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Is It Legal to Practice as a Medical Aesthetician?

Posted By Administration, Monday, January 6, 2020

aesthetician

By Sam Pondrom, JD, Associate, ByrdAdatto

Fake or Real: I am licensed as a medical aesthetician.

Fake! Aestheticians must practice within the state-promulgated scope of practice and only use titles authorized by their license.

To determine their scope of practice, an aesthetician should look to three places:

  1. The state laws defining aestheticians’ scopes of practice;
  2. Any rulings or opinions issued by the aesthetician’s licensing board addressing scope of practice or ability to accept delegation from medical practitioners; and
  3. As it pertains to medical services, the supervision and delegation rules applicable to physicians.

The confusion about the existence of medical aestheticians arises from situations where state-licensed aestheticians have obtained additional education, training, certification and experience, or “competence.” These aestheticians who have sought out and acquired additional competence often believe that they have expanded their scope of practice, meaning they may:

  • Perform tasks or accept delegated tasks normally outside of their scope of practice; and/or
  • Perform delegated tasks with less supervision than a standard aesthetician.

However, this is not necessarily true.

The most important thing to understand about aestheticians is that they are creatures of state law. They must obtain a license from the state(s) in which they practice, typically from the state board of cosmetology. These state cosmetology boards have promulgated regulations and rules that determine licensure requirements, scopes of practice and approved titles. The aesthetician license issued by a state board only allows aestheticians to perform work within the prescribed scope of practice and use the approved title. By designating oneself a medical aesthetician, an aesthetician can be viewed as unilaterally expanding their scope of practice or adopting a new title—or both. These actions may subject an aesthetician to disciplinary action from the cosmetology board.

Complicating this further is that state cosmetology boards have no jurisdiction over the practice of medicine. By adding the term “medical,” aestheticians create another issue for themselves with state medical boards. Generally, when state law defines the practice of medicine with the goal of reserving that practice to appropriately licensed persons such as physicians, they include language protecting the use of titles and descriptors that would lead the general public to believe a person is licensed to practice medicine. Thus, if an aesthetician describes themselves as a medical aesthetician or expands their scope of practice to include services considered the practice of medicine—or both—they may be violating their state’s prohibition on practicing medicine without a license.

Often, we find aestheticians have spent their own time and money on courses that purport to train them to be medical aestheticians, but it is important to consider the source of the training. A quick Google search for “medical aesthetician course” returns many results. But if you look at the course information provided by a company offering medical esthetician classes, you almost always will find some variation of a disclaimer that says aestheticians must look to the law of the state that licensed them for the rules and regulations on their practice.  This means that regardless of what the coursework purports to teach (e.g. lasers, injectables, dermabrasion, etc.), you can only perform the functions allowed by your state’s laws.

We do want to clarify that the point of this post is not to discourage aestheticians—or any licensees—from obtaining education, training and certification to expand their knowledge base. Rather, aestheticians must take the time to fully understand their scope of practice and ability to accept delegated medical services before investing time and money on medical aesthetician classes. Moreover, aestheticians must understand that by advertising themselves as medical aestheticians, they can expose themselves to some level of additional risk.

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 youngest of three brothers, Sam Pondrom learned early on how to work effectively as part of a team. After graduating from Oklahoma State, an intrinsic sense of curiosity and a keen eye for details led Sam to work as an accountant for two Engineering-News Record top 40 construction firms. It was here where he honed his ability to analyze complex issues and craft clear, concise answers. Sam utilizes these skills to work in partnership with our clients to resolve their complex business and regulatory concerns in the most simple, straightforward way.

Tags:  ByrdAdatto  Med Spa Law 

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Marketing vs. Laws: Tips That Might Land You in Hot Water

Posted By Administration, Friday, January 3, 2020

marketing

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

In the medical aesthetic industry, marketing is a bit more difficult than in other retail segments. It might seem to make sense for a medical aesthetic facility, medical spa or laser clinic to invest in a flashy ad campaign, complete with lavish praise from patients and offers of discounts; however, going down this path may attract the attention of not only prospective clients, but also state regulators. Here are some ways medical aesthetic practices get in trouble with their marketing efforts, as well as some ways to conduct compliant advertising campaigns.

Understanding the Rules

Even though medical aesthetic businesses tend to engage in the same marketing techniques as other retail businesses—including websites, social media and print advertising—it is important that their owners and operators remember that these practices are, above all, medical practices. And because they are medical in nature, they are subject to the same rules and regulations that govern other, more traditional medical institutions, such as doctor’s offices and hospitals.

Because of this, the ways that a medical aesthetic practice can advertise are very restrictive. The specifics of these restrictions vary from state to state, but they all tend to revolve around the notion that medical care is something that people need rather than choose to indulge in, so any advertising for medical facilities should deal only in facts.

