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Medical Spa Business Advice: Make Fair DealsOpen in a New Window

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

In his 2013 letter to Berkshire Hathaway shareholders, company chairman and CEO, Warren Buffett, said, “More than 50 years ago, Charlie [Munger, Berkshire Hathaway vice chairman] told me that it was far better to buy a wonderful business at a fair price than to buy a fair business at a wonderful price.” This might seem counterintuitive to the shark-like practices that are celebrated in certain sectors of the modern business world today, but I believe that if you conduct all your dealings fairly and ethically, you will give yourself a good chance for success.

When you go into business and begin forming partnerships, agreeing to contracts, and making deals with others—whether they are employees or external businesses—you should always strive to make fair deals. In other words, don’t scramble after every last dollar and screw people over just so that you can feel like you’ve “won” something. Some businesspeople will do anything to achieve this feeling, but deals don’t have to have winners or losers—a fair deal allows everyone to get what they want.

For example, if you’re negotiating with someone who you know is undervaluing his or her position, don’t try to take advantage of it just to save a few bucks. You should respect the other party, no matter what. You might even end up paying a bit more than you think you should be paying, but as long as you’re conducting business ethically, you’re likely to build a positive reputation among your peers, which should lead to future opportunities.

I believe in something I call “corporate karma,” which dictates that if you conduct your business fairly, you’ll end up attracting people—employees, business partners, etc.—who are good for your business. In regard to the previous example, if, instead of making a fair deal with the person who is undervaluing his or her asset, you decide to take advantage of his or her inexperience, that person will almost certainly find out what you’ve done and will likely be extremely hesitant to do business with you again. What’s more, he or she is likely to spread word of your shady practices, and you might find yourself frozen out of certain circles because you needed to feel like you “won” the original deal.

There are lots of things in the world of business and finance that you can’t control, but your conduct isn’t one of them. If you approach your dealings ethically and fairly, you’ll improve your chances of success. After all, the best kinds of deals are the ones in which both sides feel as though they’ve won.

For more medical spa business and legal best-practices, and to learn how to build and run your med spa right, attend one of AmSpa’s Medical Spa & Aesthetic Boot Camps.

 

When Should You Report a Non-Compliant Med Spa?Open in a New Window

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

First, thanks to everyone who commented on the latest blog and statement related to The Dr. Oz Show’s segment on rogue medical spas. We received a TON of feedback on the issue, and I know that all of you are equally concerned about some of the shady practices that go on in this industry. I think that the most important takeaway from all of this is the importance of realizing that each of our individual actions—and those of our medical spas and teams—impacts the entire industry. Although most do the right thing, it’s the few bad actors that give the industry a poor reputation. Perception is reality in this space, and it’s time that each of us take responsibility—and action—for the industry as a whole. If we do that, we’ll flourish.

With that said, many have contacted me with questions about what to do when you know someone is breaking the law or not following applicable regulations. When should you report someone? Also, who do you report them to?

This is obviously a very relevant question, but there’s not necessarily an easy answer. First, it’s important to understand that reporting a competitor—or anyone for that matter—to the medical board is a very serious matter and should not be taken lightly. In my opinion, this should not be done unless you know, for certain and without a doubt, that the provider or medical spa (1) knows the law, and (2) is actively choosing not to follow it. If you are not certain of those two things, I would at least give the person or practice the chance to become compliant.

Remember, many started out in this industry not knowing the first thing about medical spa law. When I first started AmSpa, nearly 100% of the med spas I talked to were non-compliant. It is only through education and the hard work of the industry that we’ve started spreading the word about compliance. Nevertheless, there are still hundreds, if not thousands, of med spas operating right now that have never been told—not by their boards, their professors, or lawyers—that what they’re doing is wrong. It’s not that they don’t want to be compliant, they just don’t know the rules in the first place. 

This is NOT an excuse for the bad actors out there, as most of them are taking extreme steps that are obvious to all of us as being illegal. 

What I don’t want to happen is for the entire industry to turn on itself and start reporting everyone else for every perceived offense without truly knowing whether the rules are being broken. Remember: Once you report someone, the cat is out of the bag. The medical board (or nursing board, cosmetology board, etc.) is required to conduct an investigation. If they find nothing wrong, the charges are typically dropped. But guess what? They rarely find nothing wrong. Almost all medical spas are doing at least one thing incorrectly, because most have had no training on compliance, and the rules that are in place are incredibly complex.

So, here’s the rub: If the boards are inundated with thousands of complaints about medical spas, state legislatures will do their thing and start over-regulating the industry. This could end up being the worst thing for everyone.

I want to be clear about one thing: If you know of—and are completely certain—that a med spa is performing dangerous procedures, intentionally breaking the law, or endangering patients, I absolutely, 100% want you to report them to the state medical board immediately. Do not pass GO—report them right away. You know who I’m talking about. These are the folks that are burning and deforming people; the ones featured on The Dr. Oz Show. Those people need to be rooted out, and quickly.

If you know a practice is behaving in this manner the first step is to a) find out what license the spa or practitioner is operating under and then b) contact the board that governs that license. Typically physicians and physician assistants are governed by medical boards, nurse practitioners and other nurses are governed by nursing boards, aestheticians are governed by cosmetology boards, etc. In some states, like Illinois for example, license holders are governed by a licensing department like the Illinois Department of Financial and Professional Regulation (IDFPR), in which case reports should go to this licensing body.

However, the much harder case is when you think someone is doing something wrong, or if you know they’re doing something wrong, but you’re not sure if they even know the rule. Again, if there’s danger to patients or others involved, report them right away. But if not, I would reach out to them and let them know, respectfully, that the states are cracking down and that you’re worried they are not in compliance. Refer them to AmSpa. Send them an e-mail with a link to their state page. Send them one of my videos. But try, at least once, to get them on the right side of the law. Again, remember where you were two or three years ago. Wouldn’t it have been nice if someone reached out and tried to inform you? Do it, it’s good karma.

And I know what many of you are thinking: “But it’s a competitor! Won’t it be good for me if they get caught and go down?” No, it wouldn’t. For one, it’s bad corporate karma (unless, again, it’s obvious and necessary to report them for public safety). And two, as described above, tons of complaints coming at once is going to make it harder for everyone to survive, including your own business. Trust me, this industry is just getting started. There’s plenty of money for everyone.

What if the provider or medical spa ignores you and continues to knowingly violate the rules, or puts patients in danger? Then I want you to report them immediately. Call your medical board and tell them exactly what you know, because those are the “rogue” medical spas that need to be weeded out.

Hope this helps … AmSpa is here for you, so keep sending questions!

 

 

Med Spas, Social Media Influencers, and the LawOpen in a New Window

med spas, influencers, and the law

As the use of influencers increases in medical aesthetics, so does the potential for legal missteps. Though this method of marketing is beginning to proliferate all industries, since medical spas offer medical treatment the regulations that govern influencer marketing in this space are more stringent than with large brands you might see represented on Instagram, YouTube, or other social channels.

The power of social media influencers is beginning to exert itself on the medical aesthetic industry. After all, if an influencer goes to a medical spa for a treatment, he or she may film the entire visit and broadcast it throughout the world on his or her social media channels. If the influencer has a large following, this can have a significant impact on a medical spa’s business.

However, such visits are not always the organic, spontaneous situations they are portrayed as being. More and more, medical spas are compensating influencers with cash and/or free treatments in order to get them to portray their practices in a positive light. If your medical spa is engaging in this sort of advertising, it’s important to try to understand the legal issues surrounding these matters, although by and large, precedent has yet to be established, as this is a relatively new situation and a new medium in which these transactions are occurring.

(For more in-depth information on legal issues with influencer marketing sign up for AmSpa’s live webinar broadcast on the topic.)

Have Written Agreements in Place
For medical spas, it is very important to have a written agreement with the influencer in place. This agreement should dictate what the influencer’s responsibilities are—for example, how many times they are going to post about the practice and what they are going to post. The practice should attempt to have as much editorial control over the posts as possible, since the influencer’s primary goal is to promote his or her brand—not yours—and it’s likely going to be up to you to keep them on message. You have to do what you can to make sure the deal meets your expectations to ensure that you’re getting your money’s worth. Even if you’re compensating the influencer with a treatment only, you need to make your intentions crystal clear, and a written agreement will help both sides understand the nature of the deal. This also helps you to put a value on the services you are providing.

Medical Advertising Rules
Another reason why you should seek as much editorial control as possible is because as a medical provider, the minute you compensate someone to promote your brand you are subject to medical advertising rules and regulations, which are much stricter and have much more dire consequences for violations than common advertising rules. Primarily, this means that you can’t say anything that can be construed as misleading, untrue, aggrandizing, or exaggerated—everything that’s said about your medical aesthetics practice must be provably true. You can’t simply say that you’re the best injector in the world, for example, because you’ll never be able to prove it, so the advertisement can be construed as being misrepresentative.

