Print Page | Contact Us | Sign In | Register
AmSpa Now
Blog Home All Blogs

Can Aestheticians Do Microneedling in a Med Spa?

Posted By Administration, Thursday, July 12, 2018

By: Alex R. Thiersch, JD, Founder/Director of the American Med Spa Association (AmSpa)

Microneedling is a trending procedure in med spas, but many owners and practitioners are not clear if aestheticians can legally perform the treatment. The answer to that question, like many regulatory issues in the medical spa industry, can vary depending on what state you practice in. For the much of the United States, however, the answer is likely no.

Also known as collagen induction therapy, microneedling is a minimally invasive treatment 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.  

Sign up for AmSpa’s webinar on the Trends, Science and Economics of Microneedling for more information on the procedure.

The Practice of Medicine

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

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

“This isn’t new – aestheticians cannot penetrate the skin,” said Underwood. “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, cautioning people against the Dermatude device until more information came out from the federal government related to its use.

 

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

Physician Supervision and Delegation 

In some states, however, there are ways in which individuals holding aesthetician licenses can perform certain medical procedures. As noted in this video update, for example, the state differentiates 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 examined by a physician or a mid-level practitioner (like a nurse practitioner or a physician assistant) then an individual working in a medical spa may perform microneedling. It is very important to note for aestheticians that if you are going to do this procedure under this caveat you cannot represent yourself as an aesthetician while doing so. This means flipping over your aesthetician name tag and taking down any certification you might have hanging on the wall.

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

Supervision Requirements

This sounds onerous, and it is certainly involves more of a pain point than a facial or another aesthetician service, but depending on your state this does not have to be a deal-breaker for offering microneedling services in your medical spa. The supervising physician doesn’t have to be in the room watching the aesthetician perform the procedure, and in many states does not have to see the patient before every treatment – just the first one. 

Know the Law

Regulations can vary greatly depending on where your business operates so it’s very important to know the laws specific to your business. When in doubt consult an attorney in your state 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:  Business and Financials  Med Spa LawAmSpa's Med Spa & Aesthetic Boot Camps 

Share |
PermalinkComments (0)
 

The Top 5 Med Spa Law Tips to Know Before You Open

Posted By Administration, Tuesday, July 10, 2018
Updated: Monday, July 9, 2018

By: Alex R. Thiersch, JD, Founder/Director of the American Med Spa Association (AmSpa)

Med spa law can often be a maze of state and federal regulations, crossed with a litany of regulatory board opinions and years of case law that can differ widely from state to state. However, although the business is complicated, understanding the following five pieces of advice can help you tremendously.

Medical spas are medical facilities.

You may be forgiven for thinking that medical aesthetic facilities operate under the same set of regulations that govern the non-medical facilities with which they are often associated like day spas and retail centers. However, medical spas are medical facilities and must be operated as such. This is the most important piece of advice a health care attorney can give medical spa professionals who are operating medical spas.

Understand your corporate structure.

Because medical spas are medical facilities, their corporate structures are more important than you might think. The regulations governing medical practices in most states recognize the “corporate practice of medicine,” which states that medical practices must be owned by physicians or physician-owned corporations. This can impact several aspects of medical spa ownership, including the next piece of advice.

See AmSpa’s webinar on the MSO structure for information on owning a med spa if you are not a doctor, and if you live in a state that recognizes the corporate practice of medicine.

Do not reward employees with commissions.

In states that observe the corporate practice of medicine, payment for medical services must be made in full to the owner of the practice—a physician or physician-owned corporation. If a practice rewards employees for bringing in clients with a percentage of their payments, it would constitute fee-splitting, which is often illegal in these states. You can, however, reward employees with a structured bonus system, such as the compensation plan available in the AmSpa store.

A medical professional should always be onsite.

It’s fairly uncommon that the physician who owns or operates a medical spa is actually in the building. However, proper delegation and supervision must be practiced at all times. A physician is typically allowed to delegate day-to-day activities to other medical professionals, and having a mid-level practitioner—a nurse practitioner or physician assistant—onsite to supervise the non-licensed employees who typically administer treatments helps to keep the practice safe from lawsuits that may arise from accusations of improper care.

