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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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Knowing How Is Only Half the Battle

Posted By Administration, Tuesday, April 9, 2019

laser tattoo removal

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

Training and education are valuable tools that can help you grow and develop your practice. However, before you spend a fortune on training, make sure you legally are able to perform the procedures. Education, skill and competency—these or similar terms are found throughout rules and regulations that govern medical and nursing practices, and they communicate the uncontroversial idea that a person should have some skill to safely perform a medical procedure on another person. But training and education alone won’t empower you to perform procedures—only a professional license or certification can do that.

This is the case with all professional licensure, from barbers to lawyers to nurses and doctors: Completing courses will give you the important skills you will need in your future profession. But it is the state-granted license that legally authorizes you to offer those professional services to others. You can quit reading this blog right now (please don’t) and go attend a barbering program to learn how to give the smoothest shaves known to man, but you will be breaking the law if you start practicing before getting a barber’s license from your state’s barbering board.

Laser or injection training can be invaluable, but it is useless to a medical assistant (MA) or nurse in a state that prohibits a physician from delegating injections to nurses or unlicensed individuals. As is often the case, “who can do what” varies significantly from state to state. (AmSpa Members can click here to check their state legal summary.) For example, in Texas, an MA with proper training and supervision is able to perform Botox injections. However, in California, MAs may not perform injections, nor may license vocational nurses (LVN)—only registered nurses (RN) and higher may perform those procedures there. In Florida, the nursing board has consistently denied RNs from including Botox injections in their scope of practice. Similarly, the Rhode Island Board of Nurse Registration and Nursing Education holds the stance that RNs and LVNs are not able to inject Botox or other fillers. AmSpa advises that as a best practice, medical aesthetic practices should only utilize RNs and higher for cosmetic injections, even if your state permits others to perform the procedures. But whatever you choose to do, it isn’t a good idea to spend time and money training up an employee who legally can’t use the training.

Now, the professional license that grants this authority doesn’t necessarily need to be your own. Many states allow appropriately trained people to perform procedures under the delegation and supervision of a licensed professional. In these cases, showing documentation of the appropriate training and skill is critical for compliant delegation of the procedure.

Laser hair removal and tattoo removal technician “certifications” are other common areas where this crops up. Most states do not recognize such certifications and restrict the use of lasers only to individuals with medical or nursing licenses. Even in states with laser technician licenses, the person must complete a particular state-approved education course and then apply for licensure with the state; simply taking any training course won’t do. So before signing up for training, find out how your state treats laser technicians and if that course meets state requirements.

Investing in training, education and skill development is crucial to having a successful medical aesthetic practice. But because states have different rules on professional scopes of practice, supervision and delegation, it is important to make sure your money is wisely spent. You must be sure that your state’s licensing boards include the new procedure in your scope of practice.

Tags:  Med Spa Employee Types  Med Spa Law  Med Spa Trends 

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Legislative Update: PAs & APRNs Gain Ground in First Quarter of 2019

Posted By Administration, Friday, April 5, 2019

legislature

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

As the first quarter of 2019 draw to a close, so does a flurry of new bills being filed in legislative bodies across the country, and a good number of these bills may affect how medical spas operate. Additional bills will continue to trickle in, but in many states, congressional and senate sessions adjourn in late spring or early summer, so this is by far the busiest season of the year for new legislation. Tens of thousands of bills have been filed, and some have the potential to affect the medical aesthetic industry. If you are an AmSpa Plus Member, you may have received updates about legislation of interest in your state. Here is a short recap of the bills we’ve seen so far and some possible trends that may be emerging.

A move towards independent or less restrictive practice for advance practice registered nurses (APRNs) and physician assistants (PAs) is by far the most prominent development we have observed. These bills run the gamut from allowing physicians to oversee more PAs and APRNs to allowing PAs and APRNs to practice without any formal agreement or supervisory relationship at all. If these bills pass, they will change the landscape of medical practice. Once health professionals are able to practice on their own, it will lead to an explosion of independent practices and clinics, and that almost certainly will include practices that focus on aesthetic procedures. We’ll provide a deeper dive into these bills in a future article.

Next, we have not so much a trend, but rather a class of bills that would regulate aspects of medical practice or procedures at medical spas. For example, AB 821 and SB 2834 in New York would provide a regulation and licensing regime for the practice of laser hair removal, a practice that currently is unregulated in the state. Both Colorado and Oregon have introduced bills to regulate smoke that results from laser procedures; these laws currently would only affect hospitals and ambulatory surgical centers, but could easily be expanded to include all laser procedure practices. In Kansas, SB 120 would allow corporations to practice medicine. In Arizona, SB 1287 would allow laser technicians to perform procedures without medical supervision—instead, they only would be overseen by a laser safety officer. And in Florida, SB 732 originally would have brought significantly more regulations to medical spas but has since been amended to be less onerous. Most recently, in Texas, SB 2366—which we have covered in previous articles and a webinar—would greatly restrict who could perform procedures in a medical spa.

Overall, a mix of beneficial, neutral and restrictive bills has been introduced this year. However, the restrictive bills would prove far more damaging than the “good” bills are beneficial if they pass. All new laws will result in a period of compliance and adaptation. Good bills may let medical aesthetic professionals do things they couldn’t do before or streamline processes. Restrictive bills, on the other hand, may impose entirely new requirements or make some of current practices illegal or uneconomical. It could only take a single bill passing to disrupt the whole industry—successful bills often spread to other states, as legislators look to other states for inspiration for their efforts, so a successful push for a restrictive law in the name of “public safety” may continue in other states. That is why it is critical, now more than ever, to come together as an industry to help determine the rules and regulations that affect this industry. The aesthetic medical field is growing larger every year, and every year will bring more notice from lawmakers.

To receive updates whenever new laws are introduced in your state, become an AmSpa Member—click here to learn more. There is no better way to keep track of the legal matters that affect your medical aesthetic practice.

Tags:  Med Spa Employee Types  Med Spa Law  Med Spa Trends 

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What Texas Senate Bill 2366 Means for the Med Spa Industry

Posted By Administration, Tuesday, April 2, 2019

texas state house

By Courtney P. Cowan, JD, associate attorney, ByrdAdatto

As many in the med spa industry are aware, Texas Senate Bill 2366 (SB 2366) was introduced earlier this month in the current legislative session. Almost instantaneously, it sent shockwaves through the medical community when it was filed by Senator Brian Hughes of District 1 on March 8th.

For context, the 86th Texas legislative session began on January 8, 2019, with almost 9,000 bills being introduced this session. March 8 was the last day to file a bill for the current session, which is notable since that was also the same day SB 2366 was filed. The regular session ends on May 27, 2019.

As the second step in a long legislative process, SB 2366 has been assigned to the Senate Business & Commerce Committee. This Committee will look over SB 2366, deliberate it, recommend it for amendment, and hold public hearing on it. At the end of its review of the bill, the Committee will give a report back to the Senate at large, which will then decide whether SB 2366 should be approved or disapproved. If it is approved, then SB 2366 will go to the Texas House of Representatives for review, repeating the entire process described above again before going to the Governor to be approved as law.

ByrdAdatto and American Med Spa Association (AmSpa) have been in contact with Senator Hughes’s office to gather more insight into the introduction of SB 2366. After speaking with a representative for Senator Hughes, his office commented that SB 2366 as it was introduced was not the intended language of the Senator. Moreover, the representative also stated that the response from the industry and stakeholders had been significantly more than they anticipated.

With all of that being said, it would take a lot of moving pieces, proposing and passing of more bills, as well as various legislative amendments for this bill to ever really take effect against delegated providers in the industry. Another point worth highlighting is that the first iteration of a bill, such as this one, will typically go through many revisions and amendments before ever getting passed (if ever). So even if SB 2366 goes into effect, it likely will look vastly different than the current proposed language.

Due to SB 2366 being such a hot topic within the industry, Patrick O’Brien of AmSpa and Samuel Pondrom of ByrdAdatto gave an in-depth webinar presentation for AmSpa regarding SB 2366. You can listen to Patrick and Sam’s discussion here.

ByrdAdatto understands that SB 2366 could impact Texas and its med spa industry in a big way, and we will continue to monitor the bill as it makes its way through the legislature. While it is uncertain whether SB 2366 will become law, it should be recognized that as the med spa industry continues to expand and grow, there will continue to be legislation implemented to regulate it.

As the daughter of a periodontist, Courtney P. Cowan has been fascinated by the health care field since childhood. Courtney often accompanied her father to his office where she developed an appreciation for physicians and their respective practices. Having absolutely no dexterity that is required to be a surgeon, however, Courtney instead decided to pursue a degree in business while attending Baylor University. It wasn’t until she was required to take a business law course that Courtney discovered her passion for the law. After graduating from SMU Dedman School of Law, Courtney serendipitously connected with ByrdAdatto and now assists our clients by combining her business background with her enthusiasm for health care and the law.

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

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Physician Supervision: Keeping the “Medical” in Medical Spas

Posted By Administration, Thursday, September 13, 2018

By Renee E. Coover, JD, ByrdAdatto

Medical spa laws regarding physician supervision can be critical to a practice’s compliance plan, particularly if the practice utilizes nurse practitioners, physician assistants, nurse injectors, laser techs, or other non-physician providers to administer treatments.

Given the current economic landscape for medical practices, an increasing number of physicians are seeking alternative sources of revenue outside the traditional practice of medicine. Many physicians are turning to medical spas as an additional or alternative source of income, not wrought with the same Medicare/Medicaid and insurance issues currently plaguing the healthcare industry. But as physicians flock to medical spas in the hopes of making an easy income, many overlook the fact that a certain level of supervision is still required for all medical treatment. At the end of the day, the physician is responsible for every patient and if something goes awry, the physician’s license is on the line. 

Recently, our law firm has exploded with calls from physicians and med spa employees asking questions about physician supervision like: 

  • Does the doctor need to be present at all times? 
  • Does the doctor need to see every patient? 
  • What if the doctor consults with the patient over Skype- is that allowable? 

Of course, the answers to these questions, and many others, depend upon your particular state’s laws and regulations. AmSpa members can check their state’s medical aesthetic legal summary to find the answers to their med spa compliance questions.

The Practice of Medicine

First and foremost, it is crucial to know what med spa services require physician supervision in your particular state and what constitutes an adequate amount of supervision. In California, for example, all medical treatments – including Botox and laser hair removal – require physician supervision. Although a physician may delegate medical treatments and initial patient consults to nurse practitioners (NPs) and physician assistants (PAs), the physician must be involved and available to patients in the event of an emergency. 

Ultimately, the physician is responsible for each patient that walks through the door of a med spa. Some states have additional oversight requirements as well. In Illinois, a medical professional must be onsite at the med spa at all times when medical procedures are performed. This means that if a physician owner only has one other employee and that individual is a non-medical professional, the physician must be onsite at all times to supervise the medical procedures. 

Many physicians don’t realize, at least not right away, that treating patients in a med spa is just like any other practice. Most medical spa treatments by and large are still considered the practice of medicine, and the physician must assume ultimate responsibility for all of the patients that are seen and treated at the med spa. The physician must ensure that proper protocols are in place, oversee treatment plans, and safeguard patient confidentiality. While many of these tasks can be delegated, it is the physician, not the med spa owner or the employees, who is going to be held responsible if something goes wrong.

Experience and Training

One pitfall is the physicians’ notion that they can supervise medical tasks outside of their specialty practice, but in most states a physician in a med spa must specialize in, or at least have experience and training in, aesthetic medicine. In other words, the physician overseeing the medical spa and whose license is ultimately on the line, must actually practice aesthetic medicine.

Frequently, general practitioners, OB/GYN’s and emergency room physicians are quick to sign on as “medical directors” of med spas even though they have no experience or training in injectables, laser treatments, or any other aesthetic procedures, but this can get them in trouble fast. Even dermatologists and plastic surgeons should seek out training in these types of medical treatments in order to properly supervise the aesthetic treatments being offered at the med spa.

For more information on medical spa supervision and delegation requirements watch AmSpa’s medical spa webinar on the topic, presented by Michael Byrd, JD, partner at ByrdAdatto.

Telemedicine

With the advent of telemedicine, physicians frequently want to know if they can use real-time interactive communication on programs like Skype or Facetime to consult with and examine patients instead of meeting each new patient in-person, but this remains a gray area in the law. There is a fine line between giving generic health information over a smartphone and actually diagnosing or treating a patient.  Telemedicine is viewed as a cost-effective alternative to the more traditional face-to-face method of providing medical care and in some states it is being cautiously embraced. In Oklahoma, for instance, the state medical board recently passed telemedicine rules exempting physicians from face-to-face meetings with patients if certain criteria are met. Not every state is on board with this and only time will tell if telemedicine will be the future of medicine. Read more on telemedicine in medical spas here.

The bottom line is that physician supervision in the medical setting is a key component to running a successful and legally compliant med spa business. If you are unclear about the level of physician supervision required in your state, you should seek legal guidance from an experienced attorney immediately. AmSpa members can take advantage of their 20-30 minute annual compliance consultation with an attorney from ByrdAdatto.

For more ways to build and run your medical spa practice legally and profitably attend an AmSpa Medical Spa & Aesthetic Boot Camp and be the next med spa success story.

Renee E. Coover, JD, is an associate with ByrdAdatto, a law firm focusing on business, healthcare, and aesthetics. She has a unique background, blending litigation with healthcare law. A former litigator in high-stakes employment cases, Renee has extensive experience with counseling and representing businesses in employment matters, policies, and contract disputes, and defending business owners in state and federal trials. She has also served as General Counsel for the American Med Spa Association, advising health care professionals on regulatory and legal issues governing the medical spa industry.

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

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Nurse Practitioners and Physician Assistants in Medical Spas: An Overview

Posted By Administration, Friday, July 27, 2018
Updated: Thursday, July 26, 2018

By: Sam Pondrom, Attorney at ByrdAdatto

Medical spas utilizing mid-level practitioners like nurse practitioners (“NPs”) and physician assistants (“PAs”) is on the rise in the U.S. Merritt Hawkins, a national healthcare search and consulting firm specializing in recruitment, recently released the results of their annual review of physician and advanced practitioner recruiting.  In it, Merritt Hawkins found that NPs were the third most requested recruitment search, trailing only family physicians (#1) and psychiatrists (#2).  PAs also cracked the top 20 for requested recruitment searches, coming in at #20.

This recent expansion largely can be traced back to two key reasons.  First, NPs and PAs have broad scopes of practice and cost less to employ than physicians.  Second, NPs and PAs have less onerous education requirements, so a person can become a mid-level practitioner faster than they could a licensed doctor.  Accordingly, mid-level practitioners can perform many of the functions of unlimited licensees while reducing the cost of providing a healthcare service.  Moreover, because experts anticipate shortages in the supply of physicians, the use of mid-level practitioners likely will continue to expand because they can bring their services to market faster than physicians.

NPs specifically have been granted full practice authority in several states, and the Medical Group Management Association recently reported that practices employing APRNs/NPs were more efficient and profitable.

One important downside to the increased demand for NPs and PAs is the patchwork of statutes and regulations governing their practice.  NP and PA scopes of practice are set by state law, as are the requirements for supervising and delegating to mid-levels.  This means it is crucially important to understand the type of relationship (e.g., collaborative, supervisory, or independent) that a state requires an unlimited licensee to have with a NP or PA.  It is likewise important to know the limitations a state places on the medical tasks that mid-levels can perform and what tasks, if any, an unlimited licensee must perform to ensure the mid-level is maintaining the community’s standard of care (i.e. countersignature, chart review, meetings with the mid-level, etc.).

AmSpa members can check their state legal summary, or utilize their annual compliance consultation with the business, healthcare, and aesthetic law firm of ByrdAdatto for more information on the legal requirements for mid-level practitioners in medical spas.

If you have any questions about the use of NPs or PAs in your medical practice, please contact Jay Reyero at jreyero@byrdadatto.com or Sam Pondrom at spondrom@byrdadatto.com.

Tags:  Med Spa Employee Types  Med Spa Law 

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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 

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Who Are the Most Commonly Employed Team Members in a Med Spa?

Posted By Aly Boeckh, Thursday, October 5, 2017

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

According to AmSpa's 2017 State of the Industry Survey, physicians, nurses and aestheticians are among the most commonly employed staff at
medical spas. 

Nearly 77% of all medical spas are in some way affiliated with a physician. However, only 48.4% of physicians have complete ownership.     

The full report is available for purchase for $995 here. AmSpa members can request a complimentary copy of the executive summary by emailing Morgan at morgan@americanmedspa.org.

Tags:  AmSpa's 2017 Med Spa Statistical Survey  Med Spa Employee Types 

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