This idea was obviously conceived with traditional medical outlets in mind. For them, the practice of medicine should not be about making money—it should be treating patients in need in their best interest. With this idea in mind, an advertisement for a physician’s services is expected to convey that the physician is an MD, highlight his or her specializations and board certifications, and reveal his or her pricing in an honest and straightforward manner. Furthermore, physicians cannot make grandiose claims of life-changing results or claims of professional superiority—they must only deal in facts.

Of course, medical aesthetic practices are not traditional medical practices, and these somewhat high-minded ideals would seem to run counter to their goals. Medical aesthetic practices deal exclusively in elective procedures and, therefore, may be tempted to make certain claims in order to convince people to choose them over their competitors. However, because medical aesthetic practices are medical practices (it is right there in the name), they must still abide by the rules that govern medical advertising—they must be totally honest.

  • They must specify who is performing medical treatments and what their qualifications are;
  • They must present their pricing in a straightforward manner; and
  • They must not attempt to compare themselves to competitors.

Therefore, if a medical aesthetic practice’s advertising includes words such as “best,” “greatest” or “amazing,” that facility is likely in violation of its state’s medical advertising statutes. A medical spa may operate like a retail outlet, but it cannot advertise itself like one.

Another thing to keep in mind is that if a practice is owned or co-owned by someone who is not a physician—a nurse, nurse practitioner, or entrepreneur, for example—it must make clear in its advertising that it is a physician who is advertising for medical services. For example, if a salon owner contracts with a physician to administer Botox treatments at his or her facility, the salon cannot advertise that it is offering Botox injections—it must specify that the physician is providing that service.

Websites are typically where issues regarding these types of distinctions are found. Many medical aesthetic practice websites state that their treatments are provided by “licensed laser technicians” or “medical aestheticians.” Unfortunately, in most states there are no actual laser certifications, and under no circumstances is any aesthetician permitted to perform medical procedures. The presence of titles such as these on a practice’s website implies that the facility is not structured properly, and it calls into question the credibility of the physician or physicians who are supposed to be overseeing the medical aspects of the practice.

Employees of state regulatory agencies—which are almost always underfunded and understaffed—often simply browse the websites of medical aesthetic practices to determine which of these businesses should be investigated. Using terms such as the ones mentioned above on your website is a good way to attract unwanted attention from regulators, regardless of whether or not your employee swears that he or she is a medical aesthetician. If you distribute advertising materials using these titles, whether online or via other channels, your chances of being investigated are better still.

If a practice is found to be in violation of state regulations regarding medical advertising, it can incur severe financial penalties, and its physicians may even be subject to the suspension or revocation of their licenses. Regulatory agencies take issues such as these—which can rise to the level of “practicing medicine without a license”—extremely seriously.

The bottom line for owners and operators of medical aesthetic practices is that their advertising is under a great deal of scrutiny—far more than they may think. The requirements for medical advertising vary from state to state, so it is important to consult a health care attorney who is familiar with the regulations that govern medical advertising in your state before launching a marketing campaign in order to learn what is and is not legal. (Author’s note: AmSpa works with ByrdAdatto, a national law firm that focuses on medical aesthetic legalities, and as a member, you receive a discount off of your initial consultation, along with a number of other great benefits.)

How to Use Testimonials

If a patient of your medical aesthetic practice is over the moon about an experience there, you may be inclined to ask him or her to provide a testimonial that can be used for marketing purposes. However, there are limitations to the ways in which patient testimonials can be used in advertising for health care providers and, for reasons we’ve previously discussed, medical aesthetic practices must also abide by those rules.

Generally speaking, most states forbid hyperbolic testimonials that use statements such as, “Dr. Brown is the best doctor in the city!” As previously established, advertising for medical institutions must be based on facts, experience and credentials, so medical spa owners and operators must make sure that the testimonials they use are factually correct and address only the customer’s experience with the practice he or she is endorsing.

It is also important that you obtain proper consent from your patients before you post or distribute their testimonials. Even though the patients’ participation may seem to represent tacit consent, you must still go through proper channels to make sure that you are not opening yourself up to patient privacy issues. After all, acknowledging that a patient enjoyed a visit to your facility intrinsically reveals that he or she is your patient, which is a HIPAA violation. Again, speak with a knowledgeable health care attorney to learn what you are required to do to remain compliant when using testimonials.

Mind Your Business Partners

If a medical aesthetic practice is marketing its services via deal websites such as Groupon (which is of questionable legality in the first place—again, consult with your health care attorney before launching such a campaign to determine if it is allowed in your state), it should make sure that everything posted on those sites and disseminated via email by those outlets conforms to the rules of health care advertising previously discussed. These sites sometimes create their own copy and distribute it without running it by the client first. Regardless of whether or not it produced the copy, your practice would be the one facing blowback from state regulatory agencies, so make sure that you see everything associated with your practice before it is posted or sent.

