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Arizona Moves to Re-open

Posted By Administration, Thursday, May 7, 2020

treatment

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

Arizona has begun the phased processes of re-opening businesses starting this week. An executive order issued on Monday, May 4, by Governor Doug Ducey (available here), allowed many retail businesses to resume operations that day. Barbers and cosmetologists will be able to resume operations starting on Friday, May 8, provided they implement a number of safety measures. They will need to:

  1. Provide face coverings to both employees and customers;
  2. Operate by appointment only; and
  3. Follow protocols as directed by the CDC, OSHA and Arizona’s Department of Health Services.

For medical spas that may offer cosmetology services alongside medical procedures, there is an additional level of restriction. There is a general prohibition on elective medical procedures that is currently in effect. In an April 22 executive order, this restriction was relaxed slightly by providing a path to get a waiver. Medical offices that want to perform elective procedures will need to apply for the waiver from the Department of Health Services. This FAQ from the department provides additional information on the process and a link to the application.

Getting the green light from the governor to re-open is just the first step to planning your medical spa’s re-opening. We discuss a number of other issues you will want to consider in our Re-opening Toolkit for Medical Spas podcast, available here.  AmSpa has also provided a Re-opening Checklist and Toolkit for Medical Spas that you may find helpful. AmSpa will endeavor to bring you the most up to date information as states begin to re-open.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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UPDATE: Texas Re-opening Salons & Barbershops on Friday

Posted By Administration, Wednesday, May 6, 2020

open sign

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

In a press conference Tuesday afternoon, Texas Governor Greg Abbott released a new executive order that further relaxes COVID-19-related restrictions and allows additional businesses to re-open; you can read the new order in its entirety here. We previously covered the phase-one lifting of restrictions here; we also cautioned our members about some issues they may encounter with re-opening here.

Starting Friday, May 8, spas, salons and barbershops will be able to re-open and provide services. The order includes all establishments where licensed cosmetologists and barbers are able to practice their trade. The order, however, specifically excludes massage establishments, tattoo studios and piercing studios. Those businesses are required to remain closed.

The order does place a restriction on the spa and salon operation: A space of at least six feet must be maintained between workstations. While the order doesn’t require it, salon operators may want to consider implementing some of the sanitation and infection control policies we discuss in our Re-opening Toolkit for Medical Spas podcast, available here. AmSpa has also provided a re-opening Checklist and Toolkit for Medical Spas, which may also prove useful to traditional salons. AmSpa will endeavor to bring you the most up-to-date information as states begin to re-open.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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PPP Update: What If I Can’t Re-hire an Employee?

Posted By Administration, Wednesday, May 6, 2020

budgeting with a face mask

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

 The U.S. Department of the Treasury has published some additional guidance on rehiring employees and loan forgiveness for borrowers of the Paycheck Protection Program (PPP). In what has become almost a daily occurrence, the FAQ on the Treasury’s website is updated with additional answers—you can read it here. Many of the answers are to technical questions for lenders or to help clarify eligibility for larger businesses. However, several answers address core issues and uncertainties that small business owners have with this unusual lending program.

Today, I want to draw your attention to question 40. This question asks if the forgiveness of the PPP loan will be affected if the employer has attempted to rehire an employee, but the employee refuses to come back. This is a very real concern—employees may be reluctant to return due to fears or concerns about COVID-19, or because they are making more on unemployment. Under the Coronavirus Aid, Relief and Economic Security (CARES) Act, which created the PPP, the amount of loan forgiveness is directly reduced by the ratio of employees you retain; this means that for a four-person office, for example, the forgiveness amount would be reduced by 25% if one of the people didn’t come back.

The answer to question 40 provides some relief to employers in these difficult situations. It states that loan forgiveness will not be affected by that calculation if the employer follows certain steps in making the rehire offer. The offer must be made in writing and provide the employee the same salary and number of hours. The employer also must document the employees’ rejection of that offer of re-employment.

The answer also highlighted two important caveats:

  1. This policy in this answer will be formalized into a rule. So, the specific steps and documentation needed to qualify for this may be different from the language used in the FAQ.
  2. In most states, if the employee rejects an offer of re-employment, they may forfeit their right to unemployment compensation.

