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

Are You Lost in the Scope of Practice Decision Tree?

Posted By Administration, Wednesday, July 17, 2019

nurse consultation

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

In many states, it can be a challenge to determine what specific interventions and tasks are within the scope of advanced practice registered nurses, registered nurses and licensed practical nurses. Often, the statutory scope of practice on which the nursing board relies is written in vague and general terms, such as “promoting health,” “providing care and support” and “acquired through educational preparation in nursing.” To provide additional guidance, many nursing boards have adopted the Decision-Making Framework promoted by the National Council of State Boards of Nursing (available here). However, when you reach out to these boards seeking additional guidance, they will ask you to work through the framework to answer your own question.

While the decision tree can be helpful in reasoning through a nurse’s scope of practice, it often raises more questions than it answers. This is especially true for nurses who practice in medical spas and the aesthetic industry, since the procedures they are asked to administer are often very different from what is considered the “traditional” practice of nursing. For example, in the second question the framework asks if the task is “consistent with evidence-based nursing and health care literature,” but it does not provide information about how much evidence is needed or which publications are acceptable sources. Similarly, the fourth question asks about “necessary education to safely perform the activity,” but again, how do you know if you have enough education about the procedure? Is a weekend course enough, or do you need something that lasts a week or semester?

Fortunately, the Oregon State Board of Nursing recently provided a very helpful interpretive statement on cosmetic procedures. Interpretive statements in general aren’t unusual, but what makes this one unique is that the board walks through and discusses the issues and reasoning for each question in the decision framework as it pertains to procedures a nurse could perform in a medical spa. We won’t review the whole statement here, but we want to point out some of the more interesting points in the board’s analysis.

  • Is the role, intervention or activity prohibited by the Nurse Practice Act (NPA) and Rules/Regulations or any other applicable laws, rules/regulations or accreditation standards? In addressing the first question, the board makes it clear that nurses don’t operate on their own and can only accept procedures when they are ordered by licensed independent prescribers. The board also looks not only at the NPA, but also at the medical practice act and health authority laws, as well as the interpretive guidance from those organizations in answering this step.
  • Is performing the role, intervention or activity consistent with professional nursing standards, evidence-based nursing and health care literature? Here, the board gives some qualification to what sort of literature is acceptable. They point to guidelines from specialty nursing associations as well as peer-reviewed publications. Therefore, information in newsletters and trade publications likely is not going to be sufficient.
  • Are there practice setting policies and procedures in place to support performing the role, intervention or activity? For this question, Oregon discusses additional aspects of what constitute appropriate policies and procedures. Its main points are that the nurse has a professional responsibility to practice according to the board’s standards, and the facility policies and protocols cannot force them to practice outside of those standards. This includes refusing to accept a delegated procedure that the nurse deems unsafe.
  • Has the nurse completed the necessary education to safely perform the role, intervention or activity? The board agrees that there is rarely an identified educational standard for medical spa procedures. However, the burden falls on the nurse to show that the education he or she has received is sufficient. For non-ablative procedures, the Oregon board sets a minimum of 40 hours of laser education from the American National Standards Laser Safety Education Program.
  • Is there documented evidence of the nurse’s current competence (knowledge, skills, abilities and judgment) to safely perform the role, intervention or activity? The board stresses the need for nurses to maintain records of all their education and other methods they used to acquire competency in a procedure. While it may seem like a tedious requirement, these records will be critical information if the nurse ever needs to respond to a complaint.
  • Would a reasonable and prudent nurse perform the role, intervention or activity in this setting? This is the most uncertain question. After all, what constitutes a reasonable and prudent nurse? Here, the board interprets this question to mean a prudent nurse would be one who can answer “yes” to questions 1 – 5.
  • Is the nurse prepared to accept accountability for the role, intervention or activity for the related outcome? The final step in this framework is simply reminding the nurse that he or she has accountability for performing the procedure and its outcome. The nurse’s willingness to accept the responsibility is not a scope of practice issue, but it does serve as a final check in determining answers to scope of practice questions. If the nurse chooses to decline, it probably means that one of the previous questions was not answered clearly in the affirmative.

Now, obviously, this analysis is specific to Oregon and won’t apply completely to your state. It does, however, provide insight into how your own state’s board might navigate this decision framework. Finding answers about the legal aspects of the medical aesthetics industry and educational issues can be daunting. AmSpa members can check their states’ legal summaries to determine if a procedure falls within their statutory scope of practice. However, nurses still will need to examine their own educational backgrounds and the practice setting to determine if the procedure is within their personal scope of practice.

Tags:  Compliance is Cool  Med Spa Trends 

Share |
PermalinkComments (0)
 

Botox Parties: What You Need to Know

Posted By Administration, Wednesday, May 8, 2019

botox

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

One thing I love about the med spa industry is that med spa owners and providers continue to innovate. The ideas that come from AmSpa members on marketing, branding and business are always impressive. This is one reason why it is difficult to keep track of what’s legal in the medical aesthetic industry—many of the ideas we are asked about are brand new. They’ve never been tested before, and therefore it’s difficult, to determine where the legal constraints are.

Botox parties are examples of this. These events are hosted by a med spa or a provider—either at the med spa or another location—and at them, people get together to socialize, learn about treatments and try new treatments. Often, the med spa provides discounts on product to get new patients in the door. These are highly social events, often featuring alcohol, that mix pleasure with aesthetics, which makes the idea of getting injected with a needle a bit more palatable.

I’m often asked whether these events are legal, particularly when they are held outside of the med spa—at someone’s house or a salon, for example. What’s more, are they worth it?

The answer to both of these questions is yes—they are absolutely legal in most states (Nevada recently passed a law restricting the injection of Botox and fillers to a doctor’s office, essentially banning offsite Botox parties), and they are absolutely worth it. But like most things in this industry, these answers are contingent upon you adhering strictly to the law. No amount of money is worth losing your license, and yes, nurses have lost their licenses because of improperly hosted Botox parties. AmSpa members can check their medical aesthetic legal summaries to find laws pertaining to Botox parties in their particular state.

Primarily, you need to remember that when you provide any offsite medical treatment, all the same rules apply. New patients must be examined by a doctor, nurse practitioner (NP) or physician assistant (PA) prior to being treated. Proper records must be kept. Consent forms must be signed. Before and after photos should be taken. Everything you are legally required to do at your med spa should be done at a Botox party.

Additionally, check with your insurance carrier before the party to ensure that you have coverage for offsite treatments, and double-check local ordinances regarding serving alcohol—you may need to obtain a permit for this.

Exam

A patient being treated by an RN without first seeing the doctor (or NP or PA) is the biggest legal risk at Botox parties, or any other social event involving med spa treatments. All patients must first be examined so that a plan can be set. This can only be performed by a doctor, or by an NP or PA operating under proper authority. Even if the patient consents to being treated by the RN without first seeing a doctor, the RN is not allowed to inject the patient without the exam.

At Botox parties, this can be difficult because new patients are socializing, alcohol is sometimes being consumed, and everyone is more relaxed. However, this is a step that must be followed, because an RN cannot practice medicine, so he or she cannot legally perform the initial assessment, establish the physician/patient relationship and set a treatment plan.

Consent

Obtaining patient consents—including privacy waivers, since treatments are usually performed out in the open—is also important. Providers also should be mindful of patients consuming alcohol. While obtaining consent from people who have been drinking is not strictly illegal, alcohol makes people less inhibited and often clouds judgment, which is not good when it comes to patient consent. All prospective patients should offer consent before they begin drinking, and you should try to keep the drinking to a minimum. This is not always easy, but trust me—if there’s an adverse outcome, you’ll wish that alcohol was not involved.

Privacy

You should also be mindful of photos and social media. These events are ideal for marketing purposes—people are having fun, everyone is happy, and you remove many of the clinical aspects of aesthetic medicine. However, you need to be careful when photos or videos are posted—every patient is entitled to privacy, and if any of them fail to sign a privacy release and an authorization to use their photos, you risk breaching their privacy.

Conclusion

So since these events are broadly legal, we need to ask—are these events are worth it? The answer is emphatically yes, provided you strictly adhere to legal guidelines. Botox parties and social events are great ways to introduce new clients to your practice, pre-book treatments and bring in some cash.

Offer discounts on treatments and pre-bookings—both for injectables and laser packages—is standard operating procedure, provided they are purchased that night. Patients are encouraged to bring friends and colleagues to meet the providers and learn more about aesthetics. It is not uncommon for a practice to earn six figures in treatments and bookings in just one day. Even that kind of money isn’t worth losing your license, however, so be vigilant with your compliance efforts.

I urge you to move cautiously when planning and hosting one of these events. Do your homework and ensure you are completely compliant. Go easy on the alcohol. Make sure you’ve got proper insurance. If you have any questions whatsoever, consult with a qualified lawyer ahead of time so that all the proper documentation is in place, the required personnel are available, and all rules are observed.

For more information on running your med spa legally and profitably, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps, and you could become the next med spa success story.

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

Share |
PermalinkComments (0)
 

Unsafe Practices by New Mexico Aesthetician Lead to Second HIV Infection

Posted By Administration, Wednesday, May 1, 2019

needle

By Alex R. Thiersch, JD, CEO of the American Med Spa Association (AmSpa), and Patrick O’Brien, JD, legal coordinator for the American Med Spa Association

According to the New Mexico Department of Health (NMDOH), vampire facials administered at VIP Spa in Albuquerque have caused the transmission of the HIV virus to at least two customers. The spa, which was operated by an aesthetician, was shut down in September 2018 after an inspection found that needles were being improperly handled and disposed of, creating the possibility of the transmission of bloodborne diseases. NMDOH is offering free blood testing services and counseling to the spa’s former clients.

Vampire facials involve the extraction of the patient’s blood, the centrifugal separation of plasma from the blood, and then the reinjection of the plasma into the face with microneedling equipment in order to stimulate collagen production. The procedure has gained popularity in recent years thanks to the influence of Kim Kardashian, who posted images of herself experiencing the treatment to her Instagram in 2013, but later stated that she regretted undergoing it and that it was extremely painful.

Obviously, this sort of procedure presents numerous avenues through which contamination can occur. In New Mexico, drawing blood and performing microneedling are both considered to be medical procedures and must be performed by an appropriately trained and skilled person under the supervision of a physician or nurse practitioner, including physician assistants either in collaboration with or under supervision of a physician, registered nurses, licensed practical nurses and trained medical assistants. Aestheticians, such as the person who operated VIP Spa, are not licensed to perform or provide oversight for these procedures.

The medical aesthetics industry is thriving, but this is exactly the sort of thing that could kill it. All over the country, unqualified people are doing things they shouldn't be doing, not following the rules or being safe, and potentially causing incredibly serious health issues and even deaths, such as in this recently publicized case of plastic surgery practices in South Florida that have caused the deaths of at least 13 people. Situations such as these are exposing the seamy underbelly of the industry, and while legislators struggle to catch up with the issues that are emerging, compliant providers may well get caught up in any kind of blowback that results from incidents such as these.

As we’ve discussed here before, we have to do better. AmSpa is currently working to develop a set of standards that will help the medical aesthetic industry govern itself and provide patients with reliably safe, satisfying treatment experiences. Stay tuned to this space to learn more about this effort and what you can do to participate.

Medical spa clients shouldn’t have to worry about contracting life-shortening illnesses or even dying as a result of their aesthetic treatments, but if stories such as these continue to emerge, that’s exactly what will happen. People may decide that they are more afraid of running into bad actors than they are desirous of looking and feeling their best, and if that happens, it’s the death knell of the industry. We have to prevent this at all costs, and we hope widespread adoption of these standards can help accomplish this.

Tags:  Compliance is Cool  Med Spa Law  Med Spa Ownership  Med Spa Trends 

Share |
PermalinkComments (0)
 

Why a Risk Assessment Is Critical for Your Practice

Posted By Administration, Monday, March 25, 2019

checklist risk assessment

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

For a medical aesthetics practice to best serve its patients and maintain a viable business, it needs to understand the ways in which it may be compromising patient safety or otherwise violating the law. Therefore, if your practice has not undergone a thorough risk assessment recently, it should do so as soon as possible.

“A risk assessment establishes the baseline of where a practice is from a compliance perspective and helps identify risk areas that need to be fixed,” said Michael Byrd, partner at ByrdAdatto, a Dallas-based law firm that specializes in business and health care law. “Let’s get a baseline of where you are so we can figure out what needs to happen.”

A properly conducted risk assessment will cover both business and medical concerns, and it will identify areas where the practice is compliant, areas where the practice needs to be mindful to remain in compliance, and areas where the practice is not compliant that need to be corrected.

“A risk assessment is essentially a blend of legal and clinical evaluation of compliance,” Byrd said. “From a legal perspective, we’re making sure that the ownership is set up in a compliant way, and then that the policies and procedures are set up in a compliant manner. Clinically, do they have appropriate policies and procedures as it relates to treatment, delegation and supervision, OSHA, telemedicine, HIPAA, etc.? A lot of times when we’re doing a risk assessment, we have a lawyer look at it, plus a clinical person, and sometimes even an IT person helping to evaluate if there’s a cyber-security risk from a HIPAA perspective.”

To begin the process of conducting a risk assessment, a practice should engage with a health care law firm that has a great deal of experience conducting such investigations. Additionally, stakeholders need to be prepared to be as open as possible so evaluators can get a clear idea of what is going on at the practice.

“We’ll identify the ownership documents to send us, and then if it’s a full risk assessment, we’ll involve a clinical consultant who’ll look at it from a clinical perspective, and then we’ll work together to make sure that the policies and procedures navigate that particular state’s laws,” Byrd said. “There’s a big element of knowing who’s doing the initial exams and who can be delegated to provide the treatment, and even by procedure, there are certain procedures that are only appropriate for certain providers. That’s a lot of the back and forth we’ll have with the consultant.”

If this sounds like a major undertaking, well… it is. However, it is assuredly better to know the areas in which your practice falls short of compliance and what can be done to correct that rather than remain ignorant and be surprised when an investigation uncovers violations.

“It can be overwhelming, but if it can be integrated as part of the culture of the business, our clients are very successful,” Byrd said. “A risk assessment is really just a starting point, but then you have a culture of following these procedures and evaluating as laws change, technology and procedures change, and your personnel changes, evolving your compliance plan with that. The clients that adopt that as part of the culture of their business have been really successful in minimizing that risk.”

Byrd says that after his firm conducts a risk assessment, it typically will check in with clients every three months to make sure that everything is on track. If a firm does not offer periodic check-ins, he recommends repeating the risk assessment process annually.

Tags:  Business and Financials  Compliance is Cool  Med Spa Law  Med Spa Ownership  Med Spa Trends 

Share |
PermalinkComments (0)
 

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

Posted By Administration, Thursday, December 6, 2018

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

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

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

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

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

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

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

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: