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

New Ohio Law Provides Affirmative Defense to HIPAA Liability in Data Breaches

Posted By Administration, Friday, November 30, 2018

By Robert J. Fisher, Attorney, ByrdAdatto

If you work in a medical spa, you are undoubtedly using the internet in more ways than one. In the age of electronic health records, online patient portals, and rapidly expanding telemedicine, there is an ever growing amount of personal and medical information available to be illegally accessed by wrongdoers with keyboards. As a result, federal and state governments and agencies have taken the “stick” approach by penalizing those who fail to protect their data, such as the $16 million payment Anthem made to the federal government in August for a breach that exposed the personal information of nearly 79 million people, and by recognizing a private cause of action for individuals to sue companies who violate HIPAA standards (see our previous article here).

In contrast, Ohio has recently taken the “carrot” approach by passing the Cybersecurity Safe Harbor Act (“Cyber Act”) that takes a new angle on the data breach issue by incentivizing companies to develop data security plans by offering legal protection rather than by fear of penalty. In the first law of its kind, the Cyber Act allows companies to use an affirmative defense against tort claims resulting from a data breach if an adequate cyber-protection program was in place at the time of the breach.

However, for a company to use the safe harbor, its cyber-protection protocol must meet the criteria set forth by the Cyber Act. Specifically, healthcare companies and practices must meet sector-specific laws and standards such as HIPAA and HITECH both in the written plan protocol, and its implementation. Additionally, the Cyber Act is not one size fits all as each security plan must be tailored in complexity and scope based on certain factors such as structure of the company, sensitivity of information, cost effectiveness of security improvements, and availability of tools.

While this law is specific to Ohio, it may be a sign of laws to come nationwide that would further encourage healthcare companies to protect themselves from suit by implementing strengthened data protection plans. Further, it indicates that HIPAA continues to be the standard on which healthcare companies need to base their compliance programs, regardless of whether HIPAA specifically applies to them. As such, we continue to recommend that all healthcare companies and medical practices protect themselves by preparing and enacting a HIPAA compliant data protection plan, or having their current plan audited for sufficiency.

For more information on best practices, laws and regulations, attend The 2019 Medical Spa Show in Las Vegas, NV.

Robert J. Fisher’s passion for healthcare traces back to his high school days of shadowing doctors. His passion evolved in college to study as a pre-med major. The last major evolution of Robert’s interest in health care was the transition to an interest in health care law. With this education, a business attorney for a father, and a renowned orthopedic surgeon for a father-in-law, Robert has the pedigree for success as a business and health care attorney at ByrdAdatto.

Tags:  ByrdAdatto  Med Spa Law 

Share |
PermalinkComments (0)
 

Keep The Holidays Happy with Legally Compliant Med Spa Events

Posted By Administration, Thursday, November 29, 2018
Updated: Thursday, November 29, 2018

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

Many medical spas and medical aesthetic facilities thank their loyal customers and VIPs with events or parties during the holiday season, where people can undergo treatments while enjoying refreshments with friends and employees. However, despite the frivolity, medical spa owners and operators need to take care to observe all the rules and regulations that they would in the normal course of business. In fact, in a party setting, this might prove to be something of a challenge.

Principle among these concerns is patient privacy. In a party setting, it might seem like no big deal for operators and attendees to take pictures and post them on social media; in fact, it’s the sort of behavior that a traditional retail outlet might encourage, since it shows customers having fun in an exciting setting. However, if photos of a party your medical spa is hosting are posted without a patient’s consent, it is a violation of HIPAA and likely other state regulations related to patient privacy, since you are tacitly admitting that these are your patients. Make sure that anyone appearing in photos you want to post from the party has consented to you using his or her likeness in this fashion; this typically can be accomplished with a disclaimer on the invite, although you should check with your healthcare attorney to make sure that this covers you completely.

Also, regardless of where the party takes place—it’s common for patients to host Botox parties, for example—you must observe the same procedures and protocols that you would in the course of your everyday business. In most states, the law requires that a physician must conduct a face-to-face consultation with each patient who seeks to undergo a medical procedure, and regardless of whether you’re administering these treatments at a party or during normal business hours, they are medical in nature and subject to the rules and regulations that govern medical procedures in your state. (AmSpa members can check the legal summary of medical aesthetic laws in their state.) So by the letter of the law, a physician or licensed practitioner (such as a nurse practitioner or physician assistant) must take a history, conduct a physical and administer an examination to each patient.

After a successful consultation, the patient’s treatment can commence, and while that treatment does not necessarily need to be conducted by a physician or licensed professional, you must make sure that proper supervision is provided. Provided the procedure falls within their scopes of practice, non-licensed professionals—such as laser technicians—may perform the actual treatments in lieu of a physician. However, a licensed professional must be available during the treatment, should the non-licensed professional require his or her assistance.

It is a good idea to make sure that a physician or another licensed professional is always on-site while medical procedures are being performed. Most medical spa treatments have very little risk of complications or negative outcomes, but if one should occur at one of these parties, the presence of a licensed professional will help protect the business against charges of impropriety.

This might seem like a lot of trouble to go to for a party, but the last thing in the world you want is for your state board of health to leave a citation in your stocking. Make sure all your legal bases are covered, and have a happy holiday season!

Tags:  Med Spa Law 

Share |
PermalinkComments (0)
 

Can an Esthetician Do It?

Posted By Administration, Tuesday, November 20, 2018

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

The services that medical spas offer can range between traditional spa beauty treatments to cosmetic medical procedures. Just as medical practitioners have developed less invasive procedures to offer in their practices, so too have cosmetologists and estheticians adopted more invasive procedures. As discussed previously (and here), this can create issues when these procedures fall into the practice of medicine without a license or without proper delegation an oversight. 

The traditional scope of esthetician practice is usually limited to beautifying procedures and applications that do not invade the living tissue. Typically, living tissue ends up being defined as the stratum corneum, the very top most layer of skin. This is the case in South Dakota, where estheticians are limited to only “non-invasive” procedures that are confined to the non-living cells of the stratum corneum. Similarly, North Dakota forbids estheticians from performing any invasive procedures. This limitation to the stratum corneum allows estheticians to perform many of the services offered in traditional spas, but many of the services a medical spa offers will be outside of their scope of practice. (For individual states, AmSpa Members can refer to your state’s summary here.)

The North Dakota Cosmetology Board mentioned above offers a guidance document you can access here which specifically prohibits their practitioners from performing laser use, CoolSculpting, any sort of injecting, microneedling that invades the live tissue, and chemical peels over a certain strength. These cover many of the most popular procedures that medical spas offer. And since estheticians are the most commonly employed licensee in many medical spas, this can create a temptation to practice beyond their scope. In response to this, many states have passed rules and regulations that provide a legal way for estheticians to extend the scope of their services. This process has taken multiple forms which broadly fall into two categories: 1) expanding their scope or practice or 2) providing rules allowing estheticians to perform medical procedures under physician guidance. However these changes can bring their own risks.



Find answers to your med spa law questions with AmSpa's State Legal Summaries.
Click Here


In Minnesota, the legislature passed a law creating an “advanced practice esthetics” license that allows licensees to perform procedures that effect the epidermis. This seems like a minor change, as the epidermis is made of primarily of the stratum corneum. The other two layers of the epidermis are significantly thinner. However, it is enough of a change that many formerly prohibited dermatologic procedures would be permitted within this new scope of practice. In this case, the adopted rules for Minnesota’s advanced practice esthetic license allow practitioners to perform dermaplaning, microdermabrasion, and to use electrical- and light-based skin care treatments. These advanced practice licensees are still prohibited from using lasers, but the other procedures encompass a significant percentage of medical spa offerings. Oregon also has an advanced practice esthetician license that allows license holders to perform “advanced non-ablative esthetic procedures” including, among others, laser-based skin rejuvenation and cellulite reduction. After earning this license the advanced practice esthetician is able to perform services without physician oversight. However, they do need to maintain a collaborative agreement with a medical professional if patients need to be referred. Although both the Oregon and Minnesota advanced licenses prohibit injections, they would still be a versatile licensee to have as part of a medical spa’s team. 