Everything with the COVID-19 pandemic has been evolving extremely rapidly, and the PPP and other relief measures are no different. AmSpa has gathered a number of resources to help our members through this time in our Coronavirus Resource Center, as well as put together a Re-Opening Checklist and Toolkit. We are also offering a Live Online Cadaver Training this Thursday (registration here) to help expand your skills as you prepare to re-open.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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FAQ for Re-opening During COVID-19

Posted By Administration, Tuesday, May 5, 2020

person asking question

By AmSpa & ByrdAdatto

Patient Protocol

Q: Do I need to require all patients to wear masks?

A: It is crucial that you follow state and local rules, so first review any requirements from your state and local governments, as well as any guidance from your medical and nursing boards, to determine whether your patients are required to wear masks. Always review CDC guidelines for guidance, as well. If masks are not required, each medical spa will need to make its own judgement call. Keep in mind that people infected with COVID-19 can be contagious for up to 14 days before experiencing symptoms and some are asymptomatic. So, while pre-screening and taking temperatures will reduce the chance of treating a contagious patient, it will not entirely remove it. Likewise, staff members may unknowingly be contagious. Therefore, it is prudent to ask that patients wear masks to the extent possible as long as they are in the facility.

Q: What are the basic protocols for patients entering your office (e.g. text them when you’re ready to see them, give them a mask, etc.)?

A: Protocols need to be set in accordance with your own circumstances. Factors include your geographic area, the size of your space, the infection rate in your locality and others. In general, the time the patient spends in the facility and the number of people they interact with should be minimized, and all necessary steps should be taken to ensure a sanitized environment and as little interaction as possible. Following are some ideas for protocols.

  • Contact patients 24 hours prior to their appointments to screen for exposure and symptoms.
  • Have patients wait in their car, receive a text message from you and be met at the door for their appointment.
  • Before permitting a patient to enter the facility, take their temperature and implement a screening process.
  • Provide face coverings and hand sanitizer.
  • Lead patients directly to a treatment room, as opposed to your waiting room.
  • Prohibit guests or family from accompanying the patient.
  • Take payment over the phone to avoid close contact.
  • Ensure proper distancing during check-in and check-out.
  • Space appointments to ensure adequate time for disinfection between patients.

Q: Are there specific things I should do to disinfect treatment rooms?

A: Use an EPA-approved disinfectant for cleaning all surfaces that come into contact with patients, including these areas, at a minimum:

  • Beds and chairs;
  • Doorknobs;
  • Light switches;
  • Railings;
  • Tablets;
  • Credit card machines;
  • Bathroom fixtures;
  • Counters;
  • Handheld mirrors; and
  • Pens.

Disinfection procedures should be implemented after every patient visit.

Q: Should I take every patient’s temperature before they come into the office?

A: Protocols need to be set in accordance with your medical spa’s circumstances. Factors include your geographic area, the size of your space, the infection rate in your locality and others. If you wish to take patients’ temperatures, do so in accordance with a general wellness screening (including symptoms, contact with others, etc.). However, keep in mind that it is possible to have COVID-19 and not have a fever (or any other symptoms). Be sure to disinfect thermometer between uses.

Q: Should I require every patient to be tested before treatment?

A: Protocols need to be set in accordance with your medical spa’s circumstances. Factors include your geographic area, the size of your space, the infection rate in your locality and others. While testing for COVID-19 may provide an extra level of verification, the tests that are currently available are not 100% accurate, take some time to return results, and may be in short supply. Additionally, the time between having the test and their appointment provides a window for infection. It is better to screen for obvious signs of infection and to treat all patients as potentially infectious.

Q: Should I test patients myself?

A: This is up to every medical practice individually, but AmSpa generally does not recommend that medical spas provide testing for its patients. In addition to the reasons above, providing the test yourself can potentially create a duty to treat the patient for COVID-19 if they test positive.

Q: If I decide to test my patients, where do I get tests?

A: Availability is changing rapidly—the types of tests are changing and FDA approval is changing. Your medical supplier should be able to provide them for you, given that they are available when you order.

Q: If I do test patients, how do I protect myself, given that some tests have false negatives/positives?

A: See above—this is one reason why administering testing is not advised.

Q: What should I tell my patients? I don’t want to open myself up to liability, but I want them to feel comfortable.