Don’t Offer Incentives for Referrals

A medical spa operator may be inclined to create a promotion that offers, say, 50% off a Restylane treatment if you refer a friend to the practice. Although it might be perfectly fine for a salon or a traditional spa to offer such a deal on a facial, a medical practice making such an offer is essentially telling the world that it is giving monetary value for referrals, which is potentially a direct violation of local anti-kickback or patient solicitation statutes. Laws regarding kickbacks vary from state to state, but most states with powerful, influential medical boards consider such promotions to represent kickbacks. For the same reason, it’s generally a bad idea to offer gift cards in exchange for referrals.

Putting Your Best Foot Forward

Medical aesthetic practices must use a great deal of caution when conducting marketing campaigns. If a medical spa’s ad campaign is properly executed, it can be very effective; however, the practice must be very careful about what it says and what its patients say about it so that it does not run afoul of the strict statutes and regulations that govern medical advertising.

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:  Business and Financials  Med Spa Law  Med Spa Trends 

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Legal Considerations for Medical Weight Loss Clinics

Posted By Administration, Friday, December 13, 2019

coolsculpting

By Michael S. Byrd, JD, Partner, ByrdAdatto

The obesity rate continues to grow, and so too does the competitive world of weight loss centers. The ability to prescribe medication is what makes medical weight loss clinics stand out in this crowded field. Along with pharmacotherapy, these clinics offer other non-surgical solutions, ranging from menu and exercise planning to counseling, all under the supervision of a physician. While these clinics can be lucrative, health care entrepreneurs should be aware of certain regulations before opening one.

In Texas, California and several other states, the “corporate practice of medicine” rule prohibits lay people or lay entities from employing physicians or offering professional medical services. Simply put, doctors can practice medicine; lay people cannot. The rule is meant to protect the general public from business owners who are more interested in income than quality health care, and its violation can lead to a felony conviction. As the wellness sector expands, the line between business and medicine begins to blur. But to be clear, even non-invasive procedures offered at a medical weight loss center can be considered the practice of medicine, and as such, this prohibition applies.

This begs the question: How are entrepreneurs and other non-physician providers able to own medical weight loss clinics? The answer can be found through a tried and true legal model used in the health care industry: the management services organization (MSO) model. Click here to read a previous post that sheds light on the prevalence and basic inner workings of the MSO model.

Staffing is another major consideration in establishing and owning a weight loss clinic. Each state has differing guidelines that delineate who can provide certain medical services. For example, in some states it is illegal for an unlicensed person to administer an IV or a CoolSculpting treatment, a common practice at a weight loss clinic. But not all states specify what kind of licensing and training are required for someone who provides elective, non-invasive services. This absence can lead to confusion. Some states go in the opposite direction and provide additional guidance on supervision and training. In Texas, for example, the Texas Administrative Code, Section 193.17, “Nonsurgical Medical Cosmetic Procedures,” specifies those parameters. However, even this section does not address all medical procedures that can be found in a medical weight loss clinic.

Medical weight loss clinics provide a necessary service within a multi-billion-dollar industry. However, these businesses are subject to stricter guidelines than the typical weight loss center. As with any health care-related business, certain regulations need to be observed.

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

With his background as both a litigator and transactional attorney, Michael Byrd brings a comprehensive perspective to business and health care issues. He has been named to Texas Rising Stars and Texas Super Lawyers, published by Thompson Reuters, for multiple years (2009-2018) and recognized as a Best Lawyer in Dallas by D Magazine (2013, 2016, 2017, 2018). He routinely lectures at continuing medical education seminars on the various business and legal issues that medical professionals face.

Tags:  ByrdAdatto  Med Spa Law  Med Spa Ownership 

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Can Your Medical Spa Withstand the Wave of Website Inaccessibility Lawsuits?

Posted By Administration, Monday, December 9, 2019

website on several devices

By Kita McCray, JD, ByrdAdatto

The Beach Boys believed, “If everybody had an ocean, across the USA, then everybody’d be surfin’, like Californi-a.” Fast forward 50 years, there has definitely been a rising tide of enthusiasm about surfing, but it’s not the enjoyable surfing experience the Beach Boys crooned about.

