form an opinion of your office. Therefore, it is critical to invest in high-quality website engineers, content writers and marketing personnel. (Click here to read more about how internet marketing ties into a successful marketing program).

With internet marketing especially, you may be tempted to find ways to cut corners and lower your overall costs. However, doing so will substantially weaken your marketing program and cut into your overall profitability. Invest in a high-quality, experienced marketing team to build a solid online platform for your medical aesthetics practice. The rewards will far outweigh the cost.


Invest in high-quality website engineers or staff from the get-go. While you may be able to find companies to create a website for a low price, the product reflects the cost. And it’s far more complicated to scrap a website and create a new one, especially when you consider that it needs to be properly integrated into search engines such as Google. The takeaway message here is that you’ll spend more money hiring the right team to correct a poorly formed and developed website than you will if you pay to have it done right the first time.


Your website needs to be clean, professional and easy to navigate. Steer clear of flashy designs and complicated navigational tools. You want prospective patients to navigate your website with ease so they can quickly and efficiently learn about the services, products and technology you offer. Make it easy to return to the homepage by having a banner on each page. Keep in mind that many people will access your website through a mobile device, so you’ll want to make sure your website can adapt to any screen. Lastly, make your contact information easily accessible, either in the footer or in the main menu. You don’t want prospective patients to struggle to find ways to get more information or reach out to your office. Make it obvious. Read more about these and other ways to improve your website design in this article from the Huffington Post.


Aside from a clean and professional design, the content is the most critical component of your website. It won’t mean much that your website is easy to navigate if the pages don’t lead to well-developed, informative content. Your website should effectively illustrate all the key details of your office—your services, technology and staff—in a consolidated space. This means you’ll need to invest in highly talented writers and content developers. Writers can either be hired in-house or contracted out. Either way, be careful in your selection; ideally, you want professionals with experience in both the writing and medical fields. Your website content needs to be original—not duplicated from a similar site—in order to be searchable on platforms such as Google. Well-developed website content also will contain robust inbound/outbound links, as well as searchable keywords, phrases and page titles. (Click here to read more about how to successfully incorporate SEO elements into your website content). The takeaway here is that the content on your website needs to be original, professional and searchable.

Link Development

High-quality content goes hand in hand with proper link development. Inbound links are like the gateway to your office—you want them to be logical, well-placed and natural. Ideally, the team you hire for website initialization and content development will have experience in link building. Beware of companies that sell inexpensive links in bulk. More is not always better—in many cases, these bulk-type links are poorly developed and placed on totally unrelated pages, negatively impacting your presence on search engines such as Google. The cost to repair this damage will far exceed the cost of having an experienced SEO team develop high-quality links the first time around.

Return on Investment

There are several important numbers you need to know to track the progress of your marketing program, as outlined in this article. As with every marketing avenue, you’ll need to know your internet marketing return on investment (ROI) every quarter. How many prospective patients first learn about your office through an online search? How many patients inquire about your services through website forms? These are key numbers that will help you determine your projected and actual ROI.

They’ll also help you plan for the future and tailor your marketing program to the times. For example, if you notice a 50% decrease in the number of prospective patients visiting your website, you may need to invest more in SEO and link development. An increased number of well-placed and tailored inbound links will lead to increased online traffic, contributing to your overall visibility. The idea is that this will ultimately lead to increased patient conversion. Keeping track of the numbers allows you to gauge the success of your online marketing plan and implement targeted changes to improve your online presence.

Online marketing is a central element of your marketing program. Invest in a high-quality professional team to develop and maintain a clean, informative and well-guided website.

Click here to 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  Med Spa Trends  Terri Ross Consulting 

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AmSpa provides legal, compliance, and business resources for medical spas and medical aesthetic practices.

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