For more information on medical malpractice lawsuits, listen to Medical Spa Insider Episode 3, in which AmSpa Founder/Director Alex Thiersch interviews patient advocate law firm Sukhman|Yagoda on tips to avoid being sued by patients.

Consult a health care attorney as soon as possible.

Even though it might seem cost-prohibitive when you’re opening a medical spa, it is in your best interest to engage a health care attorney as soon as possible. An experienced lawyer can advise you about the numerous issues that can hamstring an aesthetics practice, including helping you create contracts that conform to your state’s laws. For example, if you want to craft an enforceable non-solicitation clause for an employee contract, a health care lawyer can help you with that. An attorney can also help you understand how best to utilize marketing tools, such as social media and how to make sure that you respect patient privacy at all times. It’s often said that it costs twice as much for an attorney to fix a problem than it would to prevent that problem from occurring in the first place, so make sure to consult a health care lawyer as soon as you get a chance, if you haven’t already.

(AmSpa members: Be sure to take advantage of your complimentary annual compliance consultation with the business, aesthetic, and healthcare law firm of ByrdAdatto. Additionally, AmSpa members should be sure to access their medical aesthetic state legal summary to find answers to their med spa legal questions.)

If you run a medical spa practice, there’s a high probability that you’re going to get sued—there’s really no way around it. However, if you heed the advice presented here, you will help to protect yourself from potentially disastrous consequences.

For more information on medical spa legal necessities, and to gain the tools to run your practice efficiently and profitably, attend an AmSpa Medical Spa & Aesthetic Boot Camp, and be the next med spa success story.

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

Share |
PermalinkComments (0)
 

Medical Aesthetician and Certified Laser Tech: The Risks of Misleading Medical Spa Titles

Posted By Administration, Thursday, July 5, 2018

By: Alex R. Thiersch, JD, Founder/Director of the American Med Spa Association (AmSpa)

“Medical aesthetician” and “certified laser technician” are common titles to see in medical spas, but these are among job titles that come with certain risks in medical practices. They are examples of a handful of titles for professionals in the medical aesthetic industry have become prominent over the years even though they are inherently misleading. Despite the fact that they are used constantly in and around the industry, they should be phased out since legal compliance is more important than ever due to increased appetite for enforcement by regulators.

Medical Aesthetician


The most prominent example of this problem involves so-called “medical aestheticians.” People who refer to themselves as medical aestheticians typically have some sort of training in a medical spa setting and want to separate themselves from other aestheticians who do not. They’ve usually completed a course or two in microneedling or laser use, and they wish to distinguish themselves by calling themselves medical aestheticians. This is very common—if you search for “medical spas” on the Internet, you will undoubtedly run across the term.

However, it is very dangerous for an aesthetician to use this title, because he or she risks disciplinary action by his or her board. Medical spas and other, more traditional medical practices are subject to very strict advertising rules and regulations, and practices need to zealously guard against any kind of misrepresentation or exaggeration relative to their services. Everything has to be very clear and on the up-and-up. The problem with the term “medical aesthetician” is that the person or practice using it can be seen to be suggesting that the person in question can perform medical treatments. Of course, according to their practice acts, aestheticians are explicitly prohibited from performing any sort of medical treatments, and even suggesting that they can is a significant misrepresentation of their abilities.

Several state medical and cosmetology boards—including California, Colorado, and Illinois—have explicitly stated that people cannot use the term “medical aesthetician,” and that if they do, they are subject to discipline. I see so many people use this term that it makes me think they simply don’t know any better and are getting bad advice from schools or co-workers. 

A few states offer “master aesthetician” licenses, and these allow aestheticians to perform more complex treatments than an aesthetician normally would. However, even in this case, using the term “medical aesthetician” is a bad idea.

Certified Laser Technician


It is not uncommon for people to take courses at laser training centers and, upon graduation, the school will tell them that they are “certified laser technicians.” The graduates will typically take that certificate back to their medical spa, hang it on their wall, and claim that they are certified to perform laser services in their states. However, this is not the case—they are certified by the private company that provided the training, not the state—and this is a significant distinction.