Recently, there has been a rise in frivolous “website surf-by lawsuits” alleging website inaccessibility violations based on Title III of the American with Disabilities Act (ADA). Title III prohibits discrimination on the basis of disability in places of public accommodation, requiring that such places be accessible to those with disabilities. Surf-by lawsuits arise when individuals systematically surf the internet looking for vulnerable business websites that are inaccessible or not fully accessible to people with disabilities. The individuals typically send a letter demanding settlement for the alleged violations in lieu of being taken to court, where the cost of litigation may be higher than payment of the settlement. Depending on the jurisdiction, website litigation settlements could range from $4,000 to $20,000.

Exacerbating the issue is an absence of formal government guidelines on ADA website compliance to instruct private businesses on how to ensure their websites comply. The absence of specific government guidelines or a legal consensus on how ADA compliance translates to the web, coupled with a cultural trend toward a more web-based marketplace, has left a wide berth for potential litigation. This loophole is why we counsel clients to be proactive and mitigate their risks by implementing a plan or hiring experts to make sure their website is ADA accessible.

For example, companies such as Crystal Clear Digital Marketing have been building and refining digital marketing tools and strategies to keep businesses profitable, including developing ADA-compliant add-on software, which provides a high level of coverage for its clients.

“Website accessibility standards are not set in stone, and the standards are ever-evolving. The standard for today may not be the standard for tomorrow,” said Joe Amaral, chief operating officer for Crystal Clear Digital Marketing. “This is why compliance requires ongoing monitoring. ADA website compliance is a combination of technology and human evaluation, with the human element constantly reviewing current standards and making updates as necessary.”

Businesses also could mitigate their risks by reviewing the recommendations offered in the Web Content Accessibility Guidelines, or WCAG 2.0 AA, and develop a plan to integrate these recommendations into their existing website accessibility policy.

Until this wave of surf-by lawsuits alleging website inaccessibility violations breaks, no surfboard can navigate these tricky waters. Hire an expert and legal counsel to help you lessen the risk of your company being targeted by these surf-by plaintiffs and their legal representatives, because it’s not a matter of if a plaintiff comes across your website—it’s a matter of when. And when they do, you will get sued if your site is found to not be compliant.

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

Kita McCray’s decision to become a lawyer was solidified in fourth grade after job shadowing a local lawyer in her hometown of Ferriday, Louisiana. In college, Kita dedicated all her enthusiasm and energy to becoming well-read in classic English literature before attending law school. But while working as a public health graduate researcher, she developed an interest in health law and policy, and decided to focus her legal studies toward health care law.  Today, Kita brings the full scope of her multidisciplinary background to assist clients with their business and health care needs.

Tags:  ByrdAdatto  Med Spa Law 

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How to Use Influencers for Medical Spa Advertising

Posted By Administration, Monday, December 2, 2019

influencer

By Sam Pondrom, JD, Associate, ByrdAdatto

Social media is discussed ad nauseam, so it’s always important to begin any discussion of social media by placing it in context. About 3.5 billion (with a “B”) people actively use social media every day, and about 3.46 billion people access it via mobile devices. This amounts to about half of the world’s population. Worldwide, the average person spends around seven hours per day on the internet, and two and a half hours of that seven is spent on social media. This means that roughly one-third of all internet use on a given day is social media-based. Advertisers in the U.S. will spend anywhere from $15 to $30 billion on social media marketing this year alone to reach those users. So, for better or worse, social media is not going anywhere anytime soon.

The engagement of “influencers” is a popular method of advertising on social media. As you likely already know, influencers are social media users who, by virtue of their looks, personality or talent, have developed large follower bases. These follower bases are easily reached by the influencer, and, because follower bases are self-selecting (e.g., the followers choose to follow the influencers), they are particularly susceptible to the influencer’s message. Consequently, influencer advertising is highly valued, since brands borrow the influencer’s reach and credibility to spread their advertising messages, which are often designed to blur the lines between organic user content and paid influencer advertisement.

However, this blurring of the lines often leads to issues with using influencers in medical advertising. So, if you currently use or plan to use social media influencer advertising, here’s what you need to know.

State medical advertising laws. It’s important to remember that no matter how you choose to advertise, you must comply with your state’s medical advertising laws.  While these laws vary from state to state, every state has a standard similar to this: Do not advertise in any manner that is false, deceptive, or misleading. So, what does that mean? You must take care to advertise in such a way that you do not, among other issues, create unjustified expectations about results; advertise or assure a permanent cure for an incurable condition; guarantee results; advertise professional superiority that cannot be verified; provide false, deceptive or misleading testimonials; or fail to identify models and actors used in advertising. Thus, when engaging an influencer for advertising purposes, you must first consider your state’s restrictions to ensure your advertisement is compliant.

FTC advertising requirements. On top of your state’s medical advertising laws, the Federal Trade Commission (FTC) has rules prohibiting “unfair methods of competition and unfair or deceptive acts or practices” in commerce. While this is a broad prohibition, compliance with the FTC can be reduced to three simple concepts: honesty, transparency and disclosure. The FTC is particularly concerned with the fact that the average social media user may have trouble distinguishing between organic user content and paid advertising. To that end, the FTC has determined that anytime an influencer performs marketing services, they are making what the FTC considers an endorsement. Accordingly, the FTC requires that an influencer must disclose any material connections that exist related to the product or service when using social media to make an endorsement. Material connections are connections that might affect the weight or credibility consumers give the endorsement. So, an influencer must disclose a business or family relationship related to the advertisement, a monetary payment connected to the advertisement, or the receipt of free product or services related to the advertisement. The disclosure must be made in plain language that is easy to see or hear, and is clear across all social media platforms and devices.

Use a contract. As made clear in the sections above, using influencers for medical advertising requires careful regulatory consideration. Accordingly, it’s important to use contracts to allocate risk and reduce the potential for unmet expectations.  There are multiple potential pitfalls associated with engaging an influencer for medical advertising. By using a contract, you can address these issues and ensure key items such as content, payment, competition and regulatory compliance are all addressed. For example, you may want to give the influencer creative license in writing the advertisement so their voice comes through (or not). Regardless of who is writing the ad, a physician must have final say over any and all medical claims. You may also want to get creative in compensating the influencer, but you must structure the payment in a manner that is compliant with your state’s anti-kickback laws. By memorializing the important aspects of the influencer-advertiser relationship, you can ensure the advertising meets your standards and expectations and the relationship complies with relevant state and federal law.

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 youngest of three brothers, Sam Pondrom learned early on how to work effectively as part of a team. After graduating from Oklahoma State, an intrinsic sense of curiosity and a keen eye for details led Sam to work as an accountant for two Engineering-News Record top 40 construction firms. It was here where he honed his ability to analyze complex issues and craft clear, concise answers. Sam utilizes these skills to work in partnership with our clients to resolve their complex business and regulatory concerns in the most simple, straightforward way.

Tags:  ByrdAdatto  Med Spa Law  Med Spa Trends 

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Who Can Do What in a Medical Spa?

Posted By Administration, Friday, November 15, 2019

medical spa team

By Bala Mohan, JD, ByrdAdatto

As the new kid on the block, medical spas are breaking the mold of the traditional medical practice model. The merging of medicine and day spa services has created a new industry with multiple governing authorities to regulate it and the varying roles within it.

Most medical spas provide some combination of medical and aesthetic procedures—lasers, Botox, fillers, Kybella, microneedling, microdermabrasion, dermaplaning, chemical peels, dermabrasion and CoolSculpting. Often, this menu of services blurs the line between medical and spa treatments. While these procedures are considered medical in most states, exemptions exist in others. For example, the cosmetology boards of certain states allow aestheticians and cosmetologists to perform microdermabrasion and dermaplaning, as long as the procedure does not penetrate the dermal layer of the skin. On the other hand, more restrictive state regulating boards limit aesthetic and cosmetology practices to the topmost layer of the skin. This leads to the common question—who can do what in a medical spa?

The authority to administer medical aesthetic treatments follows a basic hierarchy:

  1. Physician;
  2. Nurse practitioner (NP) and physician assistant (PA);
  3. Registered nurse (RN);
  4. Licensed practical nurse (LPN)/licensed vocational nurse (LVN); and
  5. Aesthetician, cosmetologist and unlicensed personnel.

Physicians

Physicians have the broadest authority and often fill the role of owner or medical director in medical spas. The delegation of medical treatments to the rest of the staff falls under the supervision of these physicians, and sometimes NPs and PAs.

NPs and PAs

Certain states grant independent practice authority to NPs, and in those states, physician delegation or supervision is not required. Independent practice NPs can provide medical procedures falling under their scope of practice. Where NPs due not have autonomy, state laws generally indicate the level of physician supervision required for both NPs and PAs. In most cases, NPs practice in collaboration with a physician. Depending on the state’s laws, collaboration commonly follows written protocols (e.g., a list of delegated medical tasks, restrictions or limitations, prescriptive authority and level of supervision). Similarly, PAs usually practice pursuant to a supervision or delegation agreement, addressing their scope of practice and any applicable restrictions.

RNs

The scope of practice of an RN is more limited and subject to stricter delegation and supervision than that of an NP or PA. Unless state law dictates otherwise, a qualified physician or independent practice NP may delegate medical tasks to RNs, as long as the procedure is within their scope of practice and competency has been verified. If required, written protocols are delineated and appropriate supervision provided. If state laws do not define the level of supervision, the delegating practitioner must use their professional judgement to identify and engage in it appropriately.

LPN/LVN

The scope of practice of LPNs/LVNs is more limited and subject to stricter delegation and supervision than an NP, PA or RN. State laws generally dictate the medical tasks that a qualified physician or independent practice NP can delegate to LPNs/LVNs, whether written protocols are required, and the appropriate level of supervision. Similar to RNs, if state laws do not define the level of supervision, the delegating practitioner must use professional judgement to identify and engage in it appropriately.

Aestheticians and Cosmetologists

There is much confusion in the medical spa world about who is considered licensed personnel. While aestheticians and cosmetologists are licensed by cosmetology boards, they are considered unlicensed personnel by medical standards. They generally are permitted to perform spa procedures—e.g., facials and certain types of massages—that fall under their cosmetology licensure, but prohibited from doing anything requiring medical training.

Unlicensed Personnel

In addition to estheticians and cosmetologists, medical assistants (MAs) are considered unlicensed personnel for medical treatments and can perform treatments in medical spas only as state law allows. With limited to no medical training, these staff members generally are not permitted to perform medical or invasive procedures. Even if state law allows delegation, it often requires that the delegating practitioner provide onsite direct supervision during procedures. Delegation of medical treatments to unlicensed personnel must be approached with extreme caution.

From state to state, laws related to medical spa treatments vary from the very detailed to the very sparse, leaving room for legal interpretation.

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

Bala Mohan, JD, knew from a very young age that her choice of career would be related to science because she excelled in her biology and chemistry coursework. With a strong passion for genetics and the desire to find a cure for her mother—who was diagnosed with diabetes at an early age—Mohan obtained a Bachelor of Technology in Pharmaceutical Biotechnology. Having worked as a scientific researcher during her undergraduate studies, Mohan greatly values attention to detail and is a meticulous person. She then pursued a master’s in Entrepreneurial Biotechnology to gain knowledge about business and startups. This landed her a position with Cleveland Clinic Innovations, where she evaluated over 100 innovations and negotiated deals with potential investors. In this role, Mohan had the opportunity to interact with business and health care lawyers from multiple health care organizations, and she quickly realized that her real calling in life was to be a health care attorney. Subsequently Mohan obtained her JD and was able to pursue a career that combined all her interests—science, business, and law.

Tags:  ByrdAdatto  Med Spa Law 

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Proposed Changes to Texas Rule §193.17 Now Available for Comment

Posted By Administration, Friday, November 8, 2019

texas capitol

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

As we covered previously, the Texas Medical Board (TMB) voted to officially propose a set of changes to Texas Administrative Code Rule §193.17—the rule that provides guidance of the delegation of nonsurgical medical cosmetic procedures. The TMB proposed some changes at a stakeholder meeting in early October (covered here) but did not publicly disclose the final version it approved for publication; it instead intended the publication in Texas Register to serve as the changes’ public debut. The wait is over—this week’s issue of Texas Register contains the TMB’s proposed rule changes (starting on page 6669).

These proposed changes are broadly similar to the initial version discussed at the stakeholder meeting in early October. However, this approved version makes significantly more minor adjustments than the original proposal would have. The prior version would have made significant changes to who can perform procedures and what supervision is needed; the proposed version maintains the current rule and permits physicians to delegate to both licensed and unlicensed people, provided they are “qualified and properly trained.” Similarly, the proposed rules still require that supervision be provided by an advanced practice registered nurse (APRN) or physician assistant (PA) who is onsite or by a physician who may be offsite. The current rule requires that the physician be available for emergency consultation, whereas the proposed rule would require the physician’s “immediate availability… for consultation.” The proposed language does clarify that supervision does not require direct observation.

This new proposal also makes a significant addition to the current rules by adding a requirement that the physician notify the board of their intent to delegate and supervise medical spa-type procedures. This notification would be made on a board-supplied form and would include:

  • Information on the business’s owner, location and phone number;
  • A list of all PAs, APRNs and qualified persons who will be performing procedures; and
  • The name and license information of the supervising physician.

This document would need to be updated within 30 days of changes, additions or terminations.  Additionally, the physician would need to secure an alternate supervising physician if they are unable to provide supervision. The proposed rules go on to state that all physicians who delegate and supervise procedures are responsible for ensuring compliance with all applicable rules and laws, and violations are grounds for discipline. 

It is important to remember that these are only proposed changes—they are not yet official or final. We are currently in a 30-day window during which members of the public can submit comments and feedback. At the end of the 30 days, the TMB, at a public hearing, will vote on whether to formally adopt the changes as they are currently written or to make modifications as a result of public comments. If you would like to submit feedback to the TMB, it can be sent to the attention of Rita Chapin at:

P.O. Box 2018
Austin, Texas 78768-2018

It also can be emailed to rules.development@tmb.state.tx.us.

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 

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What Medical Spa Owners Need to Know About LLC Taxation

Posted By Administration, Monday, November 4, 2019

tax forms

By James M. Stanford, JD, Partner, ByrdAdatto

Fake or Real: My company is taxed as an LLC—Fake!

There is no such thing as being taxed as a limited liability company (LLC).

Clients, as well as tax and legal professionals, routinely confuse entity structure with tax classification. Quite commonly, we hear clients state that an entity is taxed as an LLC when, in fact, no such tax classification exists.

Many people do not realize that when forming an entity—such as a medical spa—typically there are two principle filings. Understanding the difference can alleviate a lot of confusion.

  1. The first filing is at the state level, which incorporates the company as a legal entity (i.e., filing as a limited liability company).
  2. The second filing—or filings—are with the Internal Revenue Service to obtain an employer identification number. This filing determines how the new entity will be treated from a federal tax perspective.

An LLC is purely a state-level entity structure. In turn, the LLC elects how it will be taxed: either as a partnership, an S corporation, a C corporation or a disregarded entity. Generally, when someone says they are taxed as an LLC, what they really mean is that they are taxed as a partnership.

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

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  ByrdAdatto  Med Spa Law 

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California Continues History of Limiting LVNs and MAs in Medical Spas

Posted By Administration, Friday, November 1, 2019

nurse

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

Every state has differing rules about what types of tasks and procedures may be delegated to licensed vocational nurses (LVNs) or unlicensed medical assistants (MAs). Usually, LVNs and MAs have a more restricted scope of practice when compared to that of a registered nurse (RN). California, in particular, greatly restricts what MAs and LVNs may do, and it has a history of publishing information confirming this. Recently, it appears that the state’s licensing boards have been increasing enforcement of these restrictions through the use of undercover investigators visiting medical spas. So, in the interest of compliance, now is an excellent time to review what MAs and LVNs can and can’t do.

California defines the specific tasks that MAs may perform in statutes and rules; this leaves very little room for differing interpretations. This differs from the norm in that it the majority of other states only provide general rules or guidance. An MA in California is authorized to perform “basic administrative, clerical and technical supportive services.” Technical support services include listed tasks such as administering medication, performing skin tests and non-invasive specimen collection. The Medical Board of California (MBC) offers a number of resources to help determine what qualifies and what doesn’t. For general questions, it has provided a lengthy FAQ that provides very helpful guidance. You will note that MAs may inject medication in some circumstances; however, that does not include the injection of Botox, as the MBC makes clear elsewhere. MAs also are strictly prohibited from administering any type of laser, intense pulsed light, radio frequency, microneedling, microdermabrasion or chemical peel procedure. As such, MAs would be extremely restricted in a medical spa setting and unable to perform nearly any of the common procedures.

LVNs in California, by the nature of being licensed professionals, do enjoy a much broader and varied scope of practice. LVNs are licensed to perform “services requiring those technical, manual skills acquired” in approved vocational nursing courses. This permits LVNs to perform tasks such as injecting medication, withdrawing blood and starting IV fluids, when directed by a physician. Once again, however, LVNs are very limited in a medical spa setting in California. Like MAs, LVNs are not able to inject Botox, use lasers or light-based devices, or provide microdermabrasion services.

AmSpa also has become aware that the TMB is increasing its enforcement for these types of procedures by using undercover investigators who pose as potential customers. From the limited information available, it is not entirely clear if the investigators are acting based solely on the procedures offered or if they also are looking for insufficient or improper physician oversight. Regardless, LVNs who offer Botox and filler injections are subject to disciplinary hearings for practicing outside of their scope. If you want to learn more about the Board of Vocational Nursing’s Enforcement Division, you can read more here.

In the past, we have discussed the importance of remaining compliant and operating within each license’s scope of practice (here and here, for example). A board investigation such as those mentioned above can be a much greater problem than it appears. The LVN can be disciplined for acting outside of their scope of practice and may have their license suspended or revoked. The physician may also be subject to discipline from the MBC for aiding in the unlicensed practice of medicine or providing inappropriate supervision. They also can be subject to penalty, including suspension or revocation. If that were to happen, every other nurse or physician assistant at that medical spa would be out of a job unless there was another physician in the practice who could supervise.

If you would like to learn more about the practice and structure of medical spas, plus all of the latest trends and best practices, attend The Medical Spa Show 2020 in Las Vegas from January 31 – February 2, 2020.

Tags:  Med Spa Law  The Medical Spa Show 2020 

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Join AmSpa at the Orlando Medical Spa & Aesthetic Boot Camp

Posted By Administration, Friday, October 25, 2019

caribe royale orlando

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

Starting next Saturday, November 2, AmSpa will host its Orlando Medical Spa & Aesthetic Boot Camp at Caribe Royale Orlando. This is the last AmSpa Boot Camp until April 2020, so if you are a medical aesthetic professional who wants to learn how to improve your practice, make your plans to join us next weekend. There’s still time to register for the event—just click here to sign up.

Here is a quick overview of the program:

Saturday, November 2

The Boot Camp begins at 8 a.m. with a continental breakfast, followed at 8:30 a.m. with my opening keynote. From there, we will move into the main program:

  • 9 – 10:30 a.m.: The Plan, presented by Bryan Durocher (Durocher Enterprises)—What are the most effective ways to develop a business plan for your medical spa? Medical Spa Consultant Bryan Durocher discusses the ins and outs of the planning process and helps determine how long it realistically takes to open a practice.
  • 10:45 – 11:45 a.m.: The Lessons, presented by Louis Frisina—Every medical spa is different, but the successful ones share several common traits. In this session, Business Strategy Consultant Louis Frisina discusses the qualities that are typically found in practices that bring in a significant amount of revenue.
  • 12:45 – 1:30 p.m.: Medical Aesthetic Hot Topics Panel, featuring Tim Sawyer (Crystal Clear Digital Marketing), Candace Noonan (Environ Skincare) and Gail Winneshiek (Galderma)—This panel, moderated by yours truly, will feature a spirited discussion of the current issues and events that concern medical spa owners and operators.
  • 1:30 – 3:30 p.m.: The Law, presented by Alex Thiersch (AmSpa) and Bradford Adatto (ByrdAdatto)—In this presentation, we’ll discuss the long-standing and emerging legal issues that every medical spa owner needs to know about. As you can imagine, there is a lot to cover here, since new concerns seem to be arising daily lately.
  • 4:15 – 5 p.m.: The Treatments, presented by Terri Ross (Terri Ross Consulting)—Learn about the most profitable and popular treatments available to your practice, and find out how to best determine which treatments are right for you based on the state of your practice.
  • 5 – 6 p.m.: The Digital Marketing Ecosystem, presented by Tim Sawyer (Crystal Clear Digital Marketing)—Find out how to effectively spread the word about your medical aesthetic practice and how best to determine what’s working and what’s not. Your practice’s digital presence is more important than ever before, and curating it should be a top priority.

Saturday will wrap up with a cocktail reception from 6 – 7:30 p.m.

Sunday, November 3

Once again, the Boot Camp begins at 8 a.m. with a continental breakfast.

  • 8:30 – 9 a.m.: Anatomy of a $5-Million Med Spa, presented by Alex Thiersch (AmSpa)—Have you ever wondered what the difference is between your medical spa and one that’s mega-successful? It might be less significant than you think. This presentation will show what a $5-million med spa is doing right—and what you might be doing wrong.
  • 9 – 10 a.m.: The Financials, presented by Bryan Durocher (Durocher Enterprises)—At the end of the day, the money you’re bringing in is the most important measure of your practice’s success. This presentation will, among other things, demonstrate how to properly develop a budget and use metrics to determine your med spa’s strengths and weaknesses.
  • 10:30 – 11:30 a.m.: The Long-term Revenue, presented by Brandon and Jenny Robinson (Skin Body Soul)—Simply being successful isn’t enough for a medical aesthetic practice; you have to know how to maintain and grow your success. In this session, Bryan will show you how to build patient loyalty and move your business forward.
  • 11:30 a.m. – 12:15 p.m.: The Consultation, presented by Terri Ross (Terri Ross Consulting)—As the old saying goes, you never get a second chance to make a first impression. Learn how to put your best foot forward with effective patient consultations—and how to turn them into consistent business.
  • 1 – 2 p.m.: The Marketing Plan and Social Media, presented by Brandon and Jenny Robinson (Skin Body Soul)—This session will help you determine how to most effectively market your medical aesthetic practice using both traditional methods and cutting-edge techniques.
  • 2 – 3 p.m.: The Team, presented by Bryan Durocher (Durocher Enterprises)—A medical spa is only as good as its personnel, so it’s important to make sure that you hire a staff that can do everything you want it to—and more. In this session, you’ll learn about recruiting, hiring and retaining employees who can make your medical spa dreams come true.

Also, you’ll have the chance to visit with a number of exceptional vendors during this event. Attend the Orlando Medical Spa & Aesthetic Boot Camp to check out the latest and greatest from the following companies:

We hope you can join us in Orlando next weekend. This Boot Camp is a tremendous opportunity to get a medical aesthetic business started off on the right foot, and learn how to take an already successful business to the next level. Click here to register!

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

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 Chicago, IL 60661

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AmSpa provides legal, compliance, and business resources for medical spas and medical aesthetic practices.

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