When influencers are being paid to represent your medical spa (which includes providing them with free services), they are legally acting as a paid advertiser. As such, you’re responsible for everything they are saying, so if they say that your Botox treatment is the best in the city or your medical director is the best doctor in the country, you are responsible for that message, and the situation can get very sticky if a medical board finds out about it. You will need to make sure that the influencer understands that the medical spa is subject to these restrictions and that he or she needs to be careful about precisely what is said in these videos or blog posts. With a written agreement, you can disclaim some of these factors, which allows you to exert some control over the message.

Disclosure Guidelines for Influencers
There are also a few legal issues that the influencers themselves should be aware of for their own sake. In 2017 the FTC issued warnings to over 90 social media influencers regarding required disclosures when being compensated in exchange for coverage, and included some guidelines for compliance. These include 1) Keep your disclosures unambiguous, 2) Make your disclosures hard to miss, and 3) Avoid hard to read, buried disclosures in string of hashtags that are skipped by readers.

Influencer marketing can be a very powerful tool, but it must be wielded with some care in order for your medical aesthetics practice to remain compliant. As I mentioned earlier, the legal aspect of its use in a medical setting is still developing area, so if you’re unsure about how to proceed, be sure to consult with an experienced healthcare attorney.

For more information on utilizing social media to build your practice, and about the laws governing medical aesthetics sign up for an AmSpa Medical Spa & Aesthetic Boot Camp.

 

Laws Regarding IV Therapy in Medical SpasOpen in a New Window



Intravenous therapy (or IV therapy) is a medical spa treatment that is growing throughout the country, so questions about the law are starting to come in more and more frequently. It has been around in hospitals and medical practices for decades as a means to quickly provide an infusion of fluids and medicines to patients, however with the growth of non-invasive medical aesthetic practices, more business are attempting to offer quick, alternative ways of improving an individual’s health, look and feel.

As such, IV Bars are a growing trend, allowing individuals quick access to hangover treatments via IV hydration with an infusion of vitamins and nutrients. Additionally, some of these facilities offer ongoing treatment to promote anti-aging and revitalization.

What many owners of these facilities do not realize is that the piercing of skin via the IV is the practice of medicine in many states, including Texas. While these procedures are commonly referred to as “cosmetic treatments,” under Texas law, all procedures that involve the injection of medication or substances for cosmetic purposes are considered medical procedures. In fact, Texas law designates them “nonsurgical medical cosmetic procedures.” As such, this limits the ownership of an IV Bar to only a select number of licensed medical providers in many states due to the corporate practice of medicine doctrine, and the supervision requirements over those providing medical services.

Corporate Practice of Medicine

The first major legal consideration is the prohibition against the “corporate practice of medicine.” This is a rule many states have adopted that prohibits lay people or lay entities from employing physicians or offering professional medical services. States that have strong corporate practice of medicine rules include Texas and California. These states, along with several others, explicitly provide that providing the types of non-invasive, elective procedures that an IV Bar does entails the practice of medicine. As a result, this prohibition must be taken into account when setting up an IV Bar.

(AmSpa members can check their state's medical aesthetics legal summary to see if their state's laws regarding the corporate practice of medicine.)

Supervision

The second major consideration in establishing and owning an IV Bar is proper supervision. Each state delineates who can provide certain types of medical services, which in Texas, includes IV Bar services. For example, every state generally requires that only licensed physicians perform surgery on a patient, but not all states specifically outline what kind of licensing and training is required for someone to provide elective non-invasive services. However, the Texas Administrative Code (“TAC”), Section 193.17, “Nonsurgical Medical Cosmetic Procedures” does provide additional guidance on supervision and training for Texas-based medical facilities. Based on this rule, IV Bars must follow the same supervision requirements set forth in the TAC.

(For more info on supervision and delegation in medical spas, sign up for AmSpa’s Medical Spa Webinar on the topic)

Based on the above limitations, those non-physicians, wishing to enter into the nonsurgical cosmetic treatments need to make sure they understand the limitations and develop corporate models that are legal under state laws.

Bradford Adatto is a partner at the business, healthcare, and aesthetic law firm of ByrdAdatto. 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.

For more information and guidance on setting up IV Bars or staffing an IV Bar please contact Brad at badatto@byrdadatto.com or (214) 291-3201.

 

Important Insurance Policies Medical Spa Owners are OverlookingOpen in a New Window

overlooked medical spa insurance policies

Medical spa owners and operators must maintain an array of insurance coverage to help protect their practices from everything from medical malpractice penalties to flooding. However, there are some types of coverage that medical spa owners may not realize they need until it is too late. Here is a quick look at a few of them.

(Note: Check out additional information about the American Med Spa Association’s Medical Malpractice Insurance Program, available to AmSpa members only through the Insurance Office of America.)

Cyber Liability

Businesses didn’t used to have to worry about people hacking into their networks and stealing customer data. Unfortunately, in 2018, cyber security is a major concern for all companies—even medical spas. Cyber liability insurance helps policyholders endure a cyber attack by paying their recovery expenses.

“Its purpose is to help with the notification process, because every individual who could have been impacted by that breach has to be notified,” explains David Shaffer, vice president of Professional Medical, the health care division of Insurance Office of America and AmSpa Medical Malpractice Insurance Program representative. “You have to offer them credit monitoring, and there are going to be legal fees and various other expenses associated with making the situation whole again.”

Cyber liability insurance also provides crisis management and public relations services that can help a policyholder rebuild its name after a cyber security event.

“A lot of my medical spa accounts often wonder, ‘Why is anyone going to be interested in what I have to offer? Why am I going to end up being a target?’” Shaffer says. “Small businesses are the primary target these days for a few reasons. I think the biggest reason is that small business owners are less likely to have a strong defense against someone trying to hack into their systems, as opposed to a larger organization that’s actually going to spend money on building this infrastructure.”

According to PricewaterhouseCoopers, a cyber attack typically costs a small business between $84,000 and $148,000.1 What’s more, 60% of small businesses that suffer cyber attacks close within six months, according to a Champlain College study.2

Cyber liability insurance is available from most business office package insurers, and some malpractice insurers also offer a token amount of cyber liability coverage. And, of course, it can be purchased as a standalone policy.

Employment Practices Liability

If you run a small business, such as a medical spa, it is somewhat likely that at some point, you will be confronted with an employment-related tort—that is to say, a lawsuit filed by an employee who feels that he or she has been mistreated in some way. Employment practices liability insurance covers claims such as wrongful termination, harassment, failure to hire, failure to promote, wrongful disciplinary actions, libel, slander, and any other type of grievance brought by an employee against an employer.

(For more employment-related issues see AmSpa's webinar on employee handbooks in a medical spa.)

Spoilage

Many medical spa owners and operators overlook coverage for spoilage, but those who have experienced the problems created by a loss of electricity can attest to the fact that this can save a practice a lot of money.

“Most of these facilities are performing some form of an injection, and a lot of those medications need to be kept refrigerated,” Shaffer explains. “If there’s fire or water damage that shorts out the refrigerator and they can’t get into their medications to try and prevent them from spoiling, they need coverage for those medications that have been lost due to the temperature change.”

This coverage can be obtained as part of a business office package policy, but it is not an automatic coverage—it has to either be acquired through a loan endorsement that can be added to coverage or as part of blanket endorsements that are incorporated into a policy.

If you determine that your practice needs spoilage coverage, it’s probably best to purchase a bit more than you think you need, provided you can afford it.

“I had a couple of clients during hurricanes that, while they had some spoilage coverage, they were inadequately insured—instead of needing $10,000 worth of coverage, they needed $20,000, because they did a lot of injection-based services,” Shaffer says. “I would probably say that’s one that needs to be focused on—at least ask to see if the appropriate amount of coverage is there, if it’s there at all. If it’s not, get that taken care of.”

Off-label Use

Kybella is an injectable designed to combat “double chins,” and it is becoming extremely popular in the medical aesthetic industry. It is approved by the U.S. Food and Drug Administration (FDA) for treatment of subcutaneous fat under the jaw line and, as long as it is being used in this manner, it should be covered by most insurers. However, some practices are using Kybella to treat fat deposits elsewhere on the body, and that is where coverage problems can arise.

“Because [practices] have notified their insurers that they’re performing Kybella, they believe that it’s a blanket-type coverage that’s being offered to them,” Shaffer says. “All malpractice policies have wording in them that say non-approved drugs and devices are specifically excluded from coverage, so unless they get written verification from their underwriter that off-label services have been approved, the likelihood of them actually having coverage is probably not as strong as they believe.”

Practices that are using Kybella (and any other drugs, for that matter) for treatments beyond those for which they have been approved should consult with their insurers to make sure that they are covered for this sort of use. If not, they should either amend their policy to cover these treatments, which may be possible, or stop offering them.

Making the Right Decision for Your Practice

For most medical aesthetic practices, the amount of insurance coverage they have is dictated by what they can afford. Generally speaking, most of the issues a medical spa will encounter can be covered by malpractice, general liability, property, and worker’s compensation insurance. Policies such as the ones described above sometimes take a back seat to more common insurance types because they aren’t as obviously valuable on a daily basis. However, if your practice can afford it, you may want to consider investing in the more overlooked coverage covered here. After all, you can’t be too safe.

References
1. https://www.theguardian.com/business/2015/jan/21/cybersecurity-small-business-thwarting-hackers-obama-cameron

2. http://mastersinlaw.champlain.edu/internet-privacy-in-the-digital-age/

 

Statement on the Doctor Oz Segment, “Rogue Medical Spas”Open in a New Window

doctor oz rogue medical spas

Negative outcomes from medical spa treatments do exist, as highlighted recently by the Doctor Oz Show, though they are few and far between. While there are bad actors in the industry, it is the American Med Spa Association’s belief that the majority of med spa professionals and practitioners are operating in good faith, and with their patients’ best interests at heart.

The Doctor Oz segment, titled “Rogue Medical Spas”, featured some severe adverse outcomes that were a result of some of these bad actors and negligent practitioners. The show reached out to AmSpa for feedback on the topic, and we were happy to provide the following statement highlighting the industry’s commitment to legal compliance and patient safety.



The fact is that the overwhelming number of med spas in existence are extremely safe and provide quality medical care by qualified practitioners. Most med spas are run by physicians and have qualified nurse practitioners, physician assistants, and RNs on staff providing excellent care in accordance with applicable law. The public should be assured that med spas that are run in a compliant fashion are extremely safe, and most med spa treatments have extraordinarily rare incidents of side effects or bad outcomes.

Unfortunately, because the demand for med spa services has grown dramatically over the past five years, the medical spa industry has grown just as fast. As a consequence, there have been some unqualified practitioners entering the industry looking to make money without following the applicable rules. When those bad actors make mistakes and harm people, news coverage of these events invariably follows, and the entire industry suffers as a result. These incidents do not represent the industry as a whole, which as mentioned is comprised overwhelmingly of safe, professional, competent medical professionals.

AmSpa has been at the forefront of dealing with this issue by implementing two strategies – educational articles and videos, and enforcement. For the past five years, AmSpa has been publishing, speaking, and educating both the industry and consumers on what constitutes a safe, compliant med spa. AmSpa is an organization founded on compliance, and its core purpose is to disseminate the applicable rules and regulations so that the industry – and the public – is safe. AmSpa’s website is the only resource where professionals and consumers can obtain information about the rules governing a safe med spa, as unfortunately, the state agencies charged with oversight don’t have the resources to publish, educate or often enforce existing rules. AmSpa’s entire mission is to both publish and educate about this hard-to-obtain information.

In addition, AmSpa has launched an initiative, with the help of medical spa owners, physicians, and regulators, to draft a core set of rules that the industry can universally adopt. This is a complicated process and, although the process has begun, it will take time for these rules to be developed and approved. In the meantime, there are certain things that the public can and should watch out for when choosing a med spa.

The first is that the public must recognize that medical spas are providing mostly medical treatment. Although some treatments at med spas are non-medical (facials, light chemical peels, light dermabrasions), most of the treatments are medical in nature and should be treated as such. Patients should always be seen by a doctor, a nurse practitioner, or physician assistant, depending on their state. If a med spa offers to treat a patient without being seen by one of those three license-holders, red flags should go up and the patient should seek treatment elsewhere.

Second, patients must do their homework to ensure that the practitioners performing treatments are licensed and trained to perform those treatments. Infrequently, there have been unlicensed, unqualified practitioners who have entered the industry. This is a minute fraction of the industry, but it is also the side that gets the most publicity (and rightfully so, given some of the recent results). The physicians and underlying practitioners must be trained in the procedures they are performing and the only way the public can find this out is by doing some homework. Research the doctor online. Ask for their relevant licensure. Call the medical board and nursing board and look up their license. Get referrals. Because the state agencies tasked with enforcing med spas are overwhelmed with many tasks (the opioid crisis, to name a big one), there isn’t as much enforcement in this area as is needed. So the burden falls upon the consumer – and the med spa owners – to regulate themselves. AmSpa is doing its part, but it’s a big industry and is growing daily.

Third, many of the med spas who perform poor treatments (or offer treatments by unqualified individuals) tend to offer treatments for steep discounts. Aesthetic treatments need to be done carefully and artfully and, as with many things, you get what you pay for. If a med spa is offering highly discounted costs or offering mega deals through discount programs, head the other way.

Finally, most states do not necessarily require a physician to be on site at the med spa while the treatment is being administered, provided that (i) the physician (or nurse practitioner or physician assistant) has examined the patient first, (ii) the physician is immediately available by telephone or other electronic means to respond to questions or emergencies, and, most importantly, (iii) the practitioner who is performing the treatment is trained, experienced, and qualified. But regardless of who’s performing the treatment, there should always be an RN on site, at a minimum, to oversee the procedures. Each state has its own set of regulations about on-site supervision.

I would reiterate that the vast majority of med spa owners and personnel are qualified medical professionals dedicated to helping patients feel better about themselves. This is a great industry and it’s unfortunate that a few bad apples have caused bad publicity. AmSpa is committed to educating the industry and public to ensure all med spas are safe moving forward.

Click here for more information on Doctor Oz segment.

 

Can LPNs Perform Injections? AmSpa Advises Against ItOpen in a New Window

Injectable treatments like toxins and fillers are central in the medical aesthetic industry, and licensed practical nurses (LPNs) can be valuable pieces of the medical spa puzzle. They typically provide excellent care to patients and can be relied upon to perform a number of non-medical tasks throughout the practice. In many medical aesthetic practices, LPNs even perform injections of fillers and Botox.

Unfortunately for those practices, though, this may create more problems than it solves, since in most states injecting patients falls outside an LPN’s scope of practice. (AmSpa members: check your state’s medical aesthetic legal summary to see who can inject in your practice.)



Before going any further, it’s helpful to understand what an LPN’s qualifications are. An LPN typically has undergone two years of training at a nursing school, and he or she has passed the National Council Licensure Examination-Practical Nurse (NCLEX-PN), which is administered by the National Council of State Boards of Nursing. In terms of the hierarchy of nursing, an LPN comes in below registered nurses (RNs) and nurse practitioners (NPs). An RN has earned a degree in nursing and passed the more rigorous NCLEX-Registered Nurse exam, while a nurse practitioner has done all this, earned an advanced degree in nursing, and passed a national board certification exam.

Of these levels of nursing, only a nurse practitioner is allowed to perform medical procedures in most states and, unfortunately for those who use LPNs to administer injections, most states recognize injections to be medical procedures. Therefore, LPNs should not be performing injections. AmSpa recommends that if your medical aesthetic practice is using LPNs to administer injections, it should stop doing so immediately. If a patient happens to suffer a bad outcome and raises a case with a state medical board, the practice, the supervising physician, and the LPN could be cited for practicing medicine without a license. This could result in severe financial penalties and possibly even create issues with the physician’s medical license.

There is a bit of a grey area here, however. If a physician can prove that an LPN has developed expertise in administering injections, a medical board may see fit to permit the LPN to continue performing these procedures. However, it is nearly impossible for a physician to prove that an LPN demonstrates unusually advanced injection skills, and there is no widely recognized certification specifically designed for injections, so physicians probably should not plan to use this defense if they are caught using an LPN to administer injectables. Physicians and practices should also be wary of LPNs who profess to have an expertise in this area.

It may seem like a good idea to use LPNs to perform injections of fillers and Botox, since doing so conceivably frees up more highly paid nurse practitioners and physicians to perform more lucrative procedures. However, doing so may very well place your practice in peril. Consult an experienced health care attorney to learn about the minutiae of the matter in your state, and stay tuned to AmSpa for any further developments in the matter. LPNs are valuable members of medical aesthetic teams; however, as with all medical spa employees, they must stay within their scope of practice in order for businesses to remain compliant.

(Author’s note: The American Med Spa Association (AmSpa) works with the national law firm of ByrdAdatto that focuses on medical aesthetic legalities and AmSpa members receive an annual complimentary legal consultation. Become an AmSpa member today!)

 

Five Good Reasons to Develop a Med Spa Business PlanOpen in a New Window

If practice ownership is your objective, then your first step in reaching that goal is to develop a well-thought-out business plan that establishes the viability of your proposed venture. A business plan details the financial structure and day-to-day operations of your practice. It demonstrates that you have a realistic roadmap for success based on carefully considered ideas about how to develop and manage your business.

Here are five good reasons why developing a business plan is critical:

1) Helps you achieve your goals
Experience has shown that people who document their plans are generally more likely to achieve their goals as non-planners. Actually taking the steps to create a written plan - to think, dream, and research and document your objectives potentially increases the likelihood of ultimately reaching your destination and controlling your business career. In addition, developing a business plan helps you better understand your business. It informs you of your practice's place in the market, so you know the actions that need to be taken to improve and grow your business.
2) Allows you to be proactive
A business plan helps you see potential risks in the market and develop strategies for responding to them. Rather than simply reacting to whatever changes come your way - whether they emanate internally or from outside influences - you have a roadmap that defines precisely where you want to go. You therefore know how to respond to inevitable fluctuations in the business environment. Without a documented plan, your practice is essentially rudderless, with no destination in sight and no guideline for responding to unforeseen circumstances, such as a significant drop in the market, or new technology opportunities.
3) Functions as a communications tool
As a business owner, you may need to borrow funds or hire service providers at some point in your career. Your business plan is an indispensable tool for communicating your business objectives to lenders, contractors, equipment vendors, and others who need to understand your practice vision. The business plan serves as an introduction to you and your practice. It tells your lender that you have the personal know-how and professional means to help ensure practice success. It demonstrates that your future practice is based on a solid grasp of both the local market and outside influences. And it provides the financial rationale for lending funds for your practice purchase or start-up based on historical or projected performance.
4) Provides a competitive edge
With a documented vision of your future in hand, you will be better prepared to take on existing competition as your business plan describes the marketing activities you will use to announce your opening, attract patients, and grow your practice. You will also have a jump-start on new competition - namely, all those graduates who have not yet formulated their career plans.
5) Forms the basis for an exit strategy
A business plan is not only a roadmap for you, but also for your potential buyers. It helps them understand how your practice evolved, whether it met or perhaps exceeded expectations, and whether your vision for future growth was realized. If you sell your practice before your business plan is fully implemented, it can serve as a useful guideline for future owners to further develop the practice. There are many more excellent reasons for creating a business plan - for example, to share your vision with family members and employees, build a framework to help attract new associates or investors, and provide a foundation for practice valuation. In summary, careful formulation of a business plan will help you focus your vision for the future and ultimately enhance your success. If you don't already have one, get started working on your business plan today.

Visit the Wells Fargo Works for Small Business® and the Business Plan Center page for more information: wellsfargoworks.com/plan.

About the Author
Greg Owens is the Regional Manager East for Wells Fargo Practice Finance. As an experienced consultant and finance expert, he speaks nationally to healthcare professionals advising in practice planning strategies for emerging and established practitioners. His industry background offers practitioners a unique perspective as they approach some of the most important decisions in their professional lives. With more than 25 years of healthcare experience, Wells Fargo Practice Finance specializes in helping healthcare professionals acquire, start and expand their practices with various financing options and a signature Practice Success Program.

Contact
Jeremiah Johnson
Healthcare Specialist
817-505-3641
Jeremiah.A.Johnson@wellsfargo.com

 

Member Spotlight with Managing Partner of Lasky Aesthetics, Terri RossOpen in a New Window

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

Alex: Congratulations Terri Ross on being selected AmSpa’s Member Feature of the Month! Tell us about your med spa, Lasky Aesthetics & Laser Center. What’s been going on?

Terri: Growth. Exponential growth. I’m really proud that we’ve hit the 3 million dollar mark in just 3 years. We’ve brought on new providers, new treatments and services, and really just learned how to perfect the infrastructure.

Alex: Lasky Aesthetics seems like a fairly laser-heavy practice. What’s the biggest money-maker treatment in your med spa right now?

Terri: Definitely Laser Skin Resurfacing, Alma Fractional, Skin-Tightening, and CoolSculpting.

Alex: Were these treatments a conscious choice of you based upon numbers. or was this just kind of the way that it happened?

Terri: Lasky is a little unique. Four Doctors own it and when they developed the business back in 2010, they all had their own practice off-site. They did their own injectables, so by default the practice became laser heavy. They kept their own patients. It was a grass-roots business at the time.

Well that failed. When they brought me in on 2014, the med spa was doing about a half million dollars. Realizing that we had to make a shift in the business infrastructure, I came in and really treated it like a start-up. I re-evaluated the overhead, the cost of goods, figured out what treatments were yielding the most money, learned what the patient market demand wanted, and decided what was best to do different.

Alex: Do you still offer injectables? Or, is it mostly laser treatments?

Terri: We do. It’s just a smaller percent of the business. But we’re finding that it’s allowed us to become a niche. We really are known for treating very difficult skin conditions. As a provider, if you don’t have that kind of a background or have years of experience as an extender, then you don’t have the skillset to diagnose. It’s blended well for us.

Alex: Okay, you can’t name yourself in this next question, but what do you attribute to being the number one factor of success for Lasky? #LLC

Terri: It’s honestly the hiring of impeccable staff and investing in them. We’ve heard this throughout the last couple of days here at the AmSpa Boot Camp, it’s about good staff. Having them trained properly, adequately understand what treatments you offer, customer service, and just business acumen. Whether it’s me or anyone else. This is not an easy business to be in. It’s highly competitive, especially in Beverly Hills. Utilize the resources that are available, especially with AmSpa.

Alex: That’s what we do here at AmSpa! Thank you Terri for your continued support and we wish you the best of luck in the future success at Lasky. 

Lasky Aesthetic & Laser Center is located in the heart of Beverly Hills, CA. Get the live tour here or schedule an appointment today!

Terri Ross will be speaking at the next AmSpa Boot Camp in Denver, CO May 19-20, on trending treatments and the expert consultation. Visit the event page here for more information and to register. 

 

Coming to Terms with Sales in Med SpasOpen in a New Window

If you were to create a Venn diagram displaying the relationship between retail sales and medicine, the overlap would represent the medical aesthetic industry. It’s a unique business model that requires the combined efforts of physicians who are experts at treating people and salespeople who excel at getting people in the door.

However, many physicians find the sales side of the equation difficult to engage with. Typically, doctors are taught that medical treatment is not a commodity to be sold—it’s something that is provided when needed. Therefore, when sales enters the equation, as it must in the medical aesthetic business, physicians tend to feel a bit skittish about it.

But sales, at its core, is about building trust and providing education, which in and of itself is not as pernicious as many medical professionals perceive. These people should not be afraid of selling, because all they’re really doing is providing information and building trust so that a patient can make his or her own decision regarding their care. They don’t have to engage in the sort of oily salesmanship they fear if they don’t want to.

For the purposes of medical aesthetic practices, sales are vital. Successful medical spas have established ways to attract and retain patients, and they involve everyone in the practice, from the physician to the receptionist. That requires sales, and it needs processes to work as efficiently as possible.

However, doctors and nurses may be hesitant to engage in sales, because they feel that by doing so, they are in essence forcing treatments upon patients. I’ve heard physicians say that they never sell to anybody, because they don’t believe selling medical treatments is appropriate and never want to feel as though they are using their expertise to profit from a patient who doesn’t know any better.

I can see why they would feel this way, but if properly practiced, selling is not exploitation. Effective sales and marketing is not about forcing anything on anybody. In fact, it’s the opposite—it’s building trust between the provider and the patient, and providing the patient with information so that the patient can make his or her own decision. When doctors are selling most effectively, they are giving their opinions and developing trusting relationships with their patients.

The most effective sales tool at medical spas is a very sincere belief in the services being provided, and that belief must also be shared by everyone working there. Everyone must provide all the information that patients need, so that the patients develop trust and feel comfortable. In time, they’ll make the decisions that are best for them. There’s nothing underhanded about this. Sales equals trust plus education.

Physicians who are skittish about sales should consider that if you’re doing it right, you’re not really “selling” anything—you’re simply giving the clients the tools to make their own choices. It’s absolutely vital that aesthetics practices have this in their toolbox and have a structure for it, because if they don’t, another medical spa absolutely will. Successful practices understand that sales in this space is about education, and they have ways to track what is resonating with clientele and what is not.

Doctors and nurses need to get over their fear of sales by recalibrating their perception of what it means to sell. Simply suggesting a course of treatment and providing supporting information is not nefarious if the doctor doing this genuinely believes in what he or she is saying. You don’t need to get down in the muck if you don’t want to. A physician who shoots straight and tells the truth is likely going to find more success than one who always says what the patient wants to hear in order to make a buck.

AmSpa’s Medical Spa & Aesthetic Boot Camps can teach you how you and your staff can look at your services differently, and can use sales techniques to ensure your patients achieve the best possible treatment results. AmSpa’s next Boot Camp is in Denver on May 19–20.

 

The Forgotten Generation - Med Spas and Generation XOpen in a New Window

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

These days, it is not at all unusual to hear experts talk about how certain generations of people are affecting business. You’ll hear about how the wealth of Baby Boomers impacts the economy as they enter their retirement years. You’ll hear about how Millennials are driving markets and marketing with their somewhat inscrutable spending habits. And you’ll hear about how Generation Z is getting things done using social media and moxie; we featured a look at Generation Z a few weeks ago, in fact.

However, you don’t hear a lot about Generation X—the post-Boomers who came of age in the late ‘80s, ‘90s, and early ‘00s. The youngest Xers are currently staring down middle age and, as boomers continue to retire, they are the ones who are going to be in charge, if they aren’t already. CNBC.com recently published this piece by Stephanie Neal and Richard Wellins, which describes how and why members of Gen X are quietly beginning to dominate leadership positions in businesses.

One of the key takeaways of this article is that while Millennials are typically considered to be the most tech-savvy generation to date, Generation X is, if anything, even more plugged in. On Facebook, Instagram, and YouTube, many of the “stars” are Millennials, but Gen Xers are just as connected—they always have a phone in their hand, and they’re always on the Internet. They don’t produce as much content as Millennials, but they’re just as adept at viewing and manipulating it. Many of them came of age just as the Internet did, and they played significant roles in its evolution. But because many of them began their careers when the internet played a much smaller role in business, they inherited many of the same character traits as the Boomers—they are industrious, hard-working, and entrepreneurial. They feature useful traits of the generations directly before and after them—a combination of the analog and digital, if you will.

As a result, and as a consequence of their age, Gen Xers are going to have an enormous impact on business—including the medical aesthetics industry—for the foreseeable future. They’re going to be running medical spas, device manufacturers, and marketing firms for many, many years to come, so their influence is underestimated at one’s peril. Consumers drive business, and since Millennials are such an enormous population, they’re very important in this regard. But many of the people running businesses and pushing them in exciting new directions are Gen Xers.

At AmSpa’s Boot Camps (join us in Denver on May 19 and 20) and The Medical Spa Show (save the date—February 8 - 10, 2019), the overwhelming majority of the medical spa owners I meet are Gen Xers. They’re in their upper 30s and 40s, and they’re getting things done. Understanding how these people think is going to be a key to finding success, especially in terms of establishing business-to-business relationships. So don’t sleep on Generation X—understanding them is going to be very important for a long time.

 

How Do I Pay My Med Spa Providers and Staff LegallyOpen in a New Window

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

Proper medical spa payment and compensation structure is one of the lesser known legal issues that successful medical spa owners MUST be familiar with. From a business standpoint tying employee pay to performance assures that a medical aesthetic practice can remain profitable while also allowing providers to maximize their earning potential. In retail, salespeople are often incentivized with commission—they receive a percentage of the sales they make that meet certain conditions set by their employers. The rationale is that when salespeople are given the opportunity to earn more money, they will work harder.

However, a medical spa is not a retail outlet. 

Despite its superficial resemblance to a salon or traditional spa, a medical spa has to play by a different set of rules and answer to different authorities, because its employees administer medical treatments. And in most states, if medical spa owners are paying employees commission, they are engaging in an illegal practice known as fee-splitting. It is important for medical spa owners and operators to understand this issue and its consequences in order to avoid big trouble.

The controversy

In most states, a patient who receives a medical treatment—such as many of the services provided at medical spas—is required to provide payment to a physician or a physician-owned corporation. (This doctrine is known as the “corporate practice of medicine.”) If these physicians or corporations give a percentage of that payment to a non-physician who was responsible for securing the patient’s business, they have engaged in fee-splitting.

AmSpa members can check their state legal summary to see if their state observes the corporate practice of medicine.

This practice is somewhat common at medical spas, and it typically doesn’t represent any sort of shady attempt to practice unlicensed medicine. The physicians who operate these establishments simply wish to reward the people who bring business to the practice. However, the fact remains that in many states it is illegal to engage in this practice, and doing so places both parties to the transaction at risk.

The consequences

If physicians are found to be engaging in fee-splitting in a state in which it is illegal, they could face the suspension or revocation of their license, as well as a significant fine. What’s more, the staff members who receive the commission payment are also subject to a fine. So if you are an aesthetician, registered nurse, nurse practitioner, physician assistant, or laser technician who is being paid commission, it is certainly in your best interest to find out if fee-splitting is illegal in your state; if it is, stop receiving these payments. If you are a physician who is giving commissions in a state in which fee-splitting is illegal, you should cease doing so immediately. 

This does not mean that medical spa employees cannot be awarded extra compensation, however. Physicians can establish structured bonus plans–such as the medical spa compensation plan in the AmSpa store–that can provide employees incentives and are perfectly legal in the eyes of authorities. These types of programs can be very lucrative for employees, and they will prevent all involved from incurring crippling penalties that can alter lives and end careers.

Also, if your medical spa engages in the practice of giving gift cards to clients, be advised that this can also be viewed as a form of fee-splitting, because these cards represent payment that is not made directly to a physician or physician-owned corporation. 

An exception
Viewed through an impartial lens, it would seem that using a deal site such as Groupon or LivingSocial to drum up business would represent a form of fee-splitting. This is because medical spa vouchers sold through these services—from which the service receives a percentage of the sale, a lot like a commission—can be used by customers to purchase medical treatments. However, several states have enacted laws that permit this, provided the medical outlet maintains a high level of transparency during the process. Again, check with your local health care attorney to find out the specifics of the regulations regarding deal sites in your state.

It is worth noting, however, that even if using deal sites in the manner described above is legal where your business operates, some in the industry consider such arrangements to be unethical. As such, you may be better off negotiating a flat fee with Groupon or LivingSocial instead of paying it a percentage. It is always better for a business to try to stay away from morally questionable practices, even if you are forgoing some money by doing so.

To learn more about medical spa business and legal best-practices attend an AmSpa Medical Spa & Aesthetic Boot Camp near you.

Sign up for AmSpa’s email newsletter to get medical spa industry and legal news directly in your inbox.
 

 

Med Spa Marketing: Testimonials & Reviews Are the Only Way to Market Your PracticeOpen in a New Window

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

When finding and attracting patients to a medical spa practice, the best med spa marketing tools you can ask for are reviews and testimonials from existing patients. Positive reviews don’t just grow on trees, though. You have to actively cultivate them in your everyday processes throughout every part of your business.

I love the above cartoon because it’s so true. People are most vocal when they are angry and unsatisfied, not when they are happy. Think about it: If you have a positive experience somewhere, chances are you’ll leave happy, maybe tell your spouse or a friend, and then you move on. Even if you think you’ll circle back and leave a review complimenting the good service, let’s be honest—chances are you won’t. It just doesn’t work that way psychologically. Even though we know we should do the right thing and post a positive comment, most of the time it doesn’t happen. You blink and a week has gone by, and next thing you know—out of sight out of mind.
 
But if you have a bad experience? That’s a different story. After some truly bad experiences, I’ve actually sat down and written letters to management. Not just an email or a post on a site, but an actual letter. On paper and stuff. People are much more likely to be vocal, motivated and industrious when they’ve had a bad experience than when they’ve had a good one. Again, it’s psychology. And in the med spa business this is even more important because we’re dealing with peoples’ appearance, and let’s be honest—there are some craaaaaazy people in this industry.
 
This is why it is so crucial that medical spas make collecting positive testimonials and reviews a part of their processes and systems. The best medical spas are not just diligent about this, they’re downright militant. Every person on the staff is part of this process, from the providers to the front desk staff. If a patient mentions that he or she is a happy and satisfied, it is the duty of the entire medical spa to ensure that a testimonial is taken and the patient knows exactly how to access the practice’s Yelp, Google+, Facebook, and RealSelf pages.
 
And you absolutely must get both testimonials for your website and positive reviews on all the applicable review sites. Testimonials on your website are a must because everyone—even if he or she is given a glowing verbal referral from a friend—will go to your website before they book. That’s just a fact. Positive reviews increase the likelihood that you’ll book a patient, because patients also always check out your reviews; perhaps more importantly, the more positive reviews you have, the less likely a negative review will stand out. And if you’re in business long enough, you’ll get a bad review. That’s also a fact.

Keep in mind that, while reviews and testimonials are very important, med spas are subject to strict advertising requirements and you need to be careful with what you post. Also, HIPAA/patient privacy is a potential issue with respect to reviews. Both should be dealt with carefully and med spas should always have a healthcare attorney take a look at their website to make sure they are being fully compliant. As a reminder, AmSpa members receive a complimentary 20-minute legal consultation with our partner law firm ByrdAdatto.

So to my medical spa friends, it’s vital that you create a specific process for getting testimonials and reviews. Don’t just tell your team it needs to be done—establish a protocol and hold them accountable. It’s part of their job, after all, and if you don’t do it, the entire practice will suffer. Use the front desk staff as the gatekeepers—no happy patient leaves without providing a referral. Track the number of referrals each team member gets, and reward each month’s top performer with a spa treatment, dinner, or night out.

Need more ideas? Come to an AmSpa Medical Spa & Aesthetic Boot Camp! Faculty experts Bryan Durocher and Dori Soukup share a ton of ideas on incentivizing your team. Click here to learn more about and register for AmSpa’s forthcoming Boot Camps. Make your plans today to join us in Denver in May, Dallas in July, Boston in September, Nashville in October, or Orlando in November.

 

Closing the Loop: Valuing and Selling Your Medical SpaOpen in a New Window

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

When a medical spa opens, its owners are probably not immediately thinking about selling it. However, medical spa owners and operators should always consider the value of their practices, so that when the time comes that they do want to sell, they can get more out of it than they put into it.

“When you’re looking at anywhere between a $250,000 and a $1 million investment to start up a med spa, I think it’s important before you go into that type of investment—whether you’re borrowing the money or financing the money or taking it out of savings or whatever—you really need to look at a return on investment and you really need to look at what your exit strategy is going to be,” says Louis Frisina, a medical spa industry pioneer who currently works as an investor, entrepreneur and business advisor, and who will be presenting “Closing the Loop: Valuing and Selling Your Medical Spa” at AmSpa’s Hawaii Next! Level Leadership event in Maui, Hawaii, on June 13 - 15, 2018. (Editor’s note: See the whole agenda and register here: http://www.americanmedspa.org/general/custom.asp?page=HINextLevel2018) “The whole concept behind [the presentation] can be summed up in one line: What am I doing today to position my company for sale tomorrow?”