There are very few states that recognize any kind of certification for any type of laser treatment, and there’s a major difference between a state-sanctioned certification and a private company’s certification. People can run into real danger if they claim that they are certified by virtue of the fact that they have taken a course from a private company. Only a state can truly certify a laser technician. And again, if a person or their medical spa advertises that he or she is certified when that is not the case, they could be seen to be misrepresenting themselves.

It is crucial in medical advertising that professionals are fastidiously honest about where they got their certification and what it means, in every case. If you suspect that you or your practice is in violation of these rules, consult your health care attorney to find out what you can do to correct course as quickly as possible. (Reminder: AmSpa members receive a complimentary compliance consultation once per year with AmSpa’s partner law firm, ByrdAdatto.)

For more information on medical spa legal best-practices attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps.

Tags:  Business and Financials  Med Spa Employee Types  Med Spa Law 

Share |
PermalinkComments (1)
 

Pros and Cons of Groupon for Med Spas

Posted By Administration, Wednesday, June 27, 2018

By: Alex R. Thiersch, JD, Founder/Director of the American Med Spa Association (AmSpa)

It’s not uncommon for med spas and other aesthetic practices to use Groupon or other online deal marketplaces. Typically, medical spas use these websites to present special discounts to users in their community, but there are several issues to consider before using these services to try and attract new patients.

On the surface, this seems like a low-risk way for a medical spa to present its offerings to a new group of customers, and medical spa deals represent a significant source of income for the deal websites. However, medical spa owners and operators need to know about a few issues related to discount marketplaces before they choose to use these sites to promote their businesses.

Patient Retention

Your average Groupon customer is searching for a cheaper option—that’s the whole point. Patients searching for discounts are probably not going to be as loyal as patients who have taken the time to search for a quality experience. Also, the greater the discount, the less likely it is that the patient will return. Generally speaking, very few people who are directed to medical spas via sites such as Groupon become regulars—most are simply in it for the deals.

This is problematic because most successful medical spas rely on patient retention. In fact, in an average med spa up to 70% of patients are repeat clients according to AmSpa’s 2017 Medical Spa State of the Industry Report. Not only is it over 5 times more expensive to attract new clients than it is to retain current ones, but existing customers tend to spend up to 67% more than new ones, according to an Inc. Magazine study.

Medical spas that partner with Groupon and other deal sites tend to get into what we used to call the “Groupon cycle,” where medical aesthetics practices offer a deal on Groupon not because they actually want to do it, but rather because they just want to get some money in the door. And yes, it is a good way to get some fast cash, but it doesn’t create repeat business, so after a month or two these practices have to do it again just to get some money in the door.

While the idea of having this cash on-hand is appealing, constantly cutting into your margin for clients that are unlikely to return to pay full price is not a sustainable model for success. If you’re selling a lot of treatments on sites such as Groupon, you could run into a cash-flow problem—if your practice is doing most of its business giving extremely large discounts to patients who probably won’t return, you could end up losing a lot of money.

Eventually, medical spas like this operate more or less exclusively on deal sites, and they tend to get bad reputations because their customers, who have expectations that rarely are based in reality, are always complaining about them.

Problematic Patients

Over the past three or four years, five lawsuits involving laser burns have come across my desk, and in every one of those instances the patient had come from Groupon. The correlation is that patients who are searching for discounts are going to be more likely to cause problems than patients who find your practice via more traditional means.

Additionally, a successful offering on a deal site can lead to an influx of clients, which can cause a med spa to become extremely busy and tax its resources. If a facility does not have a staff of the requisite size and with the proper skills to deal with such a situation, the quality of patient care can suffer—not only for those who purchased the deal, but also for the spa’s regulars.

Fee-splitting

In most states, laws require medical facilities—including medical spas—to be owned by physicians or physician-owned corporations. And in most of these states, all payments for medical services must be made in full to the owner of the facility. If a percentage of such a payment goes to someone else, the facility has engaged in an illegal practice known as fee-splitting. The use of deal sites to sell medical treatments is, from a legal standpoint, a textbook example of fee-splitting, since the site gets a percentage of the proceeds generated by the sale of the voucher. However some states, like Illinois, have carved out fee-splitting exceptions for deal sites. Check your state’s medical aesthetic legal summary to see how your state approaches fee-splitting.

In the many years that medical spas have been working with sites such as Groupon, there has yet to be any prosecutions for this, and it seems somewhat unlikely that a regulatory agency would start now. It is worth keeping in mind, though, especially if a patient experiences a bad outcome.

If you want to create sustainable success, pass on Groupon and other deal sites and work on creating lasting relationships with reliable clients. Short-term cash isn’t worth the headaches a Groupon offering can bring. For more information on how to build and run a successful, profitable, and legally compliant medical spa attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps.

Tags:  Business and Financials 

Share |
PermalinkComments (0)
 

Inc.com Article Outlines Business Concepts Vital to Medical Spa Success

Posted By Administration, Tuesday, November 14, 2017

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

In this space, I often discuss the legal peculiarities of running medical aesthetic practices from a viewpoint that generally deals with medical issues. However, while it is critical that medical spa owners and operators understand what’s expected from them in terms of rules and regulations, they must be equally adept at managing the business side of the aesthetics equation.

To that end, I highly recommend reading “6 Business and Financial Terms Every New Entrepreneur Needs to Know” by Jeff Haden on Inc.com. In general, Inc.com is an extremely useful resource for people who wish to develop a better understanding of the ways business works. It has given me some really valuable, practical tidbits over the years, and I would highly encourage anyone who is serious about developing their business savvy to follow Inc.’s Facebook page or regularly visit its website.

In this article, Haden gives basic but very informative explanations of these six metrics:

  • Customer acquisition cost,
  • Customer lifetime value,
  • Customer retention rate,
  • Repeat purchase rate,
  • Redemption rate, and
  • Revenue percentages.

This piece is extremely applicable to medical spas. Practice owners who take the time to learn the specific metrics that are referenced in this article tend to be the ones who are the most successful—the ones whose practices bring in millions of dollars in revenue every year.

You can spot a dedicated business owner from the types of metrics that they look at, and the ones mentioned in Haden’s piece are the ones that AmSpa’s industry experts discuss in our Medical Spa & Aesthetic Boot Camps. They are all vital when it comes to managing your medical spa, because a medical spa is much more akin to a retail store than it is to a doctor’s office, even though you have to follow the same rules and regulations concerning the administration of medical procedures that a doctor’s office would.

If a medical spa owner truly wants to be successful, he or she needs to realistically understand the dual nature of the business. If you are a nurse or a doctor, you need expand your horizons to better understand the ins and outs of the retail business. Sometimes, that means taking a 30,000-foot view of what your data shows you. Any initiative that you’re taking must be measured, tracked, and eventually evaluated.

The decisions you make should be based on the data you’ve compiled. The metrics mentioned in “6 Business and Financial Terms Every New Entrepreneur Needs to Know” are vital to helping you develop a more thorough understanding of the way your business functions. I think it explains these concepts very well.

At the end of the day, a medical aesthetic practice must make money. This might seem to go without saying, but when you’re in the process of starting up a medical spa, several other aspects of the business might seem to take precedent, especially if you’re coming to the medical aesthetic business from a medical background. And yes, it’s vitally important to set up a compliant practice and make sure that you’re following all applicable state and local regulations to the letter, but if you’re not doing everything you can to understand and utilize business concepts such as these, you’re not giving your medical spa a fair chance to succeed.

Tags:  Business and Financials 

Share |
PermalinkComments (0)
 

Shady at Best, Dangerous to Patients at Worst | Parallel Importation

Posted By Administration, Friday, January 20, 2017
Updated: Wednesday, May 23, 2018
As you no doubt are well aware, botulinum toxin treatments—primarily Botox, but also including competitors such as Dysport and Xeomin—are among the most popular procedures in the medical aesthetic industry. According to the American Society for Aesthetic Plastic Surgery (ASAPS), more than 4.25 million of these treatments were administered in the United States in 2015, for a total expenditure of more than $1.35 billion—the most of any cosmetic procedure, surgical or otherwise. At an average of $317 per treatment, botulinum toxin is affordable for patients, yet still quite profitable for practices. But some want more, and they are beginning to put themselves in danger in the pursuit of larger profits.


One of the ways in which practices are attempting to do this is by buying cheap, usually counterfeit botulinum toxin from other countries, most prominently China. These drugs are not particularly difficult to procure on the Internet if you know where to look and, to some medical aesthetic practices, this represents a way to avoid paying the name-brand premium that legitimate botulinum toxin carries, such as Botox.
While this is shady at best, and dangerous to patients at worst, historically it tended to be fairly easy to get away with. Recently, however, the U.S. Food and Drug Administration (FDA) has stepped up the enforcement of its statutes (fake botulinum toxin is not FDA approved, of course), seizing these drugs at the border and handing down criminal charges against those in the United States who are complicit in their importation, such as the practices that order it.


This enforcement effort has proven to be extremely controversial. “It’s caused quite a bit of angst,” said Michael Byrd, partner for ByrdAdatto, a national business and healthcare law firm based in Dallas. “There’s a lot of unhappiness, even within the governmental agency [FDA]—they refer to themselves in a derogatory manner as the ‘Botox police’ or the ‘Allergan police.’”
FDA agents may feel like their strings are being pulled by a corporation, but this is also unquestionably a matter of maintaining the health of the botulinum toxin-using public.


“Those who are against it say that it’s really just action on behalf of Allergan for Allergan to keep their prices [high]. Those who are for it, as you might suspect, point to patient welfare.”
-Michael Byrd, partner for ByrdAdatto 


Regardless, enforcement has increased, and the charges you can incur as a result of being caught with counterfeit botulinum toxin are very serious. If your owner or operator is found guilty of them, they could theoretically serve jail time in addition to facing heavy fines and the suspension of their medical licenses.


Medical aesthetic practices have also attempted to purchase less expensive botulinum toxin treatments by engaging in a practice called “parallel importation,” whereby a licensed foreign entity purchases legitimate US-produced drugs at a lower rate than US-based distributors (due to local price controls) and then resell them to US-based practices for far less than it would typically cost for the practices to procure them from domestic sources. The US Supreme Court broadly upheld the legality of this practice in the case of Kirtsaeng vs. John Wiley & Sons, Inc. (2013), although that particular case related to textbooks, not prescription drugs. As such, there are still some grey areas involving FDA compliance that make this practice risky, despite the fact that every step of the process seems to respect the laws of both the country in which the outlet is located and the United States.


“Enforcement typically stems from an employee, patient, or American industry representative reporting a foreign label on the product. Because the labeling is different on legitimate US products purchased by a foreign entity, practices engaging in parallel importation are also being reported,” explains Byrd. “When I counsel my medical spa or cosmetic practice clients, [I tell them] you have to recognize the risk that comes with any effort to utilize parallel importation. Even if a client is ultimately not found guilty of wrongdoing, an enormous business cost comes with losing inventory in a raid, legal costs to defend the action, and the business disruption that comes with an enforcement action. There is, of course, also risk regarding the legality of the use of parallel importation for prescription drugs. And so, my counsel would be that if you do anything other than buy an FDA-approved and US-distributed product, you have to recognize both of these risks.”


For now, it is probably best not to engage in parallel importation, but it is entirely possible that in the near future, it will be a viable way to purchase FDA-approved products.


 
AmSpa provides a variety of legal and regulatory resources for medical aesthetic practices and medical spas to help you stay legal and compliant. Learn more about our member benefits here


This article originally appeared in the December issue of Modern Aesthetics.

Tags:  Business and Financials  Med Spa Law  Med Spa Ownership 

Share |
PermalinkComments (0)
 
Contact Us

224 N Desplaines, Ste. 600S
 Chicago, IL 60661

Phone: 312-981-0993

Fax: 888-827-8860

Mission

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

Follow Us: