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How Practices Can Effectively Use Social Media

Posted By Administration, Thursday, August 22, 2019

filming surgery

By Renee E. Coover, JD, ByrdAdatto

Social media in plastic surgery practice continues to explode, driven by the marketing opportunities created by the public’s unabashed desire for before-and-after photos and live patient surgeries. But with this reliance on social media to market and advertise, a plastic surgeon’s practice assumes often unknown risks. In a recent Los Angeles Magazine article, Beverly Hills Plastic Surgeon Ashkam Ghavami, MD, who has almost 400,000 Instagram followers to his practice, acknowledged the challenges in balancing ethics with entertainment. According to Ghavami, “Because social media is the most valuable marketing tool of our trade, some surgeons post deceptive before-and-after photos of patients on social media. This creates an uneven playing field and, worse, harms the potential patients who are trying to choose their surgeon.”

Questions arise as to what is appropriate or legal for a physician to advertise on social media: Does it require patient consent? Who ultimately owns the content that is posted to social media?

Here are some key compliance considerations for social media in your plastic surgery practice:

  1. Obtaining patient consent. Patient consent for social media use should be separate from other consents. Consent must deal with the circumstances of the social media use. A wide range of circumstances that can impact consent. Before you ever post before-and-after photos of a patient’s Brazilian butt lift, you must obtain written consent from your patient. Likewise, if your patient brings in a friend or relative to live-stream a video of his or her medical procedure, it still requires direct consent from the patient. Without patient consent, a plastic surgeon puts his or her license at risk by posting patient photos or videos to social media.
  2. Physician advertising rules. Physicians are subject to specific state medical board advertising rules that control the messages they advertise so as not to be deceptive or misleading to the public. The Federal Trade Commission (FTC) also regulates physician advertising. (For more on this, read Michael Byrd’s recent article “FTC Focuses on Social Media for Truth in Advertising.”) The American Society for Aesthetic Plastic Surgery (ASAPS) and the American Society of Plastic Surgeons (ASPS) also regulate physician advertising; for example, check out this article, which discusses the first code of ethical behavior for sharing videos of plastic surgery on social media, published by Northwestern plastic surgeon Clark Schierle, MD, and presented at the ASPS annual meeting. Using “enhanced” before-and-after photos or stock image photos, using models, allowing staff to post their personal beliefs and opinions on your social media accounts, and communicating directly with patients via social media are just a few ways plastic surgeons get in deep trouble with physician advertising laws.
  3. Ownership of social media. The ownership of content posted by employees often is unaddressed. For example, physicians and nurses often post before-and-after photos to their personal social media accounts. This creates both potential infringement issues and patient privacy issues. As attorney Bradford Adatto noted in his recent article, “5 Key Details Every Plastic Surgeon Should Know About Their Employment Agreement,” relating to plastic surgeon’s employment agreements, there are a substantial number of patient privacy laws to understand before posting patient photos to social media. Further, if the practice intends to keep all social media content as its property, whether it is posted to a practice account or an employee’s personal account, this needs to be addressed in a social media policy.
  4. Social media policy. A variety of issues arise when using social media to advertise medical services; thus, it is crucial for every plastic surgery practice to develop a social media policy to address issues such as employees’ use of social media and ownership of the content. The social media policy also should be mentioned in your employee handbook. Simply having a social media policy is not effective unless all staff have been informed of the policy and management is trained to implement and enforce the policy.

All this information also applies to medical spas. To learn more about how to effectively use social media in a medical aesthetic setting, consider attending an AmSpa Medical Spa & Aesthetic Boot Camp. Each Boot Camp features a session on social media, as well as useful information about all aspects of running an effective medical aesthetic practice. AmSpa Members save when registering for Boot Camps—click here to learn how to join.

Tags:  ByrdAdatto  Med Spa Law  Med Spa Trends 

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Should Your Medical Spa Tell Yelp to Buzz Off?

Posted By Administration, Thursday, August 15, 2019

negative reviews

By Jeff Segal, MD, JD, ByrdAdatto and Medical Justice

Have you heard of Botto Bistro? It’s a pizzeria in the Bay Area. Chef Davide Cerrentini, who emigrated to the US in the ‘90s, opened the restaurant’s doors in 2009.

Cerrentini is famous for asking happy diners to give him a one-star Yelp review. That’s right—one star.

Botto Bistro has accrued thousands of these reviews, and was at one time ranked as the worst-rated restaurant on Yelp. To Cerrentini, that was a badge of honor.

By the way, he is immensely successful.

Here’s what happened, and why Cerrentini embraced the lowest of the low reviews.

Shortly after the restaurant opened, he received calls from Yelp salespeople. They suggested he buy ads on Yelp. When he told the salespeople, “No thanks,” he observed that some recent five-star reviews had disappeared.

“I came from Italy, and know exactly what mafia extortion looks like,” he said. “Yelp was manipulating reviews and hoping I would pay a protection fee. I didn’t come to America and work for 25 years to be extorted by some idiot in Silicon Valley.”

Cerrentini then turned to the dark side. He wrote his own five-star reviews to replace the real ones that were removed. He also wrote negative reviews of neighboring restaurants.

Ultimately, he gave in. He started spending $270 per month to advertise on Yelp.

After six months, he pulled the plug. He found the service “useless” and cancelled his advertising. Then, his star rating dropped.

In the spring of 2014, after turning down another Yelp salesperson, Cerretini claims that four five-star reviews were filtered from his page, and three one-star reviews were suddenly catapulted to the top of the page. For the chef, this was the final straw.

“What if I don’t give a s*** about reputation?” he said. “What if I take away their power by actually making it worse?”

One morning in September 2014, he placed a simple sign in front of Botto Bistro: “Give us a one-star review on Yelp and get 25% off any pizza! Hate us on Yelp.” (The discount was later increased to 50%.)

The next day, business exploded. Cerretini was making money hand over fist. Botto Bistro quickly had more than 2,000 reviews. Most of the ratings praised the food and the service, and then gave it one star.

“Botto Bistro sucks,” wrote one reviewer. “Delicious food priced fairly. One star.”

“Seriously, who puts meat on pizza?”

“Don’t try the pizza, it’s so good you will come back every night, it completely ruined my social life cause each night I only want to go there. I hate this place.”

“I ordered meatballs and they were served upside down.”

A Yelp support member sent Cerrentini an email chiding him for offering incentives in exchange for a review. That was a violation of Yelp’s terms of service. Hmm.

Other business owners have followed Cerrentini’s lead. Some have posed “No Yelpers” signs in their windows.

A new documentary called Billion Dollar Bully catalogues the Yelp controversy. Click here to check out the trailer.

Cerrentini has been very successful with his high-risk gambit. It took a lot of guts.

“Most people are not ready to stop caring about reviews—it’s a big risk,” he said. “But I’d rather sit alone in my restaurant then get business from Yelpers.”

What do you think? Particularly related to Yelp in the health care space?

We understand the temptation to ignore outlets like Yelp is strong, but we urge doctors to resist the urge. By ignoring a problem post on Yelp, you are denying patients access to a counter-narrative. And if there is no counter-narrative, there’s an increased risk the doctor will be defined by that problem post.

This is a bad outcome—patients prematurely reject doctors who are qualified to treat them, and doctors miss the opportunity to treat patients.

So what’s the remedy? We advise doctors take a proactive approach. Before you get blasted online, populate the internet with accurate descriptions of your quality of care. In this way, when the inevitable happens, you have a defense against the angry, the uninformed and the malevolent.

Medical Justice has designed a program that addresses these obstacles. The program exists for two reasons—the first is to keep your online reputation out of the crosshairs, and the second is to help new patients find you.

Jeffrey J. Segal, MD, JD, is a neurosurgeon turned serial entrepreneur turned attorney at ByrdAdatto who has literally been in both business and medicine. Segal was a neurosurgeon in private practice before beginning the second phase of his career as a serial entrepreneur in the health care field. He then founded or co-founded four separate health care startups. Segal lives and breathes health care and understands it viscerally.

Tags:  Business and Financials  ByrdAdatto  Med Spa Law 

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How Do You Name a Medical Spa in New York (And Elsewhere)?

Posted By Administration, Wednesday, August 7, 2019

new york city

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

Choosing a name for a new business is one of the more difficult decisions entrepreneurs have to make, and this is especially true in the medical aesthetic industry. A medical spa needs a unique and memorable name that conjures thoughts of vitality, health and beauty, but it also must follow the rules for naming medical and professional entities. As we’ve discussed in the past, most states consider medical spas to be medical practices, and every state has its own rules or standards when it comes to naming and advertising medical practices.

New York state has particularly stringent rules regulating physician advertising. Fortunately, the New York State Office of the Professions provides a useful resource for navigating the rules for naming a professional entity in the state. While these rules are specific to New York, the concepts are similar in many other states.

The requirement that the name of a professional entity must appropriately describe the profession and the professional service being offered is the first and largest hurdle to overcome. In the medical spa setting, the professional services being offered will be “medicine” or “medical”—or, for independent nurse practitioners, “nursing.” But these terms are very generic and don’t accurately convey the type of experience and services offered in most medical spas. To provide a better description, you might be tempted to use terms such as “aesthetic,” “esthetic” or “anti-aging” to describe medical spa services, but these terms fall under the “specialty area” naming rules in New York. Essentially, if you want to use a special branch of a profession—in this case medicine—the Office of the Professions requires that you submit proof of certification in that specialty practice. While physicians may obtain board certifications in dermatology and plastic surgery, practicing in the area of aesthetic medicine does not come with specialty board certifications.

Could you add “medical spa” to the end of the name for your professional entity? Using the term “medical spa” reflects the required “medical” professional practice area, and “spa” makes it clear to the public what types of aesthetics services you plan to offer. This seems like a good alternative, but, unfortunately, the term “spa” in connection with “medical” are among a list of words specifically prohibited as being misleading in New York. And it isn’t only “misleading” terms that are prohibited: Professional entity names cannot suggest an affiliation with another entity or imply professional superiority. Therefore, whether intentional or not, the chosen name can’t be too similar to the name of another entity, and it also can’t include ideas such as “best,” “advanced” or “expert.”

To add an additional twist, New York medical spas face the same restrictions when choosing an assumed name under which to practice, also known as a “doing business as” or “d/b/a” name. Many states have particular rules in naming the registered professional entity, but they often allow more flexibility in using assumed names. This is not the case in New York—the assumed names of professional entities must follow the same naming requirements.

While New York is particularly strict, each state has its own rules that govern business naming, especially for businesses that provide medical services. Before you spend valuable time and money on signage, web design, advertising and marketing, it is important make sure that you choose a name that complies with your local and state laws. If you want to learn more about effective medical spa marketing and business practices, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps.

Tags:  Business and Financials  Med Spa Law  Med Spa Trends 

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Alabama Board of Medical Examiners Publishes Statement on Use of Lasers and Other Devices

Posted By Administration, Tuesday, July 30, 2019

coolsculpting blog

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

The most recent issue of the Alabama Medical Digest (published July 24, 2019) contains an interesting article that clarifies the Alabama Board of Medical Examiners’ stance on the use of lasers, intense pulsed light (IPL) and other energy devices that affect living tissue. According to the article, it was motivated by the number of questions the board gets about what devices a non-physician can use and how new technologies, such as CoolSculpting, are treated. (A portion of these questions were very likely mine!) To provide answers, the article relies heavily on the board rules under Chapter 540-X-11 of the board’s administrative code, titled Guidelines for the Use of Lasers and Other Modalities Affecting Living Tissue.

On new devices and technologies, the board’s position is that any device that is capable of affecting the tissue below the stratum corneum is a medical device regardless of the particular energy or technology used. Such devices must be used only by a physician or someone under a physician’s delegation and supervision. In this case, cryolipolysis devices such as CoolSculpting and radio frequency heating devices such as Exilis would be considered medical devices and would fall under the board’s rules—specifically the 540-X-11 guidelines. 

These guidelines divide energy- and chemical-based treatments into two broad categories: ablative and non-ablative. Ablative treatments are those that are expected or intended to remove, burn or vaporize tissue. These procedures and treatments may not be delegated to non-physicians and can only be performed personally by physicians. Non-ablative treatments include all other uses of lasers, energy or chemicals, as well as laser hair removal. Under the rules, non-ablative treatments may be delegated to non-physicians in some circumstances—the physician must examine the patient, establish the patient’s treatment plan and sign the patient’s chart, after which the treatment can be delegated to a person who meets the education requirements under chapters 540-X-11.07 or 540-X-11.08. When delegating these treatments, the physician must provide onsite supervision, meaning he or she is physically present in the facility and available to immediately respond if needed. However, when this treatment is delegated to a physician assistant (PA) or a nurse practitioner (NP) who practices at a remote site, the physician is not required to by physically onsite, but still must complete the initial patient examination, treatment plan and chart signing steps.   

The article also touches on the use of telemedicine when the physician performs the patient assessment and examination. The board states that the physician is able to utilize telemedicine for these exams, provided it meets the same standard of care as if the physician were seeing the patient in person.  However, as the article notes, using telemedicine in these cases make little practical sense when the physician must be onsite anyway to supervise the treatments, although telemedicine could be used for PAs and NPs at remote practice sites where the physician’s physical presence is not required.

In all, this article does not drastically change the practice landscape in Alabama. In fact, Alabama AmSpa members familiar with their State Legal Summary will not be surprised by the positions of this article. It does, however, give additional insight to how the Alabama Board of Medical Examiners views its duties, as well as serves as an important reminder that medical and nursing boards across the country are increasingly aware of and taking action in the medical aesthetic industry.

Tags:  Med Spa Law 

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Microneedling Joins Toxins and Fillers as a Leading Medical Spa Treatment

Posted By Administration, Monday, July 29, 2019

procedures

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

It should come as no surprise that injections of botulinum toxin and hyaluronic acid fillers are the treatments most commonly offered by medical aesthetic practices. After all, they provide good return-on-investment (ROI) and are constantly in demand. According to the 2019 Medical Spa State of the Industry Report, 88% of respondents’ medical spas offer botulinum toxin. Furthermore, 73% of respondents’ medical spas cite it as being among their top three most frequently performed treatments, and 56% state that it is the most common treatment for first-time patients.

Hyaluronic acid filler injections are similarly widely available—they are offered by 88% of medical spas—but are not quite as widely administered, appearing in 58% of med spas’ top three most frequently performed treatments.

In the 2017 version of this report, botulinum toxin and fillers were combined as one option, and they were found to be available at 82% of medical aesthetic practices, so their availability is still growing.

And while it finished fourth in terms of availability, microneedling’s ascent into the pantheon of medical aesthetic treatments is perhaps the biggest story of this report. In the 2017 survey, microneedling was mentioned on only a handful of responses; today, it is available at 84% of responding medical spas and is among the top three most popular treatments at 20% of them. 

AmSpa Basic Members receive an executive summary of the 2019 Medical Spa State of the Industry Report, while AmSpa Plus Members receive the entire report. Click here to learn about this and all the other great benefits of becoming an AmSpa Member, and sign up today.

Tags:  AmSpa's 2019 Medical Spa Statistical Survey  Med Spa Law  Med Spa Trends 

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5 Tips for Managing Patient Photos to Keep Your Medical Spa HIPAA Compliant

Posted By Administration, Thursday, July 25, 2019

doctor photographer

By Emily Alten, on behalf of RxPhoto

Before-and-after photos and photos used to document patient procedures are considered protected health information (PHI) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), regardless of whether or not clients are using health insurance to pay for their services. Therefore, it is essential that your practice properly secures patient photos to avoid potential fees for improper PHI handling. Here are five things to keep in mind to ensure that your patient photos remain HIPAA compliant.

Storage

Do not leave photos stored on devices indefinitely, and no photography equipment should ever leave the practice unless it has been wiped of photos. Remote-wipe technologies exist, but if you have set up this capability, make sure you are up to date on the most recent Health Information Technology for Economic and Clinical Health Act (HITECH) regulations. (Click here to learn more.) If using a DSLR camera, photos must be uploaded to a computer regularly and the SD card must be wiped clean so that photos cannot be accessed outside the practice or by anyone other than a trained staff member. If using a mobile device, the simplest way to remain HIPAA compliant is to use a service that stores photos in a HIPAA-compliant cloud server for you. That way, when photos are taken, they are automatically stored on the cloud and never stored on the device itself.

Communication

Sending or receiving photos of clients is an easy way to fall into HIPAA non-compliance. Emails are a big no-no. HIPAA requires that electronic communications with any PHI—including photos, names, any medical information or anything that can be used to identify a patient—be properly encrypted to ensure privacy. Also, be aware that sharing information with another party requires a consent form from the client to acknowledge that he or she is aware of what information being shared and with whom. HIPAA also states that communication between two parties should only include the minimum necessary information to properly care for the patient; however, if the client is a mutual patient of the two parties sharing health information, it can be freely shared.

Marketing

It may be obvious that consent forms are required to use any client’s information or likeness in order to market your product, but you should be aware that blacking out a subject’s eyes or even face is not enough to remove all possible identifying features or information. Getting consent forms and being transparent with clients about how their information might be used by the practice is the most prudent move.

Social Media

Social media is an excellent way to market to and communicate with present and potential clients. However, it is easy to slip into HIPAA-violating familiarities online. Even confirmation that an online persona is a client violates HIPAA rules. Make sure that any online communication from the practice does not include any of the following information:

  • Recognition that someone is a client—“It was nice to see you the other day,” or, “Glad you enjoyed your visit”;
  • Discussion or comment on a treatment—“We’re glad you’re happy with your Botox”; or
  • Recommendations for treatments, which could be considered medical advice from a non-MD source—or, worse, public medical advice violating patient confidentiality.

Educate Your Staff

Your staff should be educated on HIPAA and HIPAA compliance to ensure that your practice is doing everything it can to remain above-board. There are numerous resources, including online courses, that offer HIPAA training for medical staff; pricing averages approximately $25 per employee. (HHS.gov, HIPAAExams.com and MyHIPAATraining.com are among the sites that offer these training opportunities). This will not only keep your practice HIPAA compliant, but also help keep any staff/client communication professional and courteous.

Writing enthusiast and biology nerd, Emily Alten specializes in educational health care and medicine content. She is a Magna Cum Laude graduate from Columbia University with a degree in biological sciences/pre-medical studies.

Tags:  Guest Post  Med Spa Law  Med Spa Trends 

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Crackdown on Fraud and Abuse Serves as Warning to Medical Practices

Posted By Administration, Wednesday, July 24, 2019

doctor in handcuffs

Jay Reyero, JD, Partner, ByrdAdatto

In addition to the bright sun being so prevalent during these warm summer months, the fraud and abuse enforcement spotlight shines bright on Oklahoma and Florida.

In Oklahoma, two cases were filed involving a total of three physicians and five marketers, who all were charged with anti-kickback violations involving compounded prescription drugs. In one case, the fallout continues from the compounding pharmacy prescription scheme involving OK Compounding, where three physicians and a marketer were charged with anti-kickback violations and other criminal offenses. The allegations involve kickback payments disguised through medical director and consulting arrangements with the pharmacies. In a second case, a Texas marketer was charged with conspiracy to pay health care kickbacks for recruiting physicians to prescribe compounded drugs in exchange for a commission based upon reimbursed prescriptions. In a final case, three marketers were charged with kickback violations for a direct payment to a prescribing physician.

These cases offer a reminder that medical director, consulting and marketing arrangements are heavily scrutinized and will not disguise any intent to pay for referrals. Parties must carefully analyze their arrangements and ensure the intent and substance behind the arrangement matches the form of the contract.

In Florida, an owner of a substance abuse facility pled guilty in a massive $57-million money laundering conspiracy involving hospital pass-through billing. In the scheme, the owner arranged for his facility to send patient urine samples to a laboratory for testing in exchange for 40% of the insurance reimbursement. The laboratory, in turn, entered into arrangements with rural hospitals to have the testing billed under the hospital’s provider number using hospital in-network contracts. The owner also arranged for other substance abuse facilities to participate and receive 30% of the insurance reimbursement while he received the other 10%.

Hospital pass-through billing arrangements have become problematic as hospitals, clinical laboratories, and other parties seek arrangements to maximize both operations and profits.  Arrangements between hospitals and laboratories must be closely scrutinized and regulatory compliance carefully analyzed.

If you want to keep your medical spa compliant with state regulations and move your business forward without engaging in illegal activities, click here to learn how to join AmSpa.

Tags:  ByrdAdatto  Med Spa Law 

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The Legalities Behind HIPAA and Social Media

Posted By Administration, Monday, July 22, 2019

social media

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

A well-executed social media campaign can be extremely beneficial to a medical aesthetics practice. Millions of businesses use social media channels—such as Twitter, Facebook and Instagram—to increase their brand awareness, and successful social media campaigns can help build strong bonds between practices and their patients.

Unfortunately, medical aesthetic practices and medical spas are particularly susceptible to certain types of social media violations that can attract the attention of the federal government, and investigators will not care whether or not you were aware of these transgressions. You must educate yourself about what you can and can’t post on social media channels to stay on the right side of health care privacy laws.

Understanding Your Identity

It’s important that medical aesthetic and medical spa physicians, owners and operators understand that these practices are, in fact, medical institutions—unorthodox medical institutions, certainly, but medical institutions nonetheless. However, they exist in an unusual market. The services they offer are elective, so they typically market themselves in ways that traditional health care outlets do not. They often present their services as commodities, in much the same way as outlets such as traditional spas and salons do. And because the medical aesthetics market is expanding, there is a great deal of competition for a prospective client’s attention, so marketing campaigns need to be cost-efficient and effective.

This is why many medical aesthetic practices and medical spas turn to social media to help publicize their businesses. However, it is shockingly easy for such a practice to expose itself to patient privacy issues with even the most harmless-seeming social media activity.

An Introduction to HIPAA

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a piece of legislation that regulates the many ways in which the business of health care is conducted in the United States. Since its adoption, however, it has become virtually synonymous with the issue of patient privacy. HIPAA’s Privacy Rule prohibits medical institutions from sharing protected health information, which it defines as anything that can be used to identify a patient. This includes any information at all that could possibly reveal the identity of the patient—his or her e-mail address, street address, name, birth date, Social Security number, etc. All this must be kept completely confidential.

If a medical institution is found to have violated HIPAA, it may be subject to very substantial fines—sometimes hundreds of thousands of dollars per violation. Additionally, many states enforce even stricter patient privacy statutes, so medical institutions must go to great lengths to ensure that absolute patient privacy is observed at all times.

See No Evil

There are three major ways that medical aesthetic facilities and medical spas often violate patient privacy laws on social media without even being aware of it.

1. Publicly reaching out to a patient. If you are connected with clients via a social media channel, such as Facebook or Twitter, it might seem like a good idea to reach out to them after a visit to publicly thank them for coming in. Ideally, this could build a relationship with these clients and entice their friends to follow suit. Unfortunately, this seemingly innocuous act may constitute a violation of HIPAA (and possibly a gaggle of state laws), because you’re revealing that person is one of your patients.

You can still thank your patients via social media; however, you just need to be very careful about how you go about doing it. Consider reaching out to your patients using the private messaging feature of whichever social media platform you are using. You will not be able to reach your client’s friends, but you’ll still strengthen your relationship with your client. However, as any number of disgraced celebrities will tell you, it’s very easy to post something to the public that you intended to keep private. Use extreme caution if you decide you want to attempt this.

Also, if you’re starting a Facebook campaign, establish a fan page rather than a standard user page. That way, your facility’s followers won’t be visible to users.

2. Publicly responding to a positive comment from a patient. Let’s say that one of your clients posts the following on your practice’s Facebook wall: “Had a great Botox treatment here today!” You may be inclined to post a response, such as: “Thanks! We hope to see you again soon!” However, it is important to understand that even this can represent a breach of a patient’s privacy, since you’re confirming that your practice provided the customer with treatment.

This is an emerging legal issue that has yet to be put to the test by litigation, and it could be argued that, by publicly posting that message, the patient is tacitly waiving his or her HIPAA protection. Unfortunately, HIPAA and other state-based privacy laws are very strict, so it’s probably not a good idea to test them.

You can attempt to avoid falling into this trap by stating on your social media channels that, although you appreciate all comments, the best way to deliver them is via e-mail or to call the practice directly. If you do this, you can avoid appearing unappreciative and reduce your potential exposure to patient privacy violations. Alternatively, you can try to draft a form that acknowledges that a patient who signs it wishes to waive his or her HIPAA protection for social media; however, this form would need to be very complex in order to stand up to legal scrutiny.

3. Responding to negative reviews. Yelp is a social media service that allows users to rate the experiences they have with businesses. As of the fourth quarter of 2015, more than 86 million unique visitors per month use mobile devices and 75 million unique visitors per month use desktop computers to refer to Yelp’s more than 95 million user-generated reviews, so make no mistake: This service is immensely powerful. The success or failure of businesses can be determined by their Yelp reviews alone.

This can empower ordinary people and, ideally, lead businesses to provide exceptional service to everyone. Yelp even encourages the businesses that are critiqued to become part of conversation, allowing owners and operators to respond to reviews and engage with users.

Unfortunately, Yelp’s enforcement of its user content guidelines is spotty, so it can have a dark side for businesses. Some reviews are unfair, made by people who have ridiculous expectations or axes to grind. Additionally, some Yelp users post negative reviews if they aren’t allowed to pay the prices they want to pay for products and services, regardless of whether those prices are reasonable. And those negative reviews can impact prospective customers—even if a business has a preponderance of four- and five-star reviews, readers are often compelled to peruse the handful of one-star reviews for entertainment purposes or to familiarize themselves with the worst-case scenarios.

Most businesses have recourse for dealing with problematic Yelp reviews—they can openly engage critical users using the service and attempt to demonstrate that they’ve done nothing wrong. The owners and operators of medical aesthetic practices, however, absolutely cannot respond to these posts, because if they do, they could identify unhappy users as patients, thereby violating patient privacy statutes.

The best way for medical spas to combat bad Yelp reviews—the only way, really—is to encourage satisfied customers to post positive reviews. Unfortunately, this means that you’re essentially asking customers to work to promote your business for free, but there is little else that can be done to address the situation without violating patient privacy laws.

Given the importance of Yelp and the lack of a level playing field regarding its reviews, the owners and operators of medical aesthetic facilities may be tempted to engage in what is known as “astroturfing”—using employees or associates to post fake positive reviews in order to bolster ratings. However, they must resist that urge, as astroturfing can be interpreted as consumer fraud. New York state regulators recently issued enormous fines to several facilities for astroturfing.

The Final Word

Social media can be a valuable tool in the promotion of a medical aesthetic practice, but its use can also be fraught with peril. Owners and operators of these practices should make sure that everyone involved in their social media campaigns—as few people as possible, ideally—understands that it is critically important that patient privacy be respected at all times. Few practices can survive the penalties associated with these violations, so they must be avoided at all costs.

Tags:  Business and Financials  Med Spa Law  Med Spa Trends 

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What You Need to Know About Patient Charting

Posted By Administration, Monday, July 15, 2019

patient charting

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

Medical aesthetic practices and medical spas are medical facilities, so they are subject to the rules and regulations that govern more conventional medical practices, such as doctor’s offices and hospitals. Among these is the requirement to keep detailed medical records for all patients. And although it might not necessarily seem crucial for a medical spa employee to record every interaction with every person seeking a Botox injection, meticulous charting can be a practice’s best defense against unwarranted legal action and unforeseen complications. Read on for a quick primer about what should be expected of patient charting in a medical aesthetics environment.

Charting Basics

A properly maintained medical chart should contain the full story of each patient encounter—who the patient is, why he or she came in, what the diagnosis was, and what the plan of care is. It is critical to ensuring continuity in patient care.

“Professionals need to open up that medical record and be able to discern all the relevant information that they’re going to need in order to make an informed decision as to the course of treatment for whatever the patient approached them for,” explains Jay D. Reyero, partner with national medical aesthetics law firm ByrdAdatto.

Many state medical boards have rules that dictate what an adequate medical record should contain and, while there may be some differences in minutiae from state to state, these guidelines tend to include certain items—the patient’s history, identifying information, the diagnosis, supporting documentation, signed consent, any prescriptions given, and any referrals or consultations provided. In addition, many medical practices have their own statutory requirements for patient charts; reviewing some of these can also provide an idea of what a well-maintained medical record should contain.

At the end of the day, a patient chart will likely reflect the administering physician’s professional medical judgment. If he or she deems the information relevant, it will be added to the record. However, certain common omissions make charts significantly less useful, from both legal and patient care perspectives.

Coming Up Short

The lack of documentation of informed consent is one of the primary shortcomings in many medical records. Generally speaking, physicians need to show that they have followed the standard of care by fully informing a patient about the risks and potential complications of the course of action they are recommending.

“It [documentation of informed consent] is critical to defend yourself,” Reyero says. “Whether it’s malpractice litigation or a medical board complaint issue, those are the most important documents that you’re going to want to have to show that you advised the patient, as much as possible, as to what they were going to do, and that they actually consented to the procedure being performed.”

Additionally, lack of supporting documentation for diagnoses or treatments administered can impact reimbursement, since the physician cannot corroborate the codes that are being billed to the insurance providers.

Many physicians and mid-level practitioners also fail to properly document their supervision and oversight over non-licensed professionals to whom they have delegated treatments. This information demonstrates that the proper steps have been taken for all procedures that have been performed, and the lack of it can be a major red flag if something happens to go wrong with a treatment.

For more guidelines regarding what legally needs to appear on patient charts in your state, consult an experienced local healthcare attorney.

For Your Eyes Only

In medical aesthetic practices, it is typical that both licensed medical and non-medical personnel work with patients. However, due to the privacy protection required by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), some of the information on patient charts must be withheld from the non-medical personnel at the practice.

“HIPAA generally allows workforce members who are employees of the entity [medical aesthetics practice] to have access to patient records, although the entity does have to have proper policies and procedures in place to limit the amount of information accessible by those individuals to what’s known as the minimum necessary,” Reyero says. “Essentially, employees should only have access to information that is necessary to do their job or practices can be exposed to risk. Improper access by employees to information that they don’t otherwise need access to can give rise to HIPAA breach issues. You see that a lot with the celebrity HIPAA breaches, where employees who have no relation to the treatment or care given to a celebrity access their information, and the hospital or facility didn’t have the proper policies or procedures in place to prevent that from occurring.”

State laws regulating patient privacy may be even more stringent than HIPAA, so it is important for medical aesthetic practices and medical spas to establish policies and procedures to prevent employees from accessing information that they do not need. If a practice is using electronic medical records (EMRs), the system can typically restrict access to certain information for users who do not have authorization to view it. If you do not know if your system includes such features (or if you do not know how to use them), consult your EMR vendor to learn how to set them up using your information technology infrastructure.

If your practice does not use an EMR system, it is critical to establish strong internal procedures and the proper training of employees to make sure that everyone is aware of the roles and responsibilities of everyone involved. The practice must also continually update and assess the risks of employees improperly accessing confidential medical records, and it must implement appropriate safeguards in order to prevent that access.

Regardless of the system being used, the practice must hold employees who improperly access confidential medical information accountable. HIPAA and state patient privacy violations can alter a medical aesthetic practice forever, so it is critical that they be prevented at all costs.

Closing the Communication Gap

The issue of maintaining communication about a patient’s history goes beyond HIPAA, however—it is about doing what is right for the patient. So how should medical and non-medical personnel, both inside and outside a medical aesthetic practice, maintain meaningful communication regarding a patient’s history? The best way to do this is to have very clear policies and procedures regarding the tracking and documentation of information within patient medical records, so that the next time a provider has access to that information, it is clear what courses of treatment were offered or accepted following a consultation with a physician.

“Having a very clear set of initial questions, whether that’s on the initial patient examination when it’s their first time at your practice or a set of follow-up questions when it’s a follow-up appointment, can address some of those concerns and find out if the patient has undergone any procedures recently. Have they taken any supplements? Have they received any injections? Those sorts of questions that can determine a different set of care that you’re going to have to give,” Reyero explains. “It’s communicating with the patient up front, making that part of your process of intake with the new patient or the follow-up patient, and then making sure that you cover all your bases. The goal is to get them to talk to you about what they’ve been doing or if they’ve had any changes in their medical history since they last visited you.”

Policies and procedures for patient charting should be developed internally by licensed medical professionals who are familiar with using and maintaining informative medical records. Then these charting guidelines can be incorporated into the environment of the medical aesthetic practice or medical spa.

“Training can take the form of a lunch meeting where everyone is going over what the policies and procedures are and asking questions, or online questionnaires where you print out a certificate at the end of the test, or one-on-one training where you sit down with the individual and you walk through their daily routine and make sure that everything that they’re doing is in line with the policies and procedures in place,” Reyero says. “You can customize it to each individual employee’s relevant situation and circumstances, so that when you walk through their daily routine, you’re being sure that you’re talking about the policies and educating them about the policies that will impact them on a daily basis, and not overwhelm them with 20 different policies when maybe only two are applicable.”

Writing the Story

Those who create and maintain medical records have a duty to make sure that the information on a patient’s medical chart is complete and accurate, so that there is no potential for the disruption of care that might be given in the future. A physician who opens up that document should feel like he or she has all the information needed to make an informed decision. A medical record should tell a patient’s entire story, because ultimately a physician’s job is to make sure that story continues.

Tags:  Med Spa Law  Med Spa Trends 

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California RN Board Holds Enforcement Webinar

Posted By Administration, Friday, July 12, 2019

sad nurse

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

This past Monday, July 8, the California Board of Registered Nursing presented a webinar on the enforcement and intervention programs of the organization. The webinar covered multiple topics, but covered in most depth the process of coming under investigation and some of the aspects of the disciplinary process. While this information applies to just one professional board in one state, professional boards in all states have some type of enforcement and intervention program. Additionally, the California Board of Registered Nursing is the largest nursing board in the country, and it often serves as a model for other states to follow.

The disciplinary and enforcement process begins with the board receiving a complaint. Complaints can be made by anyone, including people who remain anonymous. The board also can become aware of issues through arrest reports from law enforcement agencies.

According to the board representatives, most complaints fall into three main categories.

  1. Substance abuse issues. The largest of the three categories includes issues that originate from DUIs and drug-related arrests, people filing complaints, and nurses referring themselves to the board. In the case of an arrest, the board is able to pursue disciplinary actions with or without a criminal conviction. Depending on the nature of the complaint, the board may offer the nurse the opportunity to voluntarily enter the intervention program as an alternative to the formal discipline process.
  2. Behavior-related issues. From the board’s description, this is the most varied category, but all offenses involve a failure to meet the standard of nursing care. These violations range from errors in performing nursing tasks to improperly dispensing drugs, as well as patient abandonment.
  3. Issues related to fraud and dishonesty. These types of violations include pre-filling patient charts, documenting activities not actually done, and altering or falsifying medical records to cover up or hide mistakes.

Since the largest category of investigations involves substance abuse issues, it is not surprising that a major portion of the presentation was dedicated to aspects of the board’s intervention program. In this program, nurses experiencing substance abuse or mental health issues can get support and help to work their way back to practice. Nurses may self-refer to the program or be referred by the board as a result of a complaint. While a nurse participates and progresses in the program, the board will refrain from imposing disciplinary actions on him or her. The intervention program includes clinical assessment and treatment, random drug testing, participation in a nurse support group, and an appropriate 12-step program. However, the board stressed that the intervention program is intended as an alternative to discipline. Nurses who decide to enter the program must surrender their licenses until they complete the program, and those who leave the program early or are not compliant with the requirements may be subject to further investigation and formal discipline.

The types of discipline available to the board range from issuing citations and fines to revoking or suspending the nurse’s license, as well as placing him or her in question on probation. If you are interested in watching the webinar, the presenters assured attendees that a recording would be made available on the board’s website in the coming weeks. Fortunately, the board’s website does currently have a number of resources related to enforcement and intervention.

Even if you are not in California, every person should be familiar with their state’s professional license discipline and intervention process. Maintaining a high level of professional conduct is important both for public safety and for the credibility of your profession. You also may find that your board is able to provide assistance to yourself or a colleague before a small issue becomes a big one.

Tags:  Med Spa Law  Med Spa Trends 

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