A: Simply explain all the measures that you are actually taking to protect your staff and your patients. Don’t make any promises—just list the facts. Don’t say you’re doing something you’re not.

Q: What should be included in the COVID-19 consent? What other consents are needed?

A: AmSpa provides an example of a COVID-19 consent in its Re-opening Toolkit for Medical Spas. In general, the consent should cover known risks of contracting the virus, address possible outcomes of the illness, and acknowledge that, although you’re making your best efforts to reduce the chance of infection, the chance of infection is not eliminated.

Q: Am I setting myself up for liability if I take protective action, but people get sick anyway?

A: You are more liable if you do not act within the accepted standard of care to avoid infection.

Q: Do all these protocols need to be in writing? If so, where do I get them?

A: Yes, all policies and protocols you implement in your facility should be in writing and reviewed and updated on a regular basis. In some cases, minutes from a staff meeting may suffice; in others, more detailed guidelines may be needed. Make sure that your actual practices match what your written practices say. AmSpa provides a number of protocol examples you can base yours on in its Re-opening Toolkit for Medical Spas.

Treatments

Q: What types of treatments should I offer under the circumstances?

A: Protocols need to be set in accordance with your medical spa’s circumstances, including determining which treatments to offer and which treatments, if any, to withhold. Factors include your geographic area, the size of your space, the infection rate in your locality and others. As you do a phased re-opening, you may wish to temporarily limit your services to account for demand, staffing concerns, supply issues and cleaning requirements. In general, treat every patient as if they are positive for COVID-19 and make adjustments accordingly.

Q: Are there any treatments I should not offer—e.g. should I avoid lip fillers or treatments around the mouth, or water-based facials because they spray fluids everywhere?

A: AmSpa is not aware of any non-surgical medical procedures that increase the spread of COVID-19 more than others. It does not appear that COVID-19 can be spread solely from the skin. However, any virus that has landed on the skin may be transferred to other surfaces or become airborne if blown off. It is unknown if any treatments can do this, but it may be prudent to take precautions as if they do. The employee providing treatment should wear face-, eye- and splatter protection while performing the procedure. Note that certain invasive procedures do increase the risk of spread (intubating patients, surgery, etc.).

Q: What about laser treatments that produce a plume of gas/material? Are they dangerous?

A: There is no evidence that COVID-19 can be spread in this manner. However, any virus that has landed on the skin could be transferred to other surfaces or become airborne if blown off. It is unknown if the surgical smoke plume from laser treatments can do this, but it may be prudent to use a surgical smoke evacuator to filter the plume and for the employee to use face and eye protection while performing the procedure.

Q: How do I determine what treatments to offer? If patients are wearing masks, should I avoid certain treatments?

A: To the extent possible, the patient should keep their mask on. It should only be moved or removed for the minimum time needed to render treatment and then replaced.

Employees

Q: What types of PPE should I require my employees to wear?

A: Protocols need to be set in accordance with your own circumstances. Factors include your geographic area, the size of your space, the infection rate in your locality and others. Consider the following when making this decision:

  • What does my state and/or licensing body mandate?
  • What does my staff want to wear?
  • What do I have access to?
  • What does the CDC recommend?
  • What’s the status of the community I serve? Am I serving a hotspot, or are there minimal cases in my community?
  • What do OSHA guidelines say?

Q: Do my staff members need to wear masks?

A: See above for additional considerations.  A face covering on each employee provides an additional level of protection to your staff and patients beyond cleaning and hygiene practices.

Q: Do I test my employees? How often?

A: Protocols need to be set in accordance with your medical spa’s circumstances. Factors include your geographic area, the size of your space, the infection rate in your locality and others. In general, there is no requirement to test all your employees. However, if an employee has symptoms or a known exposure, you should refer them to their primary care physician or a local testing site. If they are positive, let your team know without disclosing the identity of the staff member.

Q: What if an employee doesn’t want to return to work? What if they don’t feel safe, even though the state has allowed medical spas to open and we have safety protocols in place?

A: You may want to have a conversation with the person to better understand their concerns and address the steps you have taken to see if a compromise can be reached. If they were laid off during the shutdown, they are under no obligation to return, and you are under no obligation to re-hire them. If they were furloughed or given temporary leave, you should consult with an attorney or a human resources professional to discuss the next steps that need to be taken. You will also need to determine if the American with Disabilities Act applies in your situation.

Q: Should we make our employees sign a consent form or put language in our handbook regarding COVID-19? 

A: It is a good practice to have employees acknowledge in writing that they have been informed of your policies and procedures and the training you provide.

Q: Should we make employees change out of scrubs before they leave and change whenever they come in?

A: This requirement would be more in line with hospital staff who are treating COVID-19 patients. This is likely not necessary in a medical spa setting, but discuss it with your employees to gauge their level of comfort.

Q: Can we require this scrubs policy in an employee contract or handbook?

A: New policies and procedures can be added to the employee handbook according to its amendment policy, but any employment contract changes must be mutually agreed on.

Q: Should I reconfigure my office to ensure employees and patients aren’t within six feet of one another? 

A: Yes, you will want to organize your office and adjust your scheduling to minimize person-to-person contact and locations and surfaces the patient touches or goes near. Maintaining six feet of separation would be ideal, if it’s feasible in your facility. Require that patients do not bring visitors with them to lessen crowding.

General Questions

Q: What do I do when state orders conflict with local orders?

A: This will depend on the specific language found in the state order. The state order can set either:

  • The maximum level, and the local order cannot be more restrictive; or
  • The minimum level where, between state and local, the most restrictive would apply.

Q: What resources are out there to find consent forms and protocols?

A: AmSpa provides resources for consents and protocols in its Re-opening Toolkit for Medical Spas. Additionally, both the CDC and OSHA maintain websites with multiple resources.

Q: If patients say they don’t care about COVID-19 and want to be treated anyway, what do I do?

A: The patient’s personal opinion should not affect your processes and does not affect your liability. The pre-appointment screening should still take place, infection mitigation and sterilization procedures should still be exercised, and the patient must still give informed consent. Ultimately, it is your option to accept them as a patient, and you may choose not to if you feel they would put your staff or other patients at undue risk.

Q: What postings should I have on my clinic’s walls and website?

A: Communicate any changes to your processes and things patients need to know before they arrive, limits on your services, etc. People appreciate the communication. If you require anything of the patient, such as wearing a face mask, let them know prior to their visit—preferably when they are scheduling their appointment.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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Florida Begins Re-opening

Posted By Administration, Tuesday, May 5, 2020

florida capitol

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

 Last week, Florida Governor Ron DeSantis signed an executive order that begins the state’s re-opening process. You can read Executive Order 20-112 in full here; it became effective on Monday, May 4. The order will allow elective surgeries and procedures to take place; however, this does come with some restrictions.

Elective procedures are allowed in hospital ambulatory surgical centers, office surgery centers, dental offices, orthodontic offices, endodontic offices or other health care practitioners' offices, provided:

  • The facility has the capacity to immediately convert surgical and intensive care beds over to treating COVID-19 cases in the event of a surge;
  • The facility has adequate personal protective equipment (PPE) to complete all medical procedures and to respond to COVID-19 cases without seeking federal or state assistance in obtaining PPE;
  • The facility has not sought any additional federal, state or local PPE assistance since resuming elective surgeries; and
  • The facility has not refused to provide support to engage with skilled nursing facilities, assisted living facilities and other long-term care residential providers.

It should be noted that this executive order does not apply to non-medical personal services such as cosmetology salons or barbershops. Those businesses must remain closed, and, so far, there is no timeline for their reopening. Additionally, to the extent that retail, food service and other businesses are permitted to open, there are exceptions for Miami-Dade, Broward and Palm Beach counties. Those three counties remain under restrictions.

If you are a Florida-based medical spa or aesthetic practice, you will want to carefully review the language of the order before you consider opening. As the order only allows for elective medical procedures and not salons, you may receive unwanted media attention or complaints from other businesses who feel you should not be open regardless of what your legal situation is. You also may need to restrict or alter your regular menu of services during this period.

AmSpa has provided a re-opening checklist, the Re-opening Toolkit for Medical Spas and webinars to assist you in opening back up. We will continue to update you on the evolving COVID-19 issues and their impact on your practice.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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AmSpa Advises Texas Medical Spas to Be Cautious When Considering Re-opening

Posted By Administration, Monday, May 4, 2020

surgical gloves

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

As of Friday, it is technically legal for medical spas in Texas to open; however, there is real risk in doing so at this point in time.