Frisina has worked in the world of business finance for more than 30 years, and has been on the cutting-edge of aesthetics industry entrepreneurship for almost as long as the industry has existed. “Closing the Loop” will help medical aesthetics industry professionals consider how what they do with their practices make them more or less attractive to prospective buyers.

“I’ve visited close to 2,000 aesthetic medical practices around the world in the past 20 years, and I have been—and continue to be—involved with what I call the best practices out there; the top one or two percent in the country in terms of medical spas and also aesthetic medical practices, which could be a med spa that’s bolted onto a plastic surgeon or a dermatologist,” Frisina says. “With all of the experience that I’ve had, I’ve been able to figure out what best practices do to earn top dollar some years later when they’re ready to sell.”

The first part of the presentation will cover the characteristics of attractive medical spas.

“If you want to position your practice today to optimize the most that you can get in the future, you’ve got to be looking at what best practices did,” Frisina says. “Those marketing, operational, and human resource activities and things that they’ve done in their med spas that have led them to get the best price they possibly can.”

The second section of “Closing the Loop” will help medical aesthetics professionals determine what their businesses are worth. If a medical spa invests in the things discussed in part of the presentation, they can command a higher sale price than those that do not.

“They’re running it like a business and they’re optimizing their business for success today,” Frisina says. “When they’ve done those things, they’ve basically created a scenario where they will get the best price when and if they’re ready to sell.”

The third and final section of the presentation looks at a medical spa’s value from a prospective buyer’s point of view. What you see as your practice’s value might be very different from what a buyer sees.

“Because I’m on the side of both buying and selling companies, from the point of view of a buyer like me, acquiring on behalf of a client, what am I looking at?” Frisina explains. “This involves a bunch of financial information that I require—I look at three years of historical tax returns, I look at a number of financially related issues relative to their income statement, relative to their balance sheet. Because, ultimately, if I’m going to pay them a price for their practice, I have to get that money back at some point, hopefully over a five-year period of time.”

AmSpa’s Next! Level Leadership event will take place at the The Grand Wailea, a Waldorf Astoria Resort in Maui from June 13 to 15, 2018. Click here to learn more and register today. 

 

Medical Spa Success Means Facing Your FearsOpen in a New Window

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

I have a mantra that I say to myself often—“Do that which you are afraid to do.” I didn’t always think this way; in fact, facing my fear is something I struggled with at the beginning of my career and had to take steps to overcome. Everybody has fear, but if you walk toward the things that cause you to be afraid, you can go farther than you previously imagined.

In AmSpa’s latest Medical Spa Insider podcast, industry experts Louis Frisina and Tim Sawyer spend some time talking about how they overcame fears early in their careers, and how it was one of their keys to success. “What happens with anything in life that you fear,” said Sawyer, “once you conquer that, that becomes your nirvana. Because you walked in fear of it, you overcame it, and now you own it.”



Most of the time—in business and in life—you will find success if you can overcome the things that make you afraid. People often are afraid to open their own businesses, because they’re scared of the financial investment and relatively high rate of attrition. They’re scared to pursue a particular marketing angle because it costs too much money or it goes against traditional marketing tactics.

Sometimes, when you have an idea or are presented with an opportunity, you begin to pursue it and fear takes over. It causes you to pause. You have a gut feeling that tells you that the direction that frightens you is the right way to go, but for whatever reason, you’re disinclined to make that commitment. It’s that one second when you’re getting ready to step into uncharted territory and you suddenly second-guess everything that you know to be true. When you’re in business, you need to overcome that fear. In my experience, most success comes on the other side of it.

Entrepreneurs who can recognize the moment when that fear takes place tend to be more successful than those who can’t. Many times, people are so egotistical or ignorant that they don’t even identify this moment when it occurs, so they blindly move in a different direction. A good businessperson, on the other hand, will understand that it’s a project worth pursuing, even though he or she is a bit afraid of the commitment it will require, and take the necessary steps to actually work through it. 

This can be the difference between success and failure, and it’s a very thin line. Those who waver just a bit and wait to see how things develop before pursuing a course of action likely will never convince themselves that there’s a good time to act.

In almost every industry, you can identify the people who have the guts to walk toward the thing that frightens them. They put in the time and work it takes to overcome the fear in their minds and the objections of others, and in many cases, they end up becoming much more successful than the people who were telling them to give up on a particular pursuit.

At AmSpa’s Boot Camps, we teach medical aesthetics professionals how to succeed in this industry. Facing your fear is a big part of that, because there is so much competition that you really need to be determined and take that scary step into the unknown, because if you’re in it, you need to be in it to win it. You can’t go halfway, because there is no doubt that if you don’t pursue a new and exciting direction at your medical spa, one of your competitors will.

Click here to learn more about our upcoming Boot Camps and to register to join us at one. We can’t make facing your fear any easier for you, but we can help you learn how to recognize turning points and address them with the confidence you need to move forward in the medical aesthetics industry.

 

Medical Spa Insider: The Most Overlooked Must-Haves in Medical Spas According to Louis Frisina and Tim SawyerOpen in a New Window

 

Medical aesthetics experts Louis Frisina and Tim Sawyer, President of Crystal Clear Digital Marketing speak on a wide range of topics including the main blind spots of people entering the medical spa industry, their biggest driving fears at the beginnings of their careers, and much more!

Louis Frisina is a medical aesthetic luminary who is, among other things, credited with introducing Restylane to the American market. He now runs a consulting firm and a hedge fund, both targeting this booming industry.

Tim Sawyer is Founder and President Crystal Clear Digital Marketing, one of the premier digital marketing firms in the medical aesthetic space.

Both will be presenting at the upcoming Med Spa Boot Camp in Los Angeles, CA April 7-8. Register here!

 

AmSpa Member Spotlight with Rejuvenate Med Spa Founder, Christina ImesOpen in a New Window

 

AmSpa Founder, Alex Thiersch, interviews Founder and Operator of Rejuvenate Med Spa in Oak Brook, IL., Christina Imes, about how she opened her med spa after attending one of AmSpa's Med Spa & Aesthetic Boot Camps.

Get to know Rejuvenate Med Spa Founder, Christina Imes

"When I was a little girl I loved to play board games all the time with my friends. Before they would arrive I would take all the pieces out of the box, and have the game ready. I'm not one for reading directions entirely, so each time we played the game would be different. I basically made it up as we went. Each slide, marble and ball trap in the Mouse Trap game representing whatever I wanted for that day. Each little carload of pink and blue pegs in the game of Life meaning something different every time we played. Of course, some of my friends had played these same games at their homes, and they did read the directions thoroughly. I was typically able to convince my friends that my way was better, and besides I was in charge.

Not until recently had I thought about how much one can learn about their personality from owning and running a business. Many of my employees would be able to tell you for example that I make decisions quickly (very impatient); I have a hard time admitting I'm wrong; and I'm much more of a big-picture thinker. Oftentimes personality traits are divided into good and bad. I realize that sometimes traits can be described as bad for some and good for others. 

In the 2 ½ years that Rejuvenate Med Spa has been open I will tell you that impatience and the need to be right all the time are not so great for my business. Impatience led me to purchasing a $3,000 software program before totally doing my due diligence. The software turned out to be garbage, and the investment was a waste! I hired an esthetician not long ago even though my business partner told me he thought it was a mistake. "No, no I said. You wait and see. She will be great." I too had a sinking feeling it wasn't going to work, but my ego got in the way. Fortunately I did fire her after only a couple of months. However, once again money wasted.  Weaknesses are hard to run from when you own a business. They weave themselves into every aspect of your business if you're not careful, and become glaringly obvious when they affect the bottom line.

With 2017 just ending, I was writing down my goals for the med spa. I began to look back at the mistakes I made in 2017, and realized they all stemmed from my individual, distinctive character. My class at Goldman Sachs pushed me to hire people who are good at things that I find challenging or unrewarding, but I need constant reminders to be conscious of these behaviors that can be detrimental to my business. Personality traits define us and can be very challenging to change. Some psychologists believe personality characteristics largely stop changing around the age of 30. 

I surround myself with friends and employees who hold me accountable, and feel comfortable enough to come to me when I do something they don't love. I won't say I always agree with them, but it definitely helps knowing I have people in place who care about the success of my business as much as I do. Revenues in 2017 were up 40%, so we are doing something right! Yoga and meditation have also been excellent tools for me in learning to release the patterns of the past.

I hope my fellow scholars are able to find tools that allow you to stay focused on your strengths. I also wish that your businesses continue to prosper no matter how many little pink and blue pegs are in your car."

Get the LIVE tour of Rejuvenate Med Spa Here!

 

Med Spa Best Practices: Measuring and Tracking Your SuccessOpen in a New Window

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

Success in the medical aesthetics business depends on a number of factors, from effective marketing to efficient employees to reliable equipment. However, if a medical spa is not properly tracking everything that is going on at the practice, it is impossible for its owners and operators to truly understand what is going on there.

Good medical spas track everything. Simply put, if you can’t track, you can’t measure; if you can’t measure, you don’t know what’s working and what’s not; and if you don’t know what’s working and what’s not, you can’t make informed decisions when it comes time to determine what to do next.

Essentially, if you don’t understand how and why something is working, it’s not really working for you. There’s no way its success can inform your future decisions, because you don’t have enough information to tell you what’s actually going on.

For example, say an aesthetician is earning significantly more money than other employees, despite the fact that he or she is providing exactly the same services as everybody else in the practice. Is it something he or she is doing differently than everybody else in the practice? Is it related to the hours he or she works? Is it just plain old dumb luck? If you’re not tracking everything that happens at your practice, you have no way of knowing, and that puts your business at an enormous disadvantage.

Some of the factors tracked by top medical spas include:
Dollars per hour per treatment per provider;
Dollars per hour per provider;
Margin per treatment per provider;
Return on investment per provider;
Return on investment per equipment;
Conversion rates; and
Return on investment on email campaigns, marketing campaigns, social media.

This might seem like micromanagement, but I promise you that no effective business, medical spa or otherwise, leaves these aspects of their enterprise up to chance. For example, if you find that the laser equipment you purchased isn’t providing the return on investment you’d expected, you won’t be tempted to spend more money in that area of your practice because you’ve discovered that it probably isn’t worth it. 

Likewise, if you find that a direct mail campaign is significantly more effective than a Facebook campaign despite the former costing much more to conduct, you can allocate your marketing resources in a way that brings your practice the maximum possible return on its investment.

At the American Medical Spa Association’s Medical Spa & Aesthetic Boot Camps, we spend virtually the entire two days showing attendees different ways to track and measure all aspects of their businesses, including retail sales, medical treatment, and marketing. Join us at our next Boot Camp, which takes place at the Marina del Rey Marriott in Marina del Rey, California, on April 7 and 8, 2018. If you can’t make it to L.A., consider joining us at one of our other Boot Camps this year—we’ll be in Denver in May, Dallas in July, Boston in September, Nashville in October, and Orlando in December.

Click here to learn more and register now.

Your business can’t improve if you don’t know what’s working and what’s not. You have to track, measure, review, change, and repeat. AmSpa can help, so we hope to see you soon.

 

Long-Term Medical Spa Market Research: Generation ZOpen in a New Window

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

The industry impact of Millennials as medical spa patients is just beginning to be felt, as “The Selfie Generation” currently accounts for about 20% of aesthetic patients. As this demographic ages it promises to offer a lot of potential clients as the growth of social media has led to increased comfort with the idea of medical aesthetic treatments, causing the average age of first treatments to plummet for many procedures. For all of the possibilities presented by this age group, the digital natives of Generation Z present even an greater opportunity in the long run.

Generation Z is typically defined as beginning with people born in the mid-to-late 1990s, so the oldest Zers are currently in their late teens. It may be difficult for many of us to imagine, but most of Generation Z cannot remember a time before 9/11. They grew up in a world where the U.S. has always been at war, where a crippling recession caused by corporate greed cost millions of people their jobs and livelihoods, and where deep-seated political turmoil is a fact of life. 

They’ve been raised on technology and know how to use social media more effectively than anyone else, but while Millennials are (probably unfairly) seen as being more passive and self-interested, Generation Z seems determined to fix the problems caused by those who came before. It also is worth pointing out that Generation Z is a larger group than the Millennials.

Of course, it also should be noted that they also have very short attention spans, and their independent mind-sets can sometimes lead to problems, but these quirks are part of the package and, sooner or later, everyone is going to need to learn how to deal with it.

In the context of the medical aesthetic industry—and every other business, quite frankly—it is important to learn what matters to Generation Zers. Today, the majority of marketing is still directed at Baby Boomers, Generation X, and Millennials, and for good reason, since these groups are the ones that are earning (or have earned) money to spend. But in the very near future, Generation Z is going to be flexing its financial muscle and, when it does, it’s going to make an enormous impact on the economy.  Therefore, it is up to businesspeople to do whatever they can to find out how best to market to Zers.

Unfortunately, that information isn’t necessarily available yet, since Generation Z is only now beginning to enter the workforce en masse, but medical spa owners and operators should at the very least be aware of the seismic shift that may be on the way and do whatever they can to keep track of emerging trends in Gen Z business. AmSpa will of course be following this story from a medical aesthetic perspective, and you should check out publications such as Inc to learn about broader business trends.

Businesspeople underestimate these young people at their peril, so be sure to learn all you can about them.

 

Medical Spa Insider: Terri Wojak on Her Career in Aesthetics, Advocacy, and Working with Plastic Surgeon Steven DayanOpen in a New Window

 

AmSpa Founder/Director Alex Thiersch and Director of Operations Cathy Christensen sit down with their long-time friend Terri Wojak, LE/President of True U Education.

They discuss her book, Aesthetics Exposed (with an update on the horizon!), her career in aesthetics, her work advocating for aestheticians, working with world-famous plastic surgeon Steven Dayan, and more!

Terri Wojak will also be presenting on selecting the right treatments for your med spa at the Rosemont Boot Camp next weekend, March 10th-11th. Register here! 

 

Letter From the Director: Thank You!Open in a New Window

Alex Thiersch here, director of AmSpa. I’m back from AmSpa’s first ever Medical Spa Show and, after sleeping for 3 days straight, I wanted to reach out to all of you and say THANK YOU to each of you who attended. The turnout and feedback we received was absolutely overwhelming and I couldn’t be prouder of everyone who turned up to show their support. Anyone who was there can attest to the fact that the energy at the meeting was palpable. And the most exciting thing to me wasn’t the speakers (which were incredible), the diverse and engaged exhibitors (all of whom brought their A game), or even the absolutely incredible facility (Aria has to be one of the coolest resorts in the US). 


No, the thing I was most proud of was you, the attendees. How incredible was it to FINALLY get everyone in the industry together, in one place, for an event that was dedicate solely to med spas? We had nearly 250 med spas represented from all over the country (even Canada, Chile and Africa!), from all different walks of life, representing an incredible array of innovation, technology, grit, and entrepreneurship. And again…the energy, the excitement about the future, and the goodwill of all who were there was truly overwhelming. I’ve been to many conferences, and I have to tell you I have never experienced a group of people so engaged with one another, so excited to be part of something, but most of all, so nice. This industry is on rocket fuel right now, and so long as all of you continue to pour your heart and soul into growing into a profitable, safe, compliant industry, I promise that we at AmSpa will put all of our resources to bear to support each and every one o f you. I couldn’t be prouder to be a part of it, so thank you, each of you, for your participation in the meeting.

I did want to plug our Boot Camps since many of you have asked about them. For those of you who haven’t been, AmSpa has been putting on Medical Spa and Aesthetic Bootcamps for three years now. These are different from the Medical Spa Show in that they are two days of extended, intense training in an MBA-style format. We limit the number of attendees and offer extended periods for our speakers to teach – 60 to 90 minute sessions, minimum. Many of the incredible speakers you saw at the show are there to teach you everything they know about how to run a profitable aesthetic practice. Regardless of whether you are open, getting ready to open, or just thinking about opening, I can’t recommend enough coming to a Boot Camp. But beware – it’s an intense two days, and you will leave absolutely exhausted, filled with information, but incredibly pumped up to move forward. And if anyone has any doubts, we are more than happy to refer you to over 300 satisfied customers who have attended, any one of whom will be happy to discuss their experience. 

We’re kicking off our Boot Camp season in Rosemont on March 10-11 (this is the city that O’Hare Airport is located in Chicago, so it’s super easy for anyone in the country to get to … it’s being held at the Hilton Rosemont, which even offers a shuttle to and from the airport), and have six other dates planned. With our increased membership and the attendance at the Medical Spa Show, these dates are already filling up and they will sell out. So check your calendar and sign up right away because we don’t want anyone to miss out!

Thanks again to all of you, and we look forward to a strong and successful 2018!

 

The Value of NoOpen in a New Window

 

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

When you visit a grocery store and peruse the cookie aisle, you might be surprised to find that where there used to be just a few varieties of Oreo cookies, there are now several, including some that seem somewhat bizarre. (Swedish Fish Oreos, anyone?) Similarly, a stroll to the liquor department reveals a wide variety of flavored vodka, whereas previously the only flavor of vodka was… well, vodka. Finally, when you look at the candy at the checkout counter, you’ll find that among the tried and true chocolate bars and fruit chews, there are at least a few new selections that you’ve never seen before, and chances are they’re produced by established companies.

For enormous multinational corporations like the ones that manufacture these products, it’s understood that more is more. With Oreo, for example, as long as its classic chocolate and vanilla crème sandwich cookies continue to sell, the company will be fine, and it can afford to say yes to strange limited-run flavors such as Peeps Oreos. But most companies are not in this position, so business owners—including medical spa owners and operators—need to understand the value of saying no.

People are taught that being adventurous is a good thing—that if you say yes to every opportunity presented to you, you’ll live a fuller, more audacious life. In business, however, this can be a risky tactic. The Harvard Business Review website recently posted an article titled “The Art of Strategy Is About Knowing When to Say No,” by HubSpot co-founder and CEO Brian Halligan, that illustrates the circumstances under which conscientious businesspeople should consider saying no to an idea that is presented to them, even if it seems like a good one. This is excellent advice for those in the field of medical aesthetics.

Consider this: If your medical spa is making good money with injectibles, it might seem like a natural next step to buy a CoolSculpting machine or two and expand your menu. But unlike Oreo, a medical spa has a finite amount of resources, and unless you know your market is teeming with people who want CoolSculpting and can’t get it anywhere else, you’re taking a major risk by diverting employees and marketing capital from a successful area of your business to something that, while potentially lucrative, is totally unproven.

This might seem antithetical to the common idea that a business should always be looking to expand, but in reality, there’s nothing at all wrong with passing on an opportunity like the one mentioned above, particularly when you’re trying to gain market share. You need to understand what you want to achieve with your business and stay focused on that instead of altering your vision every time a bright, shiny new opportunity comes your way. If buying a CoolSculpting machine and expanding your menu fits into your business plan, then by all means, go for it. But if you feel the risk outweighs the potential reward, there’s nothing at all wrong with saying no.

If you’re interesting in discussing business issues like this and many others with leading medical aesthetic industry professionals, you should definitely plan on joining AmSpa at one of our Medical Spa & Aesthetic Boot Camps this year. Click here to find out when we’re coming to a city near you and sign up to take part in this excellent educational opportunity. We hope to see you there!

 

A Last-Minute Preview of The Medical Spa ShowOpen in a New Window

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

As you can imagine, we at the American Medical Spa Association are very excited about the upcoming Medical Spa Show, which we will present at the Aria Resort and Casino in Las Vegas from Friday, Feb. 9 to Sunday, Feb. 11, 2018. The show will offer attendees the opportunity to learn more about the industry in four concurrent educational tracks, interact with other medical spa professionals from around the country, and evaluate the wide variety of products and services presented by the top vendors in the medical spa and medical aesthetic industry. 

The educational opportunities include:

The General Session, which will provide a broad, wide-ranging overview of the medical aesthetic business, presented by successful industry professionals. Saturday morning’s sessions will all be on this track, and we recommend medical spa owners check out these sessions.

The Clinical Sessions will offer talks and demonstrations of a number of new treatments from some of the best clinicians in the industry. These sessions will provide invaluable information for a medical spa’s clinical staff members.

In Supplier Classes, attendees can hear about cutting-edge products and services directly from the suppliers themselves. If you are in search of new equipment or products that will help set your practice apart from your competition, you may very well find it here.

CEO Training, presented by Crystal Clear Digital Marketing, will be presented on Saturday afternoon and is designed to teach you how to make your practice the best it can be with advanced marketing and customer relations techniques. If you want to make sure your medical spa has the most useful exposure it possibly can, this information could be critical.

Sales and Staff Training, which is presented on Sunday, will teach your medical spa’s staff members how to more effectively sell and relate to your medical spa’s patients. This particular skill set is somewhat undervalued by medical aesthetic practices, but the ones who incorporate it effectively are models for the entire industry.

In addition, Meagan Kennedy of Fleek Brows Microblading Training, based in Orlando, Florida, will present a microblading training workshop from 8:45 a.m. to 4:45 p.m. on Friday, Feb. 9. Microblading has becoming one of the most popular treatments available in the medical aesthetic space, and if your medical spa doesn’t offer it, this seminar will help you and your employees learn how it is done and how it can benefit your clients.

And if you think this show will be all work and no play, think again. On Saturday night, AmSpa—in association with our sponsors Crystal Clear Digital Marketing and Care Credit—will present a spectacular party where you can connect with other industry professionals in a setting that only Vegas can provide. 
Enjoy dinner and passed hors d'oeuvres cooked up by the Five-Diamond kitchen at the Aria Resort & Casino!
Hit up the open bar and sip on a Doctor's Order (a custom version of the Moscow Mule served blue through an ice luge) courtesy of CareCredit!
Trade notes and stories about the show, or about the industry with professionals just like you!
Work off the day's stress on the dance floor with tunes courtesy of electric violinist and DJ Lydia Ansel! 

Happy hour begins at 6 p.m., and the party begins at 7 p.m.

And finally, we’re presenting a prize game with some fabulous giveaways, including a trip to Hawaii in conjunction with AmSpa’s 5th Anniversary Next Level Leadership Event we’ll be presenting there in June. Simply visit all our exhibitors and have them sign off on it using the Medical Spa Show app in order to qualify.

We hope to see as many of you as possible at The Medical Spa Show. This is one of the fastest-growing industries in the country, and we hope that this event will help those working in it learn how to make the most of it and have a great time in the process. We can’t wait to share this experience with you!

 

AmSpa Launches New Medical Aesthetic Podcast SeriesOpen in a New Window

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

Medical spa business and legal advice and tips are things many places around the Internet claim to offer. Very few of them, however, can back up that advice with actual expert opinions. Helping medical spa owners and operators learn about the industry and improve their businesses are the primary goals of the American Medical Spa Association (AmSpa), and to that end, we’re introducing a new podcast series that is designed to both educate and entertain.

Listen to the first episode below.

Subscribe on iTunes.

This series features conversations with successful entrepreneurs in the business of aesthetics. We’ll talk to them about their experience, their stories, their backgrounds, and their success, and we’ll ask them for advice about what it takes to be successful in the business. We’re planning to have a number of well-known guests, but we’re also going to pursue interviews with businesspeople who are just getting started in the medical spa industry, as they have extremely valuable perspectives to offer as well.

However, these conversations are not going to be stuffy, all-business conversations—we want to create a more relaxed atmosphere in which we and our guests can have some fun and demonstrate our personalities. Our first episode, for example, was recorded over drinks at a bar in Dallas. We might not use this as the setting for every episode—the sound quality is less than ideal due to the background noise, for example—but I think the finished product demonstrates what a good time we had that evening and offers the sort of industry insight that you can’t get anywhere else.

The first episode features a conversation with Terri Ross, managing partner and director of Lasky Aesthetics and Laser Center in Beverly Hills, Calif. Terri’s business expertise helped to increase Lasky’s revenue by 500 percent in her first 18 months with the company, so her insight is not to be taken lightly. Terri has also worked for companies such as Zeltiq, Medicis, EMD Serono, and Johnson & Johnson, so she also possesses a breadth of knowledge that is very impressive.

AmSpa Executive Director of Operations and Communications Cathy Christensen, ByrdAdatto Partner Bradford Adatto, and I spoke with Terri about a wide range of topics, including her experience in the medical aesthetic industry, her thoughts about how to hire talented people who will continue to add value to a medical spa for years to come, the treatments that have brought her and her medical spa the most success, and management techniques that help her operate her business at peak efficiency. And on the lighter side, she relates some funny stories about her time in the industry, and I reveal myself to be an expert on scrotox.

We hope you’ll join us for this series. The first episode was a lot of fun to make, and I think you’ll enjoy it and learn something too. We will release new episodes as we make them, so the schedule may be a bit erratic, but we hope you feel that they’re worth the wait. When you see us out and about—such as at The Medical Spa Show in Las Vegas from Feb. 9 to 11—let us know what you think about the podcast and what you’d like to see from it in the future.

Sign up for AmSpa’s email newsletter
to find out when new episodes drop, and to read about industry news and updates from the American Med Spa Association.

 

 

 

 

3 Tips for Opening a Medical SpaOpen in a New Window

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

There’s more to how to open a medical spa than just being an excellent medical aesthetic practitioner. Of course that is important, but there are basic business and legal compliance steps you also need to take to make sure you are successful in the long term. In 2017, we at the American Medical Spa Association (AmSpa) educated more than 300 medical aesthetic professionals on business and legal best-practices in the industry, approximately 70% of whom were just getting into non-invasive medical aesthetics.

When you’re starting out in the medical aesthetic business, it can seem like you need to learn about an overwhelming number of concepts, from effective retail strategy to regulatory compliance. Attending an AmSpa Medical Spa & Aesthetic Boot Camp can be extremely advantageous, because you can obtain a great deal of information in a short period of time. Here are previews of three very general things you need to do when you open a medical spa (you can learn more about each one at a Boot Camp near you.)

1. Draft a business plan

Business plans can be a real pain to create, but they are an important exercise. Creating a business plan requires you to think critically about details, such as: 
What your marketing strategy is going to be;
What your market is going to be;
Who your typical customers are going to be—how much do they make, are they male or female, how old are they, etc.;
Where you’re going to be located; 
What your brand is going to look like;
What the customer experience is going to be;
How much money you have;
How much money you’re going to spend;
And so forth. 
When you do this and then build it out for three to five years with a budget in a pro forma format, it gives you a good idea of how much money you’re going to need in order to actually operate your medical spa before you profit. 

2. Work with an accountant or financial planner

When people start businesses, they often don’t know how to read and understand financial reports. Even I came up short in this regard when I started my first business. However, it is crucial that you learn how to do this. You need to know what a profit-and-loss statement is (a P&L), what a balance sheet is and how to make a proper budget, as well as understand what different metrics mean so that you can track your progress, make informed decisions, and plan for the future.

I tend to think that most entrepreneurs are just winging it, and sometimes that’s okay, but often it ends up leading to real disaster. Therefore, it’s vital that you get a grip on this aspect of your practice, generally by consulting with someone who