Posted By Administration,
Thursday, November 1, 2018
By Alex Thiersch, CEO of the American Med Spa Association
Bad outcomes and patient injuries in medical spas are appearing in more and more headlines across the country. It is evident to many who work in the medical spa industry that there are a number of grey areas in the rules and regulations that govern it, and that certain unscrupulous medical spa owners and operators exploit these inconsistencies while sacrificing quality patient care to make money. Media pieces highlighting these bad actors in the industry are appearing with increasing regularity, and even the Doctor Oz show recently highlighted “Rogue Med Spas” that endanger patient safety. These reports express the industry’s problems to the public and, when the public catches wind of a health issue, you can bet that local, state and federal regulators will need to address it sooner or later.
The days of the medical spa industry being the “wild west” are likely coming to an end. So if your practice is not entirely compliant with your state’s medical statutes, it is certainly in your best interest to identify the ways in which it falls short and address them as soon as possible.
Stories such as the Doctor Oz report are not positive for the medical spa industry, but they’re not necessarily hatchet jobs, either—many medical spas are, in fact, operating illegally, and untrained, unqualified employees are burning patients with lasers, among other potentially serious violations.
Medical spas and laser centers have become so popular—and so profitable—that some owners and operators rush to open them and, as a result, they are often not properly formed and not compliant with state and local statutes. Traditionally, there has not been a great deal of enforcement of these violations, but this is changing.
Medical spas have become so prevalent that state regulatory agencies simply cannot ignore them anymore. As is seen in the rise of media coverage of these issues, patients who suffer unforeseen outcomes will not hesitate to complain to the media. Personal injury attorneys have also picked up on the trend—you may have noticed television commercials and print ads calling for clients to sue medical spas and laser centers. The story is out there, and it only takes one aggrieved patient to cause a medical spa’s world to come crashing down.
Although it is undeniable that there is a certain level of non-compliance that exists in the medical spa industry, medical spa owners and operators need to be asking themselves how they can start becoming an industry that regulates itself, so that they don’t have these types of continuing issues with state regulators.
To start on the road to compliance, medical spa owners and operators should take the following steps.
Know the law. While there are grey areas, many answers can be found in state’s practice acts with just a little bit of searching.
Reach out to local health care attorneys for evaluation. Most medical spas only contact a lawyer when they’re already in trouble, not at the front end where the lawyer can help prevent trouble down the road.
Work toward understanding. You goal should be to understand the basic core principles regarding medical practice and realize that, while this is a lucrative industry that is often quite safe, there is still some level of danger.
AmSpa pledges to continue its efforts to educate medical spa owners and operators to make sure that they are operating in compliance with the law. It also aspires to educate the public in order for them to understand the difference between a medical spa that is compliant and one that is not, as well as inform them about what the treatments offered by medical spas actually entail. AmSpa is also pushing for standardization of laser training across the industry—in some states, there are no training requirements, and a lack of proper training can lead to outcomes such as the ones that Doctor Oz aired to the general public.
The industry needs to come together to discuss how it should be regulated, as it is clearly growing and is not going away. There is some guidance in the laws as they are written, but the states do not do a particularly good job in educating the public about what they say and mean. Still, enforcement is ramping up, and medical spa owners and operators must be properly prepared in order to comply and avoid more negative media coverage in the future.
Posted By Administration,
Tuesday, October 30, 2018
By Alex Thiersch, CEO of the American Med Spa Association
In this space a couple of weeks ago, I wrote about the need for self-regulation in the medical aesthetic industry. In that piece, I mostly focused on how medical spa owners and operators can help the industry by observing certain standards that AmSpa is helping to develop. However, the need for self-regulation is not limited to practitioners—it extends to equipment and device manufacturers, as well as clinical training facilities.
After an AmSpa Boot Camp or a consultation where I detail the legalities of laser use, for example, I’m often approached by attendees who say, “I was trained by a laser manufacturer, and they didn’t tell me any of this stuff.” What I’ve found is that there are a lot of people out there who give a lot of disparate information and, oftentimes, it’s not accurate and it leads people to believe that they can do things that legally they cannot do.
We at AmSpa have been working very hard since the organization’s inception to educate not only medical spa owners and practitioners, but also the industry as a whole. If everyone knows the laws under which they operate, everyone can be on the same page.
AmSpa works with many laser manufacturers that have listened to us and acted in very responsible ways. However, I’ve also heard countless stories from people who were told by manufacturers or training facilities that they can do something that they plainly cannot, and they feel like that is unfair.