AmSpa has received word from sources that some in the government may not be able to distinguish “spas”—which cannot open—from “medical spas.” As such, even though medical spas can open legally, there is risk that someone—either in the media, the government or the public—does not understand the difference and will report them. Several plastic surgeons are taking the stance that they can open their surgery practice, but not their medical spas.

While a medical spa trying to re-open is on solid ground from a legal standpoint, this is not an environment where you want to be investigated or attract public attention for doing something that might appear to be wrong, even though it is not. Perception is reality.

AmSpa’s advice is that medical spas in Texas and other states that are beginning to re-open need to consider the potential risk of investigation or negative publicity. The Occupational Safety and Health Administration has already received thousands of complaints. The public is watching closely. Competitors who may not believe they can open are watching. All are potential complainants.

The bottom line is that we are very confident that under the reading of the most recent order, medical spas, which are certainly medical facilities, can open. But, unfortunately, it is not so simple.

Also, it is important to note that laser centers that offer laser hair removal do not qualify as medical facilities and therefore cannot open.

Finally, even though you can open as a medical spa, you cannot offer spa or salon services yet. So, no facials, HydraFacials, chemical peels, etc.—those are forbidden.

Information about these orders is still developing, and AmSpa and ByrdAdatto are covering the situation in as timely a manner as possible. Check out the webinars and podcasts that have been posted regarding this matter, and stay tuned for more as soon as we uncover additional information.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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ALERT: Texas Issues New COVID-19 Rules

Posted By Administration, Friday, May 1, 2020

texas state capitol building

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

The Texas Medical Board has adopted emergency rules that set the standards of minimum safe practice for in-person physician encounters. These rules were released Thursday evening in advance of phase one of the governor’s re-opening plan, which we covered here. Physicians will be able to begin seeing patients for non-urgent procedures starting today. It will be considered unprofessional conduct to not practice according to the minimum standards contained in the rule. The rule also requires that the physician post a notice of the minimum standards in each public area and treatment room of the office.

The minimum standards are:

  1. A mask must be worn by both the patient and physician or the physician’s delegate when in proximity of the patient (meaning less than a six-foot distance between the patient and the physician or the physician’s delegate);
  2. Follow policies the physician, medical and health care practice or facility has in place regarding COVID-19 screening and testing and/or screening patients;
  3. That, before any encounter, patients must be screened for potential symptoms of COVID-19 or verified previously screened within last 20 days; and 
  4. That prior to care involving a medical procedure or surgery on the mucous membranes, including the respiratory tract, with a high risk of aerosol transmission, the minimum safety equipment used by a physician or physician’s delegate should include N95 masks or an equivalent protection from aerosolized particles, and face shields.

You can read the emergency rule in full here. Additionally, we have provided a sample COVID-19 Notice (see here) you can post in the public areas and treatment rooms of your office. We know that restarting your business can be a daunting task, and to help, we have created a Re-opening Checklist and Toolkit for Medical Spas, which is available here. We also held a webinar on re-opening on Thursday, a recording of which will be available soon here.

Tags:  COVID-19  Med Spa Law  Med Spa Trends 

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Oklahoma Osteopathy Board Adopts New Medical Spa Guidelines

Posted By Administration, Monday, April 27, 2020

delegation

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

In late March, the Oklahoma State Board of Osteopathic Examiners adopted a new position statement for medical spas and aesthetic procedures; presently, it is expected to become effective on May 12. Many aspects of these new guidelines restate core tenants of medical practices. However, they also go further and provide guidelines and restrictions regarding what sort of procedures are appropriate to delegate to certain health care professionals. This marks a departure from the present landscape for aesthetic practices in Oklahoma, so you may want to take some time to familiarize yourself with the changes. You can view the guidelines at this link.

As previously alluded to, these new guidelines primarily change to whom the doctors of osteopathy (DO) can delegate in an aesthetic medical setting. Under these rules, the DO is limited to delegating laser and prescriptive device procedures to advanced practice nurses (APNs), physician assistants (PA) and registered nurses. Other licensed professionals—such as licensed practical nurses (LPNs), certified micropigmentologists and cosmetologists—are limited to acting only within their licensed scope of practice. DOs are prohibited from using unlicensed medical assistants (MAs) to provide any medical treatments in these settings. Under current rules, physicians have leeway to delegate procedures to LPNs and MAs, provided they have sufficient training in the devices and the physician examines the patient, prescribes the treatment and provides appropriate oversight and support. (For details on current delegation rules, AmSpa members can view their state legal summary.)

The other provisions of these guidelines are not new information and reiterate concepts we frequently stress here at AmSpa. Primarily, aesthetic medical procedures are still the practice of medicine, and the independent practitioner who prescribes the treatment (a physician, in this case) is responsible for the patient’s safety. The physician/patient relationship exists in the medical spa settings as it does in traditional office settings. As such, the physician is responsible for obtaining informed consent, formulating a treatment plan, ensuring follow-up care and properly documenting the patient’s medical records.

It should be stressed that these guidelines are just a board policy—they are not a formal administrative rule or a law. However, they do provide insight into what the board considers the current standard of practice and how they would investigate cases in the event of a board complaint. It should also be noted that these guidelines only apply to DOs in aesthetic practices, as medical doctors (MDs) and PAs are governed by the Oklahoma Medical Board and APNs, RNs and LPNs by the Oklahoma Board of Nursing. It remains to be seen if the other licensing boards adopt similar requirements; if they do not, there will be a disconnect between MD medical directors and DO medical directors, with the latter far more restricted in their ability to delegate procedures.

These guidelines are set to become effective on May 12; many Oklahoma medical spas may be reopening by that time and will need to review their delegation and supervision procedures as appropriate. AmSpa has created a Re-opening Checklist and Toolkit to aid medical spas as they begin to re-open.

Tags:  Med Spa Law  Med Spa Trends 

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Texas Medical Board Issues Emergency Rule Relating to Executive Order GA 15

Posted By Administration, Wednesday, April 22, 2020

surgical gloves

By Courtney P. Cowan, JD, ByrdAdatto

Physicians in Texas are anxiously waiting to learn whether the Texas Medical Board (TMB) would clear up confusion from Executive Order GA 15, which suggests the loosening of restrictions for elective procedures. On April 21, 2020, the TMB released its newest Emergency Rule and FAQs regarding Executive Order GA 15. It confirmed that restrictions on non-essential or elective procedures in Texas have been reduced, but not to the extent that many medical providers were hoping. The TMB mandates that non-urgent, elective inpatient, outpatient and office-based surgeries and procedures must be postponed, unless the surgery or procedure meets one of the exceptions set forth in Executive Order GA 15, which allow hospital surgeries and licensed surgery center surgeries if certain factors are met.

Many physicians, however, will be frustrated to learn that office-based surgeries appear to continue to be prohibited, as they are not included in the new exceptions. The omission of office-based surgery suites is nuanced. Many surgery suites are certified by the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF), an independent certifying body. Executive Order GA 15 and the TMB seem to limit the exception to ambulatory surgery centers as defined by Texas law and as governed by Texas Health and Human Services. It is unclear why office-based surgery suites were excluded, as the spirit of the new order seemed to focus on preserving hospital capacity and personal protective equipment (PPE). Nevertheless, the following paragraphs contain the specifics from Executive Order GA 15 and the TMB.

Executive Order GA 15, April, 17, 2020, states that the restrictions on non-essential or emergency (e.g. elective) procedures have been loosened only where:

  1. The procedure, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the PPE needed to cope with COVID-19; or
  2. A surgery or procedure is performed in a licensed health care facility that has certified in writing to Texas Health and Human Service Commission (THHSC) both that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients, and that it will not request any PPE from any public source—whether federal, state, or local—for the duration of the COVID-19 disaster.

These exceptions are effective at 11:59pm on April 21, 2020, and will continue through 11:59pm on May 8, 2020.

On April 21, 2020, the TMB passed the above-mentioned Emergency Rules to enforce Governor Abbot’s Executive Order GA-15, as well as to provide clarification for the exceptions to non-urgent elective surgeries. The TMB states that any non-urgent elective inpatient, outpatient, and office-based surgeries and procedures should be rescheduled, unless the physician determines that the surgery or procedure cannot be postponed. Office-based visits that do not include surgeries or procedures may continue without prohibition, so long as the visits are conducted in accordance with standard protocols, including safety measures that prevent the spread of COVID-19.

With that said, elective surgeries may resume at a licensed facility, such as an ambulatory surgery center or hospital, at 11:59 pm on April 21, so long as the licensed health care facility certifies the above in writing to the THHSC. If you intend to perform surgeries from April 22 (practically speaking) through May 8, then you will want to send a written correspondence to the THHSC as soon as possible. The contents of the certification must be drafted as follows:

  • Be on the licensed health care facility’s letterhead;
  • Be addressed to:
    • Health Facility Licensing Certification Coordinator
      Health and Human Services Commission
      Health Facility Licensing – MC 1868
      P.O. Box 149347
      Austin, Texas 78714-9347
  • Reference the facility’s name, license type and license number in the subject line;
  • Identify by name the facility’s administrator, director or other individual with authority to bind the facility;
  • Include the following language:
    • I certify, on behalf of [name of licensed health care facility], that this facility will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
    • I certify, on behalf of [name of licensed health care facility], that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
  • Not limit or qualify the required certification language in any way;
  • Be signed by the facility’s administrator, director or other individual with authority to bind the facility, and identified above; and
  • Be submitted to the Health and Human Services Commission via email to HFLCertificationCoordinator@hhsc.state.tx.us.

A licensed health care facility that submits a certification with the required elements, as described above, will receive an acknowledgment via e-mail from the THHSC.

As a final thought, the Governor’s office will continue to update the “reopened services” list with additional businesses and information through additional executive orders.  We will continue to monitor this issue for any clarification or further orders that may affect you.

AmSpa members receive a complimentary 20-minute Introductory Compliance Assessment with a ByrdAdatto attorney. Click here to learn how to join AmSpa today!

As the daughter of a periodontist, Courtney P. Cowan has been fascinated by the health care field since childhood. She often accompanied her father to his office, where she developed an appreciation for physicians and their respective practices. Having absolutely none of the dexterity that is required to be a surgeon, however, Cowan instead decided to pursue a degree in business while attending Baylor University. It wasn’t until she was required to take a business law course that she discovered her passion for the law. After graduating from Southern Methodist University Dedman School of Law, Cowan serendipitously connected with ByrdAdatto and now assists clients by combining her business background with her enthusiasm for health care and the law.

Tags:  Business and Financials  ByrdAdatto  COVID-19  Med Spa Law 

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Does New Texas Executive Order Let Med Spas Re-open?

Posted By Administration, Tuesday, April 21, 2020

texas capitol

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

The short answer is: not yet. Last Friday, Texas Governor Greg Abbott issued two new executive orders relaxing some of the restrictions put in place due to the COVID-19 pandemic; you can read the press release and the orders here. As part of Executive Order GA-15 some, restrictions on performing elective surgeries have been relaxed starting at midnight on April 21. Unfortunately, office-based procedures such as those typically provided by medical spas are still under the general restriction, which currently expires at 11:59 pm on May 8.

To see why this is the case, we must look at the language of the order. Much like the prior order (see here), this order generally prohibits all surgeries and procedures in all settings unless they are to correct a serious medical condition, prevent serious adverse consequences or preserve the life of the patient. Clearly, most medical spa procedures are not going to meet that exception’s high bar.

The current executive order adds two more specific exceptions. The first allows for procedures to be performed, provided that when done according to the accepted standard of clinical practice, the procedure does not deplete hospital capacity or needed personal protective equipment (PPE); the second allows licensed health care facilities to perform surgeries and procedures as long as they reserve 25% of their capacity for COVID-19 patients and they certify that they will not request any PPE from any public source, whether state or federal, during this pandemic. The first exception likely will not apply to many, if any aesthetic procedures, simply because some PPE will need to be used to limit the risk of infection. The second exception does allow for aesthetic procedures, but they must be performed in a state licensed facility; a medical spa or physician’s office does not meet that requirement.

The Texas Medical Board’s guidance on these new rules (available here) reinforces this distinction. As of right now, office-based surgeries and procedures are still prohibited. The current restrictions expire on the May 8, unless they are extended or revoked. While Texas is an early mover, many states are beginning to take steps to re-open their economies and ease restrictions. AmSpa will be offering resources in the coming days to prepare you for this transition.

Tags:  Business and Financials  COVID-19  Med Spa Law 

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