Other states have recognized that, although estheticians may have skills that complement more invasive medical procedures, they still need guidance and oversight of a medical licensee. States such as Wisconsin provide detailed rules for estheticians performing services that are medical procedures under physician supervision. A person licensed by the Wisconsin Board of Cosmetology may provide laser hair removal, microdermabrasion, and certain chemical exfoliation procedures; however, this can only take place in a licensed salon and under the delegation, supervision, and written protocols from a licensed physician. Similarly, Kentucky forbids estheticians from performing common medical spa procedures, such as Botox injections, laser treatments and microblading unless under the direct supervision of a physician. Here, direct supervision means within immediate distance to be able to respond to the patient if needed. These states and others like them attempt to strike a balance between expanding esthetician and cosmetologist’s scope of services and providing sufficient medical oversight.

Many states do not have the formalized rules or roles that allow estheticians expand their scope or perform more invasive procedures offered Minnesota, Wisconsin, or Kentucky. In some of these states, physicians may still be able to delegate procedures to other unlicensed individuals known as medical assistants. This may include people who hold esthetician licenses, but usually requires that they not hold themselves out as practicing under their license. Texas is one such state: Estheticians and cosmetologists may only provide their services in a licensed salon. Furthermore, physicians are unable to delegate cosmetology procedures to those licensees. However Texas law and its medical board do allow physicians to delegate certain procedures to others, including medical assistants. Since these procedures are not within an esthetician’s scope of practice, they could only perform them as an unlicensed medical assistant under the supervision of a physician.

Estheticians can be very valuable and versatile employees to a medical spa. They offer a wide variety of services that complement and enhance the other cosmetic medical procedures offered by licensed health care professionals. And in the states that offer expanded scopes of practice or advanced practice licenses, estheticians can even perform some of the more invasive procedures offered. It is, however, critical that medical spas operate well within the rules for delegation and licensees’ scope of practice. Even where the laws and rules are seemingly clear in allowing a procedure to be done by an esthetician, caution should still be exercised. When a physician’s supervision is required, there is always a requirement that the physician confirm that, in their professional judgment, the person has the appropriate training, skills, and experience to perform the procedures. Clearly this is a subjective standard, and the physician’s judgement in regard to what constituted sufficient training and skill would come under close scrutiny by the medical board if there were ever a complaint or adverse patient outcome reported. The physician’s license would depend on the board agreeing with the physician’s prior assessment and, when a patient has been harmed, the board may be less inclined to agree. On the other end of the relationship, if the physician is not providing sufficient oversight or is allowing the esthetician too much free reign, the esthetician could be made vulnerable to discipline from their own board for exceeding their scope of practice or subject to charges of practicing medicine without a license.

It is critical to every medical spa’s success and to the continued success of our industry as a whole that medical procedures are performed by properly trained and licensed people under appropriate supervision well within the rules and regulations of each state.

For legal updates and business best practices delivered straight to your inbox, subscribe to AmSpa’s email newsletter. For more information on how AmSpa can help your practice operate legally and profitably, Contact Us online or call us at 312-981-0993.

Tags:  Med Spa Law  Med Spa Trends 

Share |
PermalinkComments (0)
 

Understanding CoolSculpting and Your Med Spa

Posted By Administration, Monday, November 19, 2018

By Brad Adatto, JD, Partner, ByrdAdatto

Whether you’re an entrepreneur or a veteran business owner of a med spa, you know that business tends to run hot and cold. But does it really matter that business is hot when lifestyle preferences are cooling down? Literally. CoolSculpting is the growing phenomenon that is shifting a culture that was once obsessed with burning fat to freezing it.

CoolSculpting offers a fat reduction alternative to liposuction and a lifestyle alternative to diet and exercise by freezing and eliminating targeted fat cells using a process called cryolipolysis. The process is noninvasive, nonsurgical, and FDA approved. But make no mistake, there are still plenty of legal considerations to navigate before entering into one of the fastest growing practices in the country.

While the procedure is commonly referred to as a “cosmetic” treatment, CoolSculpting, or cryolipolysis, is considered the practice of medicine and a medical treatment in many states. Therefore, businesses must be extremely careful when navigating state laws regulating the practice of medicine, including the ownership and staffing of a CoolSculpting business.

Here’s what you need to know:

Ownership. You should develop your business and ownership model according to the laws of the state(s) in which you plan to practice. Because these laws vary from state to state, you need to know how to legally structure your CoolSculpting business and the type of liability that may be associated with the structure you choose.

You also need to know if there are any licensing restrictions on owning a business that renders medical services in the state(s). California, for example, limits the ownership of businesses that provide medical treatments to California-licensed physicians, but also allows partial ownership by a list of other non-physician health care providers, subject to strict and narrow business and ownership structure requirements.

The Practice of Medicine. What constitutes the practice of medicine or medical treatment varies from state to state, and these laws can be specific and nuanced to varying degrees. Therefore, you need to know whether CoolSculpting is considered the practice of medicine, and consequently a medical treatment, in your state. For example, Texas considers diagnosing a person as an appropriate candidate for a cosmetic medical procedure and giving orders for their treatment to be the practice of medicine.

Staffing. Medical professional scopes of practice not only vary from state to state, but also vary depending on the training, experience, and skill of a medical professional. Therefore, you need to know who can legally perform the treatment in your facility. It critical that state laws governing who can legally perform medical treatments, such as cryolipolysis, are not confused since many states only permit state-licensed physicians, physician assistants, nurse practitioners, and certain other licensed healthcare professionals to perform cryolipolysis, subject to state laws governing delegation and supervision.

Brad Adatto, JD, is a partner at ByrdAdatto, a business, healthcare, and aesthetic law firm that practices across the country. He has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions, and contract terms, including Medicare fraud and abuse, anti-trust, anti-kickback, anti-referral, and private securities laws.

Tags:  Business and Financials  Med Spa Law  Med Spa Trends 

Share |
PermalinkComments (0)
 

What Does the Recent Texas Botox Arrest Mean to You?

Posted By Administration, Thursday, November 15, 2018

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

As many have seen in the news recently, a Texas LVN named Michelle Bogle from Savvy Chic Medical Spa was arrested under the claim that she was practicing medicine without a license.; specifically, she was offering Botox injections. Although all of the facts about the case are not known, AmSpa wanted to take this time to review the rules in relation to delegating cosmetic medical procedures in Texas. The state of Texas is fairly liberal in who it allows to physically perform Botox and other injectable procedures. Anyone with proper training may inject Botox and other cosmetic injectable as long as it is under the protocols, supervision, and delegation of a physician. The Texas Medical Board has adopted Rule §193.17 (available here) to provide guidance to physicians who delegate these nonsurgical cosmetic procedures. The rule applies to nonsurgical cosmetic procedures, including injecting or using a prescription medical device performed by someone who is not otherwise licensed to perform the procedure and not a physician, PA, or NP.  The rule includes 13 points that physicians must adhere to in properly supervising and delegating such a procedure to anyone other than a physician assistant or a nurse practitioner. These include the following.

  1. A physician is responsible for being properly and appropriately trained in the specific procedure, and keep records documenting their training.  
  2. Before the procedure is performed, the physician or a PA or NP acting under their delegation must perform an initial examination. This examination must include: taking a history, performing a physical exam, making a diagnosis, recommending treatment, developing a treatment plan, obtaining a patient’s informed consent, and providing emergency and follow-up care instructions. They must also maintain medical records, and have signed and dated written protocols and standing orders for the procedure
  3. Following the above examination and diagnosis, the procedure can be delegated to another person as long as a PA, NP, or physician is on-site, or the delegating physician is available for emergency consultation and able to conduct an emergency appointment if necessary.
  4. The physician, regardless of who they delegate to, maintains ultimate responsibility for patient safety. 
  5. The physician is also responsible for documenting and maintaining the patient records. 
  6. The facility must have a quality assurance program in place, including mechanisms to identify complications, adhere to protocols, monitor the quality of treatments, a review and improvement mechanism for protocols, and ongoing training.
  7. Physicians can delegate procedures only at a facility where they have either approved of that facility’s written protocols for the procedure or they have developed their own protocols.
  8. The physician must also make sure that the delegated person has appropriate training in several areas related to performing procedures (see the rule for details).
  9. The physician must have in place a written office protocol for the delegated person to follow in performing the procedure.  his protocol must identify the delegating physician, criteria for the physician, PA, or NP to screen the patients, and description of appropriate follow-up care including for complications, injury, and emergencies.
  10. The physician must make sure that the delegated person follows that written office protocol.
  11. Patients must sign consent forms before receiving any treatment. The form must identify potential side effects, complications, and identity of who will perform the procedure.
  12. The delegated person who performs the procedure must have a name tag which discloses their name and their credentials. 
  13. The facility must have at least one person on-site who is trained in basic life support whenever a procedure is performed.

Each of these above points are necessary to be in compliance with the rule. However, this article is not meant to be an exhaustive compliance check rather to give more of an overview. So, if you are a physician planning on delegating such procedures to anyone other than a PA or NP, please carefully review the rule in total or consult with an attorney to ensure that you develop policies and procedures that are compliant with its requirements.   

The implications of this story are far-reaching. This is the second instance of an LVN being charged with the unauthorized practice of medicine in recent months as a result of an undercover sting operation (the other occurred in California). AmSpa encourages all of its members—particularly those in Texas—to ensure that they strictly comply with every step of the Texas delegation and supervision rules governing cosmetic procedures. Following each step specifically is critical, and practitioners must take care to pay very close attention to the specifics of the rule and follow it exactly. As now has been seen, failure to do so may result in criminal prosecution, not to mention action by the medical and/or nursing boards.

Tags:  Med Spa Law 

Share |
PermalinkComments (0)
 

California Passes Amendement to New Law That Could Affect Your Med Spa

Posted By Administration, Friday, November 2, 2018

By Brad Adatto, JD, Partner, ByrdAdatto

Do you own or work for a med spa in California? If so, this is important news. Just two months after California passed their new sweeping consumer privacy law, the California Legislature has passed an amendment to the act that was submitted to the Governor on September 12th for signature. The original bill, the California Consumer Privacy Act of 2018 (“Privacy Act”), was signed into law on June the 28, 2018, creating the strongest protections in the nation on collecting and using consumer’s information (please see our previous article here for more details on the Privacy Act). As written, the Privacy Act would require substantial compliance efforts for businesses working with California residents. The amendment makes many changes and clarifications to the Privacy Act, and several will be beneficial to medical practices.

The most beneficial change for medical practices is the Privacy Act now does not apply to health care providers to whom the rules of HIPAA or California’s Confidentiality of Medical Information Act apply, so long as the practices maintain patient information in the same manner as they are required to maintain protected health and medical information. Protected health information and medical information covered under those laws were already exempted in the original law.

A second helpful change for medical practices is that the disclosure to consumers of their rights of deletion no longer needs to be on the website or in the privacy policies. Rather, it now only needs to be “reasonably accessible to consumers.” Previously, this would have necessitated medical practices making major updates to their websites to be compliant.

The amendment also narrows the broad definition of personal information covered by the law. Previously “personal information” included a laundry list of types of information, ranging from biometric data to employment information. Unfortunately, the laundry list still remains, but is limited only to data that is capable of being associated or linked with a particular consumer or household. This is helpful as it exempts aggregated demographic and trend data.

While the Amendment may have eased the burden of compliance for medical practices, it has not removed it. We are hopeful that most of the nuts and bolts compliance concerns will be fully addressed in the Attorney General’s forthcoming rule interpretation. Consistent with the amendment, the AG must release its rule interpretation by July 1, 2020. However, since the Privacy Act itself becomes effective January 1, 2019, medical practices will need to be mindful of how they are treating consumer information before the Privacy Act takes effect. Substantial processes and changes may still needed by medical practices to be compliant.

Brad Adatto, JD, is a partner at ByrdAdatto, a business, healthcare, and aesthetic law firm that practices across the country. He has worked with physicians, physician groups, and other medical service providers in developing ambulatory surgical centers, in-office and freestanding ancillary service facilities, and other medical joint ventures. He regularly counsels clients with respect to federal and state health care regulations that impact investments, transactions, and contract terms, including Medicare fraud and abuse, anti-trust, anti-kickback, anti-referral, and private securities laws.

Tags:  Med Spa Law 

Share |
PermalinkComments (0)
 

Medical Spa Bad Press: Coming to Terms with Compliance

Posted By Administration, Thursday, November 1, 2018

By Alex Thiersch, CEO of the American Med Spa Association

Bad outcomes and patient injuries in medical spas are appearing in more and more headlines across the country. It is evident to many who work in the medical spa industry that there are a number of grey areas in the rules and regulations that govern it, and that certain unscrupulous medical spa owners and operators exploit these inconsistencies while sacrificing quality patient care to make money. Media pieces highlighting these bad actors in the industry are appearing with increasing regularity, and even the Doctor Oz show recently highlighted “Rogue Med Spas” that endanger patient safety. These reports express the industry’s problems to the public and, when the public catches wind of a health issue, you can bet that local, state and federal regulators will need to address it sooner or later.

View the full segment.

See AmSpa’s full statement on the segment here

The days of the medical spa industry being the “wild west” are likely coming to an end. So if your practice is not entirely compliant with your state’s medical statutes, it is certainly in your best interest to identify the ways in which it falls short and address them as soon as possible.

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

The Truth

Stories such as the Doctor Oz report are not positive for the medical spa industry, but they’re not necessarily hatchet jobs, either—many medical spas are, in fact, operating illegally, and untrained, unqualified employees are burning patients with lasers, among other potentially serious violations.

Medical spas and laser centers have become so popular—and so profitable—that some owners and operators rush to open them and, as a result, they are often not properly formed and not compliant with state and local statutes. Traditionally, there has not been a great deal of enforcement of these violations, but this is changing.

Medical spas have become so prevalent that state regulatory agencies simply cannot ignore them anymore. As is seen in the rise of media coverage of these issues, patients who suffer unforeseen outcomes will not hesitate to complain to the media. Personal injury attorneys have also picked up on the trend—you may have noticed television commercials and print ads calling for clients to sue medical spas and laser centers. The story is out there, and it only takes one aggrieved patient to cause a medical spa’s world to come crashing down.

Although it is undeniable that there is a certain level of non-compliance that exists in the medical spa industry, medical spa owners and operators need to be asking themselves how they can start becoming an industry that regulates itself, so that they don’t have these types of continuing issues with state regulators.

Creating Compliance

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

  1. Know the law. While there are grey areas, many answers can be found in state’s practice acts with just a little bit of searching.
  2. Reach out to local health care attorneys for evaluation. Most medical spas only contact a lawyer when they’re already in trouble, not at the front end where the lawyer can help prevent trouble down the road.
  3. Work toward understanding. You goal should be to understand the basic core principles regarding medical practice and realize that, while this is a lucrative industry that is often quite safe, there is still some level of danger.

AmSpa pledges to continue its efforts to educate medical spa owners and operators to make sure that they are operating in compliance with the law. It also aspires to educate the public in order for them to understand the difference between a medical spa that is compliant and one that is not, as well as inform them about what the treatments offered by medical spas actually entail. AmSpa is also pushing for standardization of laser training across the industry—in some states, there are no training requirements, and a lack of proper training can lead to outcomes such as the ones that Doctor Oz aired to the general public.

The industry needs to come together to discuss how it should be regulated, as it is clearly growing and is not going away. There is some guidance in the laws as they are written, but the states do not do a particularly good job in educating the public about what they say and mean. Still, enforcement is ramping up, and medical spa owners and operators must be properly prepared in order to comply and avoid more negative media coverage in the future.

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

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

Share |
PermalinkComments (0)
 

Self-Regulation: Equipment Manufacturers and Training Centers Need to Get on Board

Posted By Administration, Tuesday, October 30, 2018

By Alex Thiersch, CEO of the American Med Spa Association

In this space a couple of weeks ago, I wrote about the need for self-regulation in the medical aesthetic industry. In that piece, I mostly focused on how medical spa owners and operators can help the industry by observing certain standards that AmSpa is helping to develop. However, the need for self-regulation is not limited to practitioners—it extends to equipment and device manufacturers, as well as clinical training facilities.

After an AmSpa Boot Camp or a consultation where I detail the legalities of laser use, for example, I’m often approached by attendees who say, “I was trained by a laser manufacturer, and they didn’t tell me any of this stuff.” What I’ve found is that there are a lot of people out there who give a lot of disparate information and, oftentimes, it’s not accurate and it leads people to believe that they can do things that legally they cannot do.

We at AmSpa have been working very hard since the organization’s inception to educate not only medical spa owners and practitioners, but also the industry as a whole. If everyone knows the laws under which they operate, everyone can be on the same page.

AmSpa works with many laser manufacturers that have listened to us and acted in very responsible ways. However, I’ve also heard countless stories from people who were told by manufacturers or training facilities that they can do something that they plainly cannot, and they feel like that is unfair.

This is not just an AmSpa problem or a medical aesthetic practitioner problem—it is an industry problem. The entire industry need to be on the same page. Every member of the industry needs to buy into the same set of standards, and we all need to be teaching the people who work in the industry the same thing. It makes no sense and does nobody any good to, say, take a long laser course and learn to perform treatments if a practitioner cannot legally administer them.

Therefore, AmSpa is calling on the entire industry—not just medical spa owners and practitioners, but also device manufacturers, drug manufacturers, and training facilities—to start taking compliance seriously, because it’s the only way for the industry to evolve in a positive direction. Everyone wants to succeed and make money, but if the industry is overly regulated due to negative outcomes and people acting in bad faith, it will be extremely difficult for the industry to become better and larger than it already is.

I’m looking forward to discussing self-regulation with everyone at forthcoming AmSpa Boot Camps. We will be in Orlando next week for our final Boot Camp of 2018, and our just-announced 2019 itinerary includes stops in Los Angeles, Chicago, Atlanta, Seattle, Dallas, New York and Orlando. Click here for more information and to sign up for a Boot Camp near you. We’ll also be discussing this matter at the Medical Spa Show in Las Vegas in February 2019. Click here to learn more about this year’s agenda and event … it shouldn’t be missed!

 

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

Share |
PermalinkComments (0)
 

Corporate Practice of Medicine: Living or Dead?

Posted By Administration, Monday, October 29, 2018

By Patrick Armstrong O’Brien, Legal Coordinator, AmSpa

Many states prohibit non-physicians from owning medical practices either directly or through a business entity. This is known as the Corporate Practice of Medicine doctrine, which AmSpa has previously discussed here. The concern these states have with corporate practice of medicine is that the non-physician control will interfere with the physician’s professional judgement in the physician-patient relationship. Whether or not that fear is founded, it has resulted historically in many states forbidding the practice. AmSpa members: To see what your state’s policy is please your state legal summary.

Over time, the practice of medicine has evolved and become more complex and interconnected.  Physicians no longer practice with just a bag and a stethoscope. They render medical services through a team of professionals and specialists who utilize an array of advanced machines. This complexity and interconnectedness has weakened much of the original motivation for the prohibition against medical services being delivered in a corporate structure. Often, these prohibitions are seen more as a hindrance than an aid to effective care. There has been a general trend to move away from or weaken this prohibition. This has taken the form of passing statutes that affirmatively allow corporate practice or remove the restrictions.  

On one end of the spectrum, you have states similar to Alabama, which does not prohibit physicians from being employed by a corporation as long as the physician is free to use his professional judgment in making medical decisions. This is evidenced in their statutes and opinion letters from the attorney general’s office. You also have states such as Idaho where the board of medicine previously adhered to the doctrine. However, in 2016, they affirmatively rejected the doctrine and would no longer discipline their licensees for practicing in a corporate structure. 

On the other end of the spectrum, you have states such as California. The state statutes clearly prohibit the practice of medicine by corporations and the California Medical Board actively polices and enforces it. The California Medical Board even offers a resource page of their website to address the subject. These states and others like them provide medical spas with clear information on the types of business structures permitted.

