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Understanding the Legal Issues in Med Spa Advertising

Posted By Administration, Wednesday, April 10, 2019

advertising marketing

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

Medical spas are medical practices, so they are bound by the laws governing medical advertising. As soon as you are involved in any kind of medical treatment, you are subject to very strict requirements when it comes to advertising your practice.

Digital Age

According to the 2017 Medical Spa State of the Industry Report, digital marketing practices—specifically websites, email and organic social media—are the three most common marketing techniques for medical spas. Businesses cannot simply rely on word of mouth or good reviews attract customers—they must create effective promotional campaigns because there is so much competition and because the industry is cash-based, rather than insurance-based. Therefore, it is easy for medical spa owners and operators to slip into the retail mindset that they are going to do whatever they need to do to get people to come in. And while we do, in fact, encourage people to run their medical spas in such a manner, it is important to keep in mind that these practices are, above all, medical practices, so they are subject to the same rules and regulations that govern more traditional medical institutions.

Telling the Truth

All state medical boards have certain requirements for medical advertising. Most are relatively similar, but practitioners need to look at and understand their state laws regarding advertising. These regulations are typically fairly easy to find, and most are generally similar in that they require absolute, verifiable honesty.

Unlike, say, a car dealership or a furniture outlet, a medical outlet makes must be able to prove the claims it makes are true. For example, if you say, “Our nurses are the best injectors in the country,” that is likely to attract some unwanted attention—a medical board or nursing board is going to see such a claim and ask what it’s based on. It’ll ask where the proof of this is, and unless you’re prepared to submit something to that effect—which, obviously, is not possible—your practice could be in some trouble.

In the past, if you read the in-flight magazines from the major airlines, you may have seen lists of “best doctors in America.” If you’ve looked at these publications in recent years, however, you may have noticed that these lists have been changed to say “among the best doctors in America,” because that is at least somewhat truthful, and the doctors mentioned in these pieces are concerned about compliance too.

Troublesome Titles

Whether it’s in marketing collateral, on social media, or in influencer marketing, everything that’s said about your medical spa must be objectively verifiable. You can achieve this by citing your credentials and your certifications. We previously wrote about misleading titles that are used by some medical spa employees, and those merit mention here too—if you refer to an employee as a “medical aesthetician” or a “certified laser technician” in your advertising materials, you’re asking for trouble—you have to prove your employees are what you say they are, and in cases such as these, it simply can’t be done.

Under the Influence

Speaking of influencers, there also are a number of issues regarding social media in general and influencer marketing specifically. First and foremost, the FTC recently introduced a list of guidelines regarding proper disclosures that must be in place for compliant social media influencer marketing.

If you’re not sure your advertising is compliant, you can always ask your lawyer to evaluate it before it’s posted. Some state boards will even permit you to submit ads to them for review to make sure they’re compliant, although this process tends to take quite a while. Regardless, it’s very important that your practice does what it can to maintain compliant advertising, because the penalties for violations can be severe.

For more information on medical spa laws in your state, check your medical aesthetic legal summary. To learn more about legal and business best practices, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps and start on your road to becoming the next medical spa success story.

Tags:  AmSpa's 2017 Med Spa Statistical Survey  AmSpa's Med Spa & Aesthetic Boot Camps  Business and Financials  Med Spa Employee Types  Med Spa Law  Med Spa Trends 

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Join AmSpa at the L.A. Medical Spa & Aesthetic Boot Camp

Posted By Administration, Wednesday, April 3, 2019

la boot camp

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

We are just a few days away from AmSpa’s Los Angeles Medical Spa & Aesthetic Boot Camp at the Sofitel Los Angeles at Beverly Hills, and we’re extremely excited for the opportunity to help medical aesthetic professionals develop their practices. There's still time to register for the event—just click here to sign up. Here’s a quick overview of the program:

Friday, April 5

Prior to the Boot Camp, AmSpa will present a special after-hours tour of the Lasky Aesthetics & Laser Center, one of the most successful medical spas in the United States. This event, which is sponsored by BTL Aesthetics, takes place from 5:30 – 7:30 p.m. PST and will show attendees how this well-appointed practice makes its clients comfortable while providing a high standard of service. Space for this exciting event is limited, so click here to register.

Saturday, April 6

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

  • 9 – 10:30 a.m.: The Plan, presented by Bryan Durocher (Durocher Enterprises)—What are the most effective ways to develop a business plan for your medical spa? Medical Spa Consultant Bryan Durocher discusses the ins and outs of the planning process and helps determine how long it realistically takes to open a practice.
  • 11 a.m. – 12 p.m.: The Marketing Plan and Social Media, presented by Brandon and Jenny Robinson (Skin Body Soul MedSpa)—This session will help you determine how to most effectively market your medical aesthetic practice using both traditional methods and cutting-edge techniques.
  • 1 – 1:30 p.m.: Medical Aesthetic Hot Topics Panel, featuring Toni Lee Roldan-Ortiz (Environ Skincare) and Tim Sawyer (Crystal Clear Digital Marketing)—This panel, moderated by yours truly, will feature a spirited discussion of the current issues and events that concern medical spa owners and operators.
  • 1:30 – 3:30 p.m.: The Law, presented by Alex Thiersch (AmSpa) and Michael Byrd (ByrdAdatto)—In this presentation, we’ll discuss the long-standing and emerging legal issues that every medical spa owner needs to know about. As you can imagine, there is a lot to cover here, since new concerns seem to be arising daily lately.
  • 4:15 – 5 p.m.: The Treatments, presented by Terri Ross (Lasky Aesthetics)—Learn about the most profitable and popular treatments available to your practice, and find out how to best determine which treatments are right for you based on the state of your practice.
  • 5 – 6 p.m.: The Digital Marketing Ecosystem, presented by Tim Sawyer (Crystal Clear Digital Marketing)—Find out how to effectively spread the word about your medical aesthetic practice and how best to determine what’s working and what’s not. Your practice’s digital presence is more important than ever before, and curating it should be a top priority.

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

Sunday, April 7

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

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

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

We hope you can join us in Los Angeles this weekend. This AmSpa Boot Camp is a tremendous opportunity to get your medical aesthetic business headed in the right direction and learn some tips and tricks that can take it to the next level. Click here to register!

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

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How Do You Open a Med Spa?

Posted By Mike Meyer, Monday, April 1, 2019
Updated: Tuesday, April 2, 2019

open for business

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

Opening any business involves numerous complications that are difficult to predict and prepare for, but opening a medical spa is significantly more complicated than creating most other types of businesses. After all, a medical spa requires high-level business acumen, a thorough understanding of local medical rules and regulations, and dedicated, properly trained employees in order to succeed.

That’s a tall order when you’re just starting out, but help is available. If you find yourself overwhelmed by the obstacles in your way, you may want to attend one of AmSpa’s Medical Aesthetic Boot Camps. Early-bird registration for the Chicago Boot Camp—which takes place at the Chicago Marriott Southwest at Burr Ridge on May 4 – 5—ends at 11:59 p.m. EST on April 4, so if you’re near the Windy City and want to learn more about how to make your medical spa a success from day one, you can do so at a discounted rate until then.

Develop a Business Plan

Creating a detailed business plan is a vital step for any prospective business, and a medical aesthetics practice needs to address an unusual number of issues. Where will the business be located? How will it be designed? What will set it apart from its competition? How will you go about recruiting talented employees? What will you do to attract patients? What types of patients do you wish to attract? All these questions and many more will need to be addressed at the earliest stages of your business’ development.

Learn About Compliance

New medical spa owners might not know much about the rules and regulations they’ll be expected to follow when they enter the medical aesthetic industry, but it is important that they learn as quickly as possible. The “medical” part of the equation makes operating a medical spa much more complex than it would be if it was simply offering aesthetic services such as facials and manicures. The practice’s ownership structure must be developed in accordance with state laws, and that’s just the start—all medical treatments must be performed with proper supervision, and all marketing must be conducted with special attention paid to patient privacy and other factors. Regulations vary from state to state, so there is no one way to approach this, but it is extremely important that you develop an understanding of what is expected of a compliant practice.

Plan for the Future

The medical aesthetic industry is constantly changing, and understanding the metrics that provide the best insight into medical spa success can help keep you ahead of the curve. It is also important to learn how to efficiently operate and maintain the value of your practice. Your practice is about to become your life, so you need to know what you can do to make it as healthy as possible for as long as possible. And while you probably won’t want to think too much about your exit strategy while you’re opening your practice, it’s probably worth having that conversation with your partners, financial consultants and attorneys, as well.

These topics and many more are addressed at AmSpa’s Medical Aesthetics Boot Camps. If you are preparing to open a practice, it’s certainly worth your while to attend one near you. Early-bird pricing for the Chicago Boot Camp can be secured until 11:59 p.m. on April 4, so if you want to attend, click here to register. If you can’t attend the Chicago Boot Camp, keep in mind that subsequent 2019 Boot Camp events are scheduled for Atlanta, Seattle, Dallas, New York and Orlando; early-bird pricing is available for all of these events right now, so sign up today.

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

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Who Can Perform Microneedling?

Posted By Administration, Wednesday, March 27, 2019

microneedling

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

Microneedling is a popular procedure in med spas, but many owners and practitioners do not know if aestheticians can legally perform the treatment. As is the case with many regulatory issues in the medical spa industry, the answer can vary depending on what state you practice in. In much of the United States, however, the answer likely is no.

Also known as collagen induction therapy, microneedling is a minimally invasive treatment that is designed to rejuvenate the skin. A device with fine needles creates tiny punctures in the top layer of the skin, which triggers the body to create new collagen and elastin.

Is It Medicine?

An aesthetician’s license does not permit him or her to perform medical treatments; rather, aestheticians may only perform procedures for the purpose of beautification. Many med spas look at these standards and assume that aestheticians can perform microneedling; however, many state regulatory boards specifically are classifying microneedling as medical treatment, no matter whether the needles actually penetrate the outer layer of the skin.

Illinois and California, for example, specifically listed microneedling as medical treatment in 2016 because they classified the device as medical equipment. At an American Med Spa Association Medical Spa Boot Camp in San Jose, Calif., Kristy Underwood, executive director of the California Board of Barbering and Cosmetology, gave additional details as part of a 30-minute Q&A session.

“This isn’t new—aestheticians cannot penetrate the skin,” Underwood said. “They also can’t use any metal needles, period. [California] aestheticians are prohibited from using metal needles.” She added that they cannot use anything that might be disapproved by the FDA.

For more business and legal med spa best practices, attend an AmSpa Medical Spa & Aesthetic Boot Camp near you.

Supervision & Delegation

In some states, however, people holding aesthetician licenses can perform certain medical procedures. These states differentiate between an aesthetician and a person who is performing medical procedures under the supervision and delegation of a physician.

This means that if the patient is first examined by a physician or a mid-level practitioner—a nurse practitioner or a physician assistant—an individual working in a medical spa may perform microneedling. However, it is very important to note that if aestheticians are going to perform this procedure under this caveat, they cannot represent themselves as aestheticians while doing so. This means aestheticians must flip over their aesthetician name tags and take down any certification they might have hanging on the wall.

The state may allow an aesthetician as a person to perform this procedure under proper medical supervision; however, the regulatory board does not cover this under an aesthetician license.

This sounds onerous, and it is certainly involves more effort than a facial or another aesthetician service, but this does not have to be a deal-breaker for offering microneedling services in your medical spa. The supervising physician does not need to be in the room watching the aesthetician perform the procedure and, in many states, does not need to see the patient before each treatment—just the first one.

The More You Know

Regulations can vary greatly depending on where a business operates, so it is very important to know the laws that govern medical aesthetic businesses in your state. When in doubt, consult an attorney in your state who is familiar with aesthetics.

AmSpa members have access to legal summaries of the laws regulating medical spas in their state, as well as an annual complimentary compliance consultation with the law firm of ByrdAdatto.

See AmSpa’s Treatment Directory for more information on microneedling.

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

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You Can’t Pay for Patients and Call it “Marketing”

Posted By Administration, Friday, March 15, 2019

money changing hands

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

Finding customers is the biggest challenge for any business. You can offer the finest product or the best service, but none of it will matter unless you can find people willing to walk in the door and buy from you. Therefore, marketing and advertising are critical to a business’s success. This is especially true for medical spas and others in the aesthetic health industry. There are many effective marketing strategies to use, each with its own legal issues. We’ve previously written about issues with email marketing and text message marketing.

The referral is one of the most effective marketing tools. Satisfied customers can be your best advocates and salespeople by simply going out into the world and telling their friends about how great you are. A recommendation from a friend or trusted acquaintance can be hugely credible, so incentivizing people to make more of these referrals for you might seem like a great idea. However, since medical spas offer medical procedures, they are subject to a slew of laws that make rewarding referrals very difficult to do.  Many states prohibit physicians or licensed healthcare providers from paying or accepting money or other types of value for referring a patient.

Consider the ongoing saga of Forest Park Medical Center in Dallas, where doctors (allegedly) enacted an elaborate plan of paying other physicians for referrals to the center for elective surgeries and ran afoul of anti-bribery laws. Forest Park apparently was paying hundreds of thousands dollars per month to physicians for referrals and calling it “marketing.” Obviously, most medical spas are not able to pay millions a month in “marketing,” and very few seek reimbursement from insurance. So what do they have to worry about? Texas’ patient solicitation law prohibits paying “any remuneration in cash or in kind” for “securing or soliciting” a patient. (Confusingly, this particular law is not the one at play in the Forest Park case, but it does apply to other Texas medical practices). So while it might seem nice to give a gift card to someone for bringing a patient to you, it very likely is an offense under this section.

Texas isn’t the only state to look unkindly at paying for patient referrals. Many other states have similar “anti-kickback” laws or general prohibitions on physicians “fee-splitting” with others. New York, for example, clearly prohibits a licensee from offering, giving or receiving any fee or consideration to a third party for the referral of a patient. If you think this seems broadly written, you would be correct—and New York and Texas are far from the only states that have laws such as these on the books; most traditionally have viewed paying for referrals as subverting a patient’s interests. After all, the patient is relying on the person to provide a recommendation that is in his or her best interest, and the introduction of a financial motive may influence that recommendation.

You also may notice that payments for more traditional advertising could fall into this broad definition if the fee is based on results. Depending on the specific facts of the case and the state in which it occurs, this could be the case. California has accounted for this possibility by providing an exemption for certain advertising relationships in its anti-kickback statute. The California Business and Professions Code § 650 prohibits a licensee from offering or accepting any payment as compensation or to induce the referral of patients. However, it does allow for the payment of services (but not payment for referrals) based on gross revenue or a similar arrangement if it is consistent with the fair market value of those services. But even in states like California that explicitly carve out advertising from the anti-kickback rules, not all advertising relationships are permitted. Paying for advertising based on results or consumer response always will appear to be a paid referral and is certainly a risky arrangement. Before implementing any marketing strategy, it is always a good idea to review your state’s fee-splitting and anti-kickback laws, as well as your licensing board’s guidance on professional conduct.

If you would like to learn more about marketing that won’t land you in the same hot water as the physicians at Forest Park Medical Center, consider attending one of our Boot Camps this year. We also have a number of webinars that cover various issues and aspects of marketing that you may find helpful.

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

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In Just 15 Minutes, You Can Help the Medical Aesthetics Industry

Posted By Administration, Friday, March 15, 2019

taking a surveyBy: Alex R. Thiersch, JD, CEO of the American Med Spa Association (AmSpa)

From now until March 28, AmSpa is conducting the 2019 Medical Spa State of the Industry survey, and if you’re the owner or managing business director of a medial aesthetics practice, your participation is vital to helping us gain a better understanding of what’s going on throughout the industry. The survey takes approximately 15 minutes to complete, and once you finish, you’ll be entered in a drawing for valuable prizes. Click here to take the survey now.

This survey is extremely important to AmSpa and its members, and the information you provide can help us determine emerging trends and topics of concern that affect everyone in the industry. The more data we can gather, the better—it allows us to determine what is happening with a greater degree of certainty, and it helps bring to light perspectives that might not have been considered before. In other words, your opinion is incredibly valuable to us and to everyone else in the industry.

If you complete the survey, you’ll receive a free executive summary of the results when the survey is completed, as well as a promo code for $100 off a ticket to any 2019 AmSpa Medical Spa & Aesthetic Boot Camp, so if you’re a qualified respondent and you’re considering attending any of these events, it’s certainly worth your while to participate. Additionally, you will be entered in a drawing to win one of two $500 Visa gift cards.

Participation in the survey is limited to owners and managing business directors of medical aesthetics practices, and we ask that only one person per practice respond; however, if you don’t personally have access to the information you need to answer a particular question, we encourage you to solicit that information from others in your organization.

The more information you have, the better decisions you’ll make. By participating in AmSpa’s 2019 Medical Spa State of the Industry survey, you’ll help yourself and others to become better informed about the trends and topics that are currently driving the medical aesthetics industry, which can, in turn, help the industry can become even healthier as a whole.

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

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Medical Spas Face the Challenges of Private Equity-Backed Health Care

Posted By Administration, Thursday, March 14, 2019

By James M. Stanford, JD, Partner, ByrdAdatto

Over the last several years, private equity activity progressively made its entrance into the market of dental support and management service organizations. Now, the trend has made its way into the practice of dermatology, and the field is divided over the rise of private equity—not only in dermatology, but in other areas of medicine as well, including plastic surgery, aesthetics, and the medical spa space. The competing schools of thought on private equity in medicine are highlighted in an article recently published by The New York Times entitled, “Why Private Equity is Furious Over a Paper in a Dermatology Journal.”

The article details the backlash a medical research paper received after its data supported a conclusion that private equity firms tend to acquire practices “that perform an unusually high number of well-reimbursed procedures and bill high amounts to Medicare.” The article also highlights the criticisms over the paper’s factual accuracy, its sudden removal from the medical journal’s website, and the questions raised about private equity firms’ growing presence and influence in the practice of dermatology at the expense of patient care.

While the corporatization of healthcare is not a new debate, the research paper’s conclusion is the most recent example to illustrate the challenges that arise in maximizing profits without diminishing patient care. This is because the ability of a practice to effectively align its healthcare and business issues can be the differentiating factor between the success and failure of the practice. On one side of the equation, you have the traditional healthcare practice structure where business innovation and creativity is extremely limited, and the primary focuses are patient care, efficiency in billing and operations, and payer reimbursements. On the other side, you have the retail business structure where there is a limited understanding with healthcare laws and regulations and the correlated risks of excessive monetary penalties and lawsuits, but its experts are skilled in innovative marketing and branding.

Like it or not, private equity has made its way into the dermatology market and other health care spaces. If you have a management service organization and need help navigating the challenges of raising private funds, or if you are currently operating with private equity backers and need guidance, consider attending one of AmSpa's upcoming Boot Camps, where industry leaders can answer your questions and show you how to move your business forward.

James M. Stanford is an attorney and partner at the ByrdAdatto law firm. From transitions, mergers, and acquisitions to structuring complex ownership arrangements, James enjoys the personal reward that comes from bringing parties together and making deals happen. James practices primarily in the areas of health care and corporate law with a focus on intellectual property. A proud father, Jim served in the U.S. Army and is fluent in Russian. In his spare time, he enjoys hunting, fishing, and spending time outdoors.

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

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Fibroblast Plasma Therapy, Who Can Do It?

Posted By Administration, Tuesday, March 5, 2019

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

Fibroblast Plasma Therapy is a new skin tightening procedure that is generating a lot of buzz in the medical aesthetics industry. It delivers tiny arcs of plasma created by an electrical discharge via a “plasma pen” to the skin, singeing the surface and tightening the underlying tissue. Unlike a typical light or other energy based skin tightening treatment where a large area of skin is treated with each firing, a Fibroblast Plasma Therapy treatment only effects a tiny pin-point of tissue with each firing. The whole treatment is then performed by repeatedly applying the pen in grid pattern over the treatment area. It appears that, in general, there are few risks of complications with this treatment. However, there is risk of burning through part of the skin if the plasma is applied for too long or too deep.
 
As is typically the case when such a product emerges, we at AmSpa are getting a number of questions about who can actually perform Fibroblast Plasma Therapy procedures. The treatment appears to be very straightforward—a provider applies the device in a grid pattern to the area of the skin to the skin. Its simplicity raises an obvious question: can an esthetician or licensed vocational nurse (LVN) perform this procedure?
 
It’s great that we get these questions because it shows that medical spa owners and operators care about remaining compliant, but because innovation moves faster than the regulation, it’s sometimes difficult to determine what the answers are when new treatment emerges. However, we can use what we know about similar treatments and technologies to determine the most prudent course of action until government agencies make their rulings.
 
Simply put, the Fibroblast Plasma Therapy is essentially an energy device similar to other IPL, electricity, and radio frequency devices. A lot of the issues we’ve addressed in recent years regarding other energy skin tightening devices are likely also going to apply to it. Every state that has looked into these other energy devices that tighten the skin has found it to be a medical treatment, so a good-faith exam must be performed before the procedure, and if a doctor is not administering the treatment him- or herself, it must be properly delegated. Unfortunately, for practices that would like to use unlicensed practitioners to perform Fibroblast Plasma Therapy procedures, this takes them out of the scopes of practice for estheticians and most LVNs.
 
The only conjecture we can make is that Fibroblast Plasma Therapy will likely be regulated in much the same way as other energy based skin tightening, both in terms of medical board rulings and FDA approval.
 
Unfortunately, since it is so new, we don’t have all the answers yet, however we will stay on top of this as more states weigh in on the procedure and news develops. Look to AmSpa for more about Fibroblast Plasma Therapy treatments. Thus far, it has been safe and well received, but the industry needs to have a firmer grasp on the regulatory issues surrounding it.

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 be the next med spa success story.

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

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Texas Nursing Board Reiterates That Nurses May Only Use Non-Ablative Lasers

Posted By Administration, Monday, March 4, 2019

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

Unlike many other professional licensing boards, the Texas Nursing Board provides a volume of guidance and answers on their website for nurses wanting to practice in a medical spa. In general, this guidance recognizes that that registered nurses (RNs) and licensed vocational nurses (LVNs) have a scope of practice that is defined partially by their educational background, level of competence, and knowledge. This flexibility seems to carry over to the Board’s position statement 15.9 on Laser Therapy.
 
Position statement 15.9 (available here), begins by acknowledging that the “use of laser therapy and the technology of laser use have changed rapidly” over the years. It goes further on to state that nurses play many important roles in laser therapy and that it may be within their scope of practice to administer such treatments. The statement lays out the basic requirements that the nurse needs to have the education, experience, and knowledge to perform the treatment and must perform it subject to a valid medical order and under appropriate supervision. All through this section references are made to lasers, laser therapy, or laser energy. However, the seeming broadness of this position is quickly undermined by the single use of one term: non-ablative. Non-ablative is used only once in the statement and by its inclusion it excludes many laser skin resurfacing treatments from RNs and LVN’s potential scope of practice.
 
Recently, Sam Pondrom an attorney with the law firm ByrdAdatto, spoke with the Board of Nursing regarding this language in 15.9 he says “The Nursing Board was very clear: that there are no plans to remove the (non-ablative) language from the statement and that they don’t feel a (RN or LVN)’s educational background prepares them to accept these assignments.”
 
This limitation to non-ablative lasers in the position statement appears to be in response to an older practice guideline from the Texas Medical Board (TMB). This TMB guideline was adopted in 2003 but has since been withdrawn and at the time it prohibited physicians from delegating any ablative laser procedures to others. However, the Nursing Board’s statement retains the restriction and in 2013 only removed reference to the withdrawn TMB rules (see here for a discussion of the 2013 amendments). Currently, no other rule or law prohibits a physician from delegating an ablative laser procedure to a nurse.  However, position statement 15.9 makes it clear that it is not within the scope of practice for an RN or LVN to accept such a delegation. It remains to be seen when The Board of Nursing will again recognize that “the use of laser therapy and the technology of laser use have changed rapidly” as they had previously stated in the opening line of 15.9. 

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 be the next med spa success story.

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

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Medical Spa Bad Press: Coming to Terms with Compliance

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.

View the full segment.

See AmSpa’s full statement on the segment here

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.

AmSpa members can check their state’s medical aesthetic legal summary to find the laws governing their practice.

The Truth

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.

Creating Compliance

To start on the road to compliance, medical spa owners and operators should take the following steps.

  1. 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.
  2. 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.
  3. 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.

Attend an AmSpa Medical Spa & Aesthetic Boot Camp to learn how to build and run your medical spa to be profitable and compliant with all of the laws in your state.

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

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