This is not just an AmSpa problem or a medical aesthetic practitioner problem—it is an industry problem. The entire industry need to be on the same page. Every member of the industry needs to buy into the same set of standards, and we all need to be teaching the people who work in the industry the same thing. It makes no sense and does nobody any good to, say, take a long laser course and learn to perform treatments if a practitioner cannot legally administer them.
Therefore, AmSpa is calling on the entire industry—not just medical spa owners and practitioners, but also device manufacturers, drug manufacturers, and training facilities—to start taking compliance seriously, because it’s the only way for the industry to evolve in a positive direction. Everyone wants to succeed and make money, but if the industry is overly regulated due to negative outcomes and people acting in bad faith, it will be extremely difficult for the industry to become better and larger than it already is.
I’m looking forward to discussing self-regulation with everyone at forthcoming AmSpa Boot Camps. We will be in Orlando next week for our final Boot Camp of 2018, and our just-announced 2019 itinerary includes stops in Los Angeles, Chicago, Atlanta, Seattle, Dallas, New York and Orlando. Click here for more information and to sign up for a Boot Camp near you. We’ll also be discussing this matter at the Medical Spa Show in Las Vegas in February 2019. Click here to learn more about this year’s agenda and event … it shouldn’t be missed!
Posted By Administration,
Thursday, October 25, 2018
By Alex Thiersch, CEO of the American Med Spa Association
Medical spas must use marketing best-practices to succeed, but must also be aware of common patient privacy issues that could leave the practice in hot water. All of a medical spa’s operations must be overseen by both an innovative business eye and a careful, meticulous medical eye. When it comes to marketing, these two perspectives can clash and, if this clash breaches patient privacy, the business can be hit with severe penalties.
Fines for violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA) can be huge, and most states have patient privacy laws that are even stricter than the federal standard. Patient information can include—but is not limited to—email addresses, birth dates, social security numbers, and treatment information. Even the fact that a patient is being treated at your facility can be considered private information.
This is not to say that you shouldn’t engage in marketing; you absolutely should. Digital marketing and social media in particular are cost-effective ways to increase the reach of your business. Problems arise when the drive to grow your client base mixes with the unfamiliarity of or neglect of laws and regulations.
Common Patient Privacy Mistakes
Publicly reaching out to a patient. Engaging with clients is a central tenet of social media marketing. You want to create a sense of connection and community. You must remember, however, that in a medical spa your customers are also patients. Commenting publicly to a client on social media in order to thank them for coming in, or reminding them of a future appointment, or discussing their treatment in any way are all potential breaches of that patient’s privacy.
Responding to comments whether positive or negative. This is risky for the same reasons as listed previously. If patients comment about an experience they had at your business, responding to them can be seen as breaching their privacy, and responding to negative reviews can be especially risky. If, in your response, you inadvertently reveal any private information, then not only do you have a customer who is angry with you, but you also have a customer that can report you for a privacy breach in an industry where investigations from regulators are largely driven by customer complaints. The Washington Post looked into this issue earlier in 2016 and made note of several situations where responses landed businesses in regulatory hot water. “The consumer complained to the Office for Civil Rights within the U.S. Department of Health and Human Services, which enforces HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews.” The Post further notes that the Office for Civil Rights, “is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.” Do yourself a favor and don’t respond to negative reviews.
Publishing photos without proper consent. Before-and-after photos are a powerful method of attracting new patients. Without the proper signed consent forms, however, you cannot publish patient photos to your website, blog, social media, or any other platform. Additionally, if you post photos of your facility or an event at which you’re offering treatments, you should be very careful to ensure you are not publishing a photo showing any patient in the background who has not signed a consent form.
What Can You Do?
The No. 1 rule when mixing marketing with medicine is you must be informed. The defense, “I didn’t know what the law was,” never works. Medical spas are governed by several different licensing boards and a slew of individual laws that vary from state to state, so be sure to consult a health care attorney (preferably with experience with aesthetics) that is familiar with the laws in your state. Know the regulations that apply to your business, and err on the side of caution.
As far as concrete things you can do, keep the following in mind.
For treatment reminders and thank-yous, a personal email or phone call should be used in place of reaching out via social media.
Consent forms are a necessity when displaying any photography of patients or of medical procedures on any platform, and be sure to note that traditional consent forms for before-and-after photos are not necessarily sufficient for using photos on your social media channels.
The best ways to fight bad reviews are providing superior patient care and encouraging your happy customers to post positive reviews.
Also, keep in mind that once you understand what you need to do to protect your patients’ privacy in your marketing, you must train your staff to do the same. Your staff must know the regulations as well as you do, since you will be on the hook for any breach. Establish marketing procedures and guidelines, have them in writing, and make sure your staff knows them backward and forward.
Posted By Administration,
Wednesday, October 24, 2018
By Bryan Durocher, Founder and President of Durocher Enterprises
Retaining patients is one of the keys to medical spa success, and VIP programs can be a huge driver for repeat visits. Loyalty rewards programs are used by some of the most successful businesses including GNC, American Airlines, and most of the credit cards we carry these days. We do not have to reinvent the wheel when it comes to these programs. Offer clients acknowledgement and value added incentives for being your best clients and they are more likely to keep doing business with you on a more consistent basis.
At your med spa everyone’s a VIP (Very Important Partisan, that is). That’s why it’s important to have a Very Important Partisan (VIP) program to create loyalty among your most frequent patients. According to the 2017 Medical Spa State of the Industry Report, only 39% of medical spa practices have VIP programs in place to retain their most loyal clients.
Data collection will begin soon for the 2019 Report and we want to hear from you, so keep an eye out and help us define data in the medical spa industry!
With the Internet and competition it’s more important than ever to keep your hard-won clients shopping with you, since it can cost three to five times MORE to win new patients than to retain your existing ones.
Have them earn points for each service they enjoy and each product they purchase. For every 50,000 points they earn, clients receive a “store” credit worth $50 to spend on services, products, or gift cards.
Be careful, however, of offering rewards for referrals for med spa procedures because of laws regarding fee splitting.
Earning VIP Points – Omni-Channel Earning Clients who interact with you on more than one channel such as receive your newsletter, come to the practice, and follow you on social media typically will spend 18-36% more than clients who just visit for services.
Here’s how your clients can earn points:
Activity Points Earned
Spend $1 at the med spa on gift cards, in store or online – 10 points earned
Spend $1 at the med spa on services, products, series, and memberships, in store or online – 100 points earned
Like and or follow on each of your social media pages Facebook, Instagram, Twitter, Pinterest – 500 points earned for each page.
Sign up for the newsletter – 1,000 points earned
Pre-book their next appointment at time of checkout – 2,500 points earned.
Your system needs to automatically track the points they’ve earned. They can check their balance by asking your concierge, looking at the top of their receipt at checkout, or logging in to their online account (if available).
Redeeming VIP Points
Once they’ve earned 50,000 VIP Points, you automatically send them an email alerting that they have earned a points reward. This requires that they have a valid email address in your system and that they have not opted out to email communication. When they check out of their appointment at the clinic, just alert the concierge to offer if they would like to spend their points and then credit the transaction $50.
Enrolling in the VIP Program
Your clients are automatically enrolled in your VIP program from the first time they make a purchase at the Med/Spa.
The Fine Print
There has to be a catch, right? Not really, but here are a couple of details about how the VIP Program works:
VIP points expire two years from the day that they were issued. So, if they haven’t reached the 50,000-point threshold within those two years, the points may expire.
Points will be awarded at the time of check out. For example, if they refer a friend they will get their points when he/she checks out at the clinic. If they pre-book an appointment, they will earn those points when they check out of that appointment, not when they schedule it, etc.
VIP points may not be redeemed for cash.
No double dipping! Some purchases may not earn points. For example, they won’t earn double points if they buy themselves a gift card and use it on their own purchase. If the spa suspects abuse or other behavior, it can reserve the right to terminate the enrollment in the program.
VIP points are non-transferrable, but they may purchase a gift card with their VIP points to give to a friend.
Consider these other restrictions in your program terms:
May not be valid with some special offers, sale items or special purchases.
The med/spa reserves the right to terminate or modify the program at any time.
Clients may not earn points on purchases or services made using third party gift cards or tender.
Card is only valid for cardholder.
Card must be present to accumulate points.
Points cannot be earned from previous purchases.
Only the cardholder’s purchases are valid towards point accumulation.
Points are not awarded on shipping charges or sales tax. Product returns and other financial adjustments will be deducted from their total points.
Because there is a savings don’t offer VIP points for gift cards purchases that result in earning a bonus gift.
Enjoying treatments at the med spa may be habit forming, resulting in lower levels of stress, increased wellness, and moments of extreme contentment.
VIP Program Example
The Med/Spa has created valuable benefits to reward our most loyal guests and thank you for your patronage, support and trust.
The Med/Spa VIP program provides you with additional opportunities to make your experiences at our Med/Spa more valuable. View your additional opportunities for saving below.
10% off retail purchases
Full Privilege points on product purchases when you spend $300 on product enjoy a $15 product credit in the retail store
Insider savings on new services
ABC Med/Spa gifts for special occasions
5% discount on series purchases all year (VIP use only)
Complimentary Delivery of Gift Cards and Gift Boxes
10% discount on gift card purchases during the months of Jan., Apr., Jul. and Oct.
Ask a concierge or your service provider about additional discounts
ABC Med/Spa VIP program cost for annual membership:
$500 for an individual (saving) or $50 per month
Membership can be paid up front or automatically deducted from your account each month.
The ABC Med/Spa VIP program provides savings based on anticipated use. Memberships will expire 1 year after the date of purchase. There are no refunds, credits, or cash given for “unused memberships.”
The VIP program renews annually upon each client’s enrollment date.
You will need to create signage and information about your program to create awareness among your team and client base.
Signage can involve large posters throughout the business, station and treatment room signage, POP displays, and flyers for the retail bags when purchases are made. A banner across your website promoting the program is a good idea!
Other marketing tools to promote the program are business newsletters and e-mail marketing to your data base.
Additionally, you can offer your team member incentives for each VIP membership they sell. For the Front desk, you can offer an override to the team based on total sales.
Bryan Durocher is the author of Wakeup Live the Life You Love in Beauty, and is the founder of Essentials Spa Consulting and Durocher Enterprises. Durocher was named one of the “Top 20 People to Know in the Beauty Industry” by Global Cosmetic Industry magazine, and provides coaching, consulting, global industry trends, and marketing solutions for medical spa, spa and industry professionals internationally. He has published many articles and has provided business education internationally at a variety of national and international industry events including AmSpa’s Medical Spa & Aesthetic Boot Camps and The Medical Spa Show.
Posted By Administration,
Thursday, October 11, 2018
By Alex R. Thiersch, Founder and Director of the American Med Spa Association
Med spa ownership, delegation requirements, HIPAA, and fee-splitting are common issues to consider when coming up with your medical spa’s compliance plan, however it is vital that you do not overlook Occupational Safety and Health Administration (OSHA) standards in your medical aesthetic practice. You may not even know what OSHA is, what it does and why it does it. It’s time to change that. In fact, it’s mandatory that medical spas follow OSHA standards—your business depends on it.
When Lori Marshall, a physician's assistant at the West Side Medical Spa, reported to management that she had been stuck by a contaminated needle during a procedure, nobody knew what to do. When she tried to convey to management the need for procedures, she was told to wash the puncture site and get back to work. Lori felt betrayed and angry. At her husband’s suggestion, Lori called the Occupational Safety and Health Administration (OSHA) and reported the incident. Within hours, Lori was contacted by an OSHA compliance safety and health officer (CSHO), who took a detailed statement from Lori, and advised her that they would schedule an immediate site visit.
Two days later, an OSHA CSHO walked in to the West Side Medical Spa and identified herself to management, and advised that they were there in response to a complaint. Throughout the next three days, all employees were interviewed, and all documents and records were reviewed. Within a matter of weeks, West Side Medical Spa received a letter containing the following citations and penalties.
•No written bloodborne pathogens/exposure control plan $4,500
•Failure to train employees in BBP within 10 days of hire $2,500
•Failure to provide medical follow-up after an exposure $2,500
•Failure to maintain required needle stick logs $1,500
•Failure to include employees in selection of safe medical devices $2,500 Total penalties $13,500
This scenario is based on an actual event, and all names have been change to avoid actual identification of the employee or the employer.
What is OSHA?
The Occupational Safety and Health Administration (OSHA) is part of the United States Department of Labor. It was created by the Occupational Safety and Health Act of 1970, and its mission, according to the act itself, is “to assure safe and healthful working conditions for working men and women.” OSHA protects most private-sector workers in the United States, though its standards are typically associated in the public consciousness with industries such as construction and agriculture—fields in which physical labor is a major part of jobs, and workers may easily suffer injuries—or worse—if improperly trained.
However, medical spas and medical aesthetic facilities also must follow a number of OSHA standards, which may come as a surprise to their owners and operators. Often, unless these are followed, a business can be fined tremendously and ultimately, it can be shut down.
“Sadly, many medical spas may not even be aware that OSHA standards apply to them,” says Steve Wilder, president of Sorensen, Wilder & Associates, a safety and security risk management consulting group specializing in health care. “Medical spas are considered health care entities; therefore, they are subject to the health care requirements of OSHA.”
OSHA standards for medical spas
According to Wilder, medical spa owners and operators must comply with seven particular OSHA standards.
• Bloodborne pathogens—exposure control plan;
• Hazard communication;
• Slips, trips and falls;
• Workplace violence; and
• Laser safety.
The specific requirements for each standard can be found on OSHA’s website (www.osha.gov). In general, compliance for each standard requires commitment from management and employees; workplace analysis; detailed hazard prevention and control procedures; the completion of training programs; and detailed recordkeeping utilizing OSHA’s Form 300 log and Form 300A summary.
“If you’ve got the proper programs in place in those seven areas, including the written programs, the training programs and everything that’s required, you’re going to be in pretty good shape,” says Wilder. “It can be expensive, but there are a lot of alternate ways around it. You can find different ways to be creative—such as online training—and still meet the intent of the requirement.”
What Happens If I Do Not Comply?
If OSHA conducts an audit on your medical spa and finds that it is in violation of workplace standards, you will be fined a considerable amount.
“OSHA has enforcement authority under the federal government,” says Wilder. “The standards that they develop can be enforced under penalty of law. What that means is that if they come in and audit a health-care provider—whether it’s a spa, hospital, nursing home, an ambulance or whatever—and they identify places in which the health-care provider is not compliant with the standards, they then have the authority to issue monetary fines.”
And those fines can be severe. OSHA can issue a fine of up to $7,500 for a first offense, though it is more likely that such a fine will be in the range of $1,500 to $5,000, depending on the severity of the deficiency. It is also important to keep in mind that each additional violation will result in an additional fine, and these fines can quickly add up. What’s more, you cannot be insured against such fines, so they will come directly off of your bottom line.
“I looked at [a case] for a nursing home client a couple of months ago and, when OSHA got done with them, their total penalties were more than $45,000,” explains Wilder. “And with no insurance to cover it, that’s a heck of a bite.”
And if a violation for which you have already been cited is found during a subsequent visit, or if said violation is found at a different location that is owned by the same person or company, OSHA has the authority to fine you up to $75,000 for that violation.
“You need to take it seriously,” cautions Wilder. “OSHA is not getting any gentler; they’re not getting any more workplace-friendly. Expect them to be really aggressive in infection control in all areas of medical care. Their focus is protecting employees, so anywhere that employees can get exposed to an injury risk or to an illness risk, they’re aggressive about it.”
Knowledge is Power
Bringing your medical practice up to OSHA code is not an option. It’s a necessity and OSHA does not accept ignorance as an excuse. Now that you know what is expected of your business, you must take the necessary steps and move forward in order to avoid major financial penalties that very easily could result in the closing of your business. Click here to read more articles about med spa law topics and how they could affect your business.
By Patrick O’Brien, Legal Coordinator for the American Med Spa Association
Medical spa medical records are a piece of your compliance plan that cannot be overlooked. It’s easy to look past them when considering other parts of building your business, but they are vital to your practice. According to our 2017 State of the IndustryReport med spas indicated that 70% of their clients are repeat customers. This is a wonderful statistic to read because loyal customers are happy/satisfied customers and they can and will generate great recommendations and buzz for new customers. But these loyal clients and customers are much more than that; they are also patients. Because most of the procedures offered in med spas are medical procedures the practice must retain appropriate records just as any other clinic or doctor’s office would.
The content and retention requirements for medical records are set by each state and their respective medical boards. In general the records should include, among other things, medical histories, exam notes, details of procedures and treatments. Typically these should be kept for several years after seeing the patient with the two years that New Mexico requires being the shorter side and 10 years as in Tennessee and South Carolina being on the longer side. Physicians may be subject to Board discipline for failing to properly maintain and keep patient records, so you will want to review your own state statutes and advice of your medical board to determine what information should be kept in the medical records and how long you should keep them.
The 2017 industry survey also uncovered this interesting stat: half of med spas we heard from see more than 50 patients a week. This is great from a business perspective, but daunting from a record keeping perspective. Every one of those visits will need an entry made in that patient’s records, and the med spa’s records system, in addition to being able to keep up with the volume of updates, will also need to comply with Federal and State privacy laws.
The big one is the federal Health Insurance Portability and Accountability Act (HIPAA). I’m sure you’ve heard more about HIPAA than you ever cared to so I won’t bore you with too much detail other than to say patient medical information needs to be securely stored and accessible only to authorized individuals. Most states also have a version of a patient information privacy law with similar concepts.
While the general gist of the laws are “protect patient information” you’ll need to check your jurisdiction for specific implementation requirements. For instance California has the Confidentiality of Medical Information Act which has stricter requirements on when and who you can disclose confidential health information. AmSpa members can check their state’s medical aesthetic legal summary, or utilize their annual 15-20 minute complimentary compliance call with ByrdAdatto for more specific information.
It takes a lot to build a successful med spa and the more successful it becomes the more important it is to have a streamlined and secure medical record system and policy. Don’t let paperwork be a limitation on your Spa’s success. If you want to learn more about record retention policies and systems consider attending one of AmSpa’s Medical Spa & Aesthetic Boot Camps to learn medical spa legal and business best-practices.
If you liked reading through our 2017 State of the Industry Report we will be gathering data for 2019 survey soon. Did your spa see more customers this year? Did you add new service lines? Or bring on more staff? We hope to hear from you so together we can define data in the medical spa industry.
Posted By Administration,
Tuesday, October 2, 2018
By Alex Thiersch, JD, Founder and Director of the American Med Spa Association
Certifications are common in medical spas, but some of them mean more than others. In some cases, for instance, a certification doesn’t necessarily even mean you can perform the treatment in your state. Understand the difference between Board Certification, training programs that offer certificates, and state licenses so you don’t end up purchasing equipment you can’t legally use or worse, on the wrong side of an investigation.
In many fields of medicine, board certification can inform patients of a doctor’s specialization and help them choose which doctor is right for them. In the medical aesthetic and medical spa space, however, there are multiple types of certification to consider, and determining which are meaningful and which should be looked at with some trepidation is a dilemma for both consumers and medical spa operators.
“Board certification” is a state or nationally recognized certification by a board that has been created to keep certain standards in a particular profession. For example, in order for a plastic surgeon to achieve board certification, he or she must go to school, train for a certain amount of time under another surgeon, and take a board exam, among other requirements. There are numerous specialties in which a doctor can achieve board certification, including obstetrician/gynecologist, family practice, neurology, and general surgery.
These certifications are extremely precise, and they help inform consumers who are searching for a very specific type of doctor. If you need surgery, for instance, you are going to look for a board-certified surgeon, because this guarantees that the surgeon in question has met a governing body’s standard, and it can be presumed that standard is reasonably high.
However, in medical spas, you’re much more likely to come across people who claim to be certified in areas such as laser use and injectables. This is a whole different world of certifications—these are not based on state or national standards, since those standards don’t yet exist, generally speaking. (Some states—including Georgia, New York, and Texas—have enacted laser certification laws that provide for a certain level of training, but the focuses of these certifications is very narrow and typically are relegated to laser hair removal. See AmSpa’s medical aesthetic legal summary to see if there are aesthetic certifications in your state.)
The “certified” laser technician is the most common of these types of professionals, but being certified in laser use typically means that a person passed a course administered by the manufacturer of a laser he or she is using. In most cases, this does not, in any way, mean that a state medical board or state licensing board recognizes that training as being substantial enough to warrant certification. Any private company can train someone and provide a certificate that states the person completed that training. In fact, many people who complete these courses declare themselves to be “certified,” but this is not the same thing as being board-certified.
In the medical aesthetics industry, many of these certifications are available, but none should provide the public with the same level of confidence that a doctor’s board certification does. It is up to the medical spa industry and the providers of the services to ensure that the public is not misled.
Additionally, these certification classes may offer some level of training in the procedure but generally do necessarily allow a practitioner to perform the treatment in their state with or without supervision or delegation of a doctor. Check with your state boards, the AmSpa legal summary, or an attorney familiar with aesthetics before offering a new procedure.
Truth in Advertising
Medical providers are bound to very specific requirements when it comes to advertising. If you say you are certified in something, you need to be able to prove that’s true. If a laser tech is certified by a laser manufacturer rather than an actual medical board, this must be made clear in any public-facing material. And though this should go without saying, a certification to fire a laser in a particular state is very different than a license to practice medicine, so saying that anyone other than a doctor is “board certified” likely is a good way to get a practice investigated.
(Note: Physician assistants can be certified through the National Commission on Certification of Physician Assistants, but this also does not imply a focus on aesthetics. The NCCPA provides an online tool to check if someone with a PA-C has actually been certified by the organization.)
All practitioners need to be careful about how they represent themselves to the public, and they need to be somewhat wary when a laser company says it can certify someone for a particular procedure, because that does not necessarily mean that the state recognizes their ability to perform it. Ultimately, responsibility and accountability lies with the on-site doctor to determine if a person is able to perform a procedure, regardless of whether or not he or she has been certified by a manufacturer.
By Patrick O’Brien, J.D., Legal Coordinator for the American Med Spa Association
The Federal Trade Commission (FTC) recently announced their first ever enforcement action against a provider of intravenous therapy (IV therapy) for making unsupported claims about the health benefits of their IV treatments. You can read the complaint and press release by clicking here. But in brief the FTC alleges that iV Bar’s website contained multiple false, and unsubstantiated representations as to the clinical or scientific effectiveness of the treatments. Setting aside the merit of the FTC’s claims, this case does highlight a hidden danger of medical spa and IV bar ownership: advertising.
Advertising is a critical part of a successful med spa or IV therapy clinic. Effective advertising is vitally important in attracting new patients and informing existing patients of other services you offer. You want to let consumers know of your expertise, the benefits you can provide, and to distinguish your practice above your competitors. However, med spa and IV therapy clinic advertisements, as with other medical practices, fall under several layers of rules and regulations. Since advertising by its very nature is easily accessible out in the public sphere it makes it a simple matter for regulatory bodies to locate advertisements that violate the laws. Therefore it is beneficial for med spa and IV bar owners to have at least some familiarity with the limitations of what they can say in ads.
In addition to the Federal Trade Commission Act, many states have adopted some form of a deceptive trade practices act designed to protect consumers from fraudulent and deceptive advertising and statements. These are usually enforced by the State’s attorney general and many provide private rights of action allowing the consumer to sue the business directly. For example the Texas Deceptive Trade Practices Act makes it a deceptive practice to represent that goods or services have approval, uses, benefits which they do not. Damages in the Texas statute can include compensation for economic and mental anguish and if the court finds that the conduct was “knowing” and “intentional” it can result in three times the economic and mental anguish damages being awarded to the consumer.
Medical Licensing Boards
Med spas and IV therapy clinics are medical practices and as such will fall under their state’s rules for physician advertising and professional conduct. Many state Medical Practice Acts, including Florida’s, prohibit physicians from using false, deceptive, or misleading advertising or as is the case in New Hampshire claiming professional superiority. Even if not explicitly in the statutes, state medical board’s ethics rules and opinions often contain similar prohibitions. For a good general overview there are the American Medical Association’s ethics opinions such as this one which states, in part:
Because the public can sometimes be deceived by the use of medical terms or illustrations that are difficult to understand, physicians should design the form of communication to communicate the information contained therein to the public in a readily comprehensible manner. Aggressive, high pressure advertising and publicity should be avoided if they create unjustified medical expectations or are accompanied by deceptive claims. The key issue, however, is whether advertising or publicity, regardless of format or content, is true and not materially misleading.
Often, state medical disciplinary boards are influenced or adopt guidelines similar to the AMA’s.
The business name you advertise under can also be subject to various rules. Several states, one such being California, prohibit a physician from doing business under a name different than their own unless they obtain a fictitious or assumed name registration. Still other states limit the use of words such as “spa”, “clinic”, or “medical” unless certain requirements are met or procedures offered.
AmSpa members can utilize their annual compliance consultation call with the law firm of ByrdAdatto to understand the medical advertising requirements in their particular state.
False, misleading, and deceptive. If you feel like you are seeing a trend you are right. Generally these laws and boards use similar language to protect consumers and patients. However the specific interpretation and implementation of these terms is not identical and one type of ad or commercial may be acceptable in one state and not in another. So before you launch a “too good to be true” campaign you would do well have it reviewed by your counsel or to read up on your jurisdiction’s advertising rules.
Patrick O'Brien grew up in west Texas loving the outdoors and Scouting, earning the rank of Eagle Scout. After attending Southwestern University, he worked in Margin trading with a major investment brokerage. There, he saw how yesterday’s decisions affect tomorrow, and learned how to proactively navigate situations to give clients the best possible outcome. This problem solving inspired his return to school and pursuit of a law degree from Southern Methodist University. He brings his legal training and business acumen to AmSpa to get ahead of legislative changes which affect our members. When he is not in the office he enjoys reading the same book to his toddler for literally the twentieth time today. But he laughs every time so it is worth it. He also loves cooking and spending time outdoors with his wife, son, and loyal hound.
Posted By Administration,
Friday, September 21, 2018
By Michael S. Byrd, Partner, ByrdAdatto
Compliance is cool, but do you have a compliance plan? Are you aware of any state laws that could affect your med spa ownership structure? A common problem among clients is the struggle with this common question: When do you need to hire a business attorney? Consistent with the adage “an ounce of prevention,” our most successful business clients follow the 5/50 rule.
The 5/50 rule is actually a choice we present to our clients when this very question is posed. The choice is whether the client would like to pay $5 now to proactively structure their business, set up compliance protocols, or address legal issues in their business. The alternative choice is to do nothing now and pay $50 to clean up the mess later. Though admittedly we should adjust the rule to realistic dollar comparisons, the 5/50 ratio is realistic. In making the choice more personal by drawing an analogy to one’s personal health, we ask our clients whether they would rather stick to an annual wellness treatment plan and pay the associated costs or go to the doctor and react to a stage 4 cancer diagnosis.
Our clients often then ask how to know whether they are properly using legal counsel to guide their business. A great litmus test is to look at budget and spending for legal counsel for the business. If a business has budgeted or spent under $12,000 in an uneventful year for legal fees, the business is not utilizing legal counsel proactively. Most on-going businesses spend between $18,000-$30,000 per year when using counsel to advise and proactively address the legal needs of the business. Smaller businesses or single-owner physician practices may spend less, but still be in the $12,000 range on the low end.
The first step to change how and when legal counsel is used is to shift thinking in budgeting and shift thinking on utilization. Good attorneys think strategically and creatively and can be a great confidante for new business ideas or issues. Start calling your business attorney as a sounding board to work through these ideas and issues. It does not have to be lonely at the top.
ByrdAdatto has created a platform to ease this transition. Specifically, our Access+ monthly retainer program creates a set monthly fee for a defined scope of work suitable for the typical needs of a business. The key to this program is unlimited access by phone and email to the attorneys at ByrdAdatto. The hope is that this will incentivize proactive communication with us to help keep the business on the 5 side of the 5/50 rule.
For more ways to build and run your medical spa practice legally and profitably attend an AmSpa Medical Spa & Aesthetic Boot Camp and be the next med spa success story.
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).
Posted By Administration,
Thursday, September 20, 2018
By Renee Elise Coover, JD, ByrdAdatto
Physicians in the medical spa industry are lured by the lucrative income and flexible nature of med spa ownership but as the popularity of this business model increases, so does the risk for liability.
The number of med spas in this country is at a record high. Dermatologists, plastic and cosmetic surgeons are opening med spas or adding med spa services to existing practices as the demand for non-invasive cosmetic procedures rapidly grows. Additionally, non-core physicians, mid-level practitioners, and entrepreneurs are beginning to outpace core doctors in the medical spa space, according to the 2017 Medical Spa State of the Industry Report.
Though med spas offer non-invasive and fairly simple medical treatments like Botox and laser hair removal, these procedures carry the same risk of litigation as any other medical procedure. Due to the aesthetic nature of the treatments and spa-like setting where most treatments are performed, there is a public perception that med spa procedures are risk-free. This misconception has contributed, in part, to the recent rise in litigation, putting med spas in the spotlight for all the wrong reasons.
Physicians now must be especially cautious when signing on as a “medical director” of a med spa, offering med spa-like treatments or opening a med spa of their own. As the saying goes, ignorance is not an excuse; but for many physicians, ignorance of the law can also cost them their license.
There are several common patient allegations that put physicians at risk of losing their medical license. Lawsuits are often filed by patients due to allegations of lack of supervision of medical treatments, inadequately trained med spa personnel, less than optimal results, and lack of informed patient consent.
For more information about medical malpractice lawsuits listen to the recent episode of AmSpa’s Medical Spa Insider podcast with patient advocate law firm Sukhman|Yagoda.
Perhaps the most problematic issue that most patients are not even aware of is improper ownership of the med spa. In many states med spas must be physician-owned in accordance with that state’s medical practice rules, but many physicians either do not know the laws or they are trying to get around them. If a physician signs on as a “medical director” of a medical spa but has no ownership and no supervision of the medical procedures, the med spa will be charged with the unauthorized practice of medicine in several states and the physician could lose his or her license.
In Illinois, the Department of Professional Regulation has put med spas on their radar and in the past few years, hundreds of physicians have been fined, suspended or lost their licenses due to allegations of improper ownership or lack of supervision in the med spa setting.
Physicians must be very cautious when opening a med spa or offering med spa services as part of an existing practice. To reduce the risk of liability, physicians should educate themselves and their staff regarding written protocols, relevant laws and regulations for their particular state, legal and regulatory issues associated with med spas, adequate supervision and proper delegation of medical procedures, and risk management.