Other states may have lax or infrequent enforcement of their prohibition. Wisconsin is an example: the state laws clearly prohibits laypersons from employing physicians to provide medical services as outlined in a Wisconsin Attorney General letter available here. However, there appears to be no recent history of enforcement actions for violating this rule. Wisconsin isn’t alone; many other states have infrequent enforcement of their corporate practice rules. This can create a lurking issue for people wanting to open a medical spa.   

Those preparing to enter the medical spa field may look around and see examples in their state of non-physicians hiring on medical directors or partnerships between doctors and non-doctors.  Depending on the state, these arrangements may be completely fine or they may be in violation of that state’s laws. Where there is lax or infrequent enforcement by the state’s attorney general or the medical board, a medical spa may go years without issue. However, the risks still remain.  Future attorney generals or medical board members may change their policies and begin aggressively bringing enforcement actions. Or, if the medical spa or physician is brought to their attention for other reasons, the corporate structure may result in additional penalties or discipline. The improper business structure could be used as a challenge to contracts in disputes among business partners.

Just like you still wear your seatbelt even though you don’t plan to be in a car accident, having the proper corporate structure for a medical spa is important, even if no one has recently gotten in trouble over it. As the aphorism on ounces of prevention goes, taking time to structure your medical spa correctly at the beginning can be good insurance against possible future issues. If you would like to learn more about medical spas business structures and other legal issues please consider attending an upcoming AmSpa Boot Camp or the 2019 Medical Spa Show.

 

Tags:  Med Spa Law  Med Spa Ownership 

Share |
PermalinkComments (0)
 

Trademarks: How to Make Your Mark With Your Med Spa's Name

Posted By Administration, Friday, October 26, 2018

By James M. Stanford, JD, Partner, ByrdAdatto

What’s the first thing most people will know about your med spa? The name! The strategy in naming and branding your business can have a major impact on building goodwill and a contributing factor in the success of your business. You will want to differentiate yourself from your competitors and standout, especially if you’re facing a saturated market place.

Clients frequently seek legal counsel to protect their business’s name and to further understand if their business name may also serve as the basis for a trademark. While a business or trade name is somewhat of a different animal than a trademark from a legal perspective, there are parallels between the two concepts in terms of what strengthens or weakens a business or trade name and a trademark.

Entrepreneurs routinely select very descriptive names for their businesses and trademarks. From a legal protection perspective, however, this can be problematic, as the applicable laws are not designed to protect descriptive or generic names or terms. Stated differently, the names or marks in these instances tend to exactly describe the services or products being provided. For example, you have developed an amazing line of unique and organic cupcakes so you name your business Laura’s Organic Cupcakes or Organic Cupcakes of Texas. If you want protect the name and keep others from using the same or a similar name or mark, these are probably the worst choices for a business name or trademark.

Marks that identify or describe a product or service, are in common use, or are used as geographical indications generally cannot be registered as trademarks and will remain in the public domain for use by anyone. Descriptive trademarks can only be registered if they have acquired distinctiveness after years of continued use and recognition by consumers. Generic terms used to refer to the product or service itself, however, cannot be registered or protected as trademarks.

An entrepreneur should resist the compulsion to describe the goods or services they are offering when selecting a name or trademark. Instead, create a name or mark that is novel and unique. An excellent real-life example of a strong mark consistent with our hypothetical above would be Sprinkles®–a well-known and successful bakery that focuses on cupcakes.

Before you spend a lot of time and money selecting a name or mark for your new business or paying a graphic designer to develop a logo to go with the name, you should speak with experienced legal counsel. Otherwise, you may experience the same frustration many others have faced when they are told their business name or mark can’t be registered or otherwise will be afforded little to no protection.

For more ideas on how to build a profitable and legally compliant medical spa attend an AmSpa Medical Spa & Aesthetic Boot Camp and be the next med spa success story.

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

Tags:  Business and Financials  Med Spa Law  Med Spa Ownership 

Share |
PermalinkComments (0)
 
Page 10 of 17
 |<   <<   <  5  |  6  |  7  |  8  |  9  |  10  |  11  |  12  |  13  |  14  |  15  >   >>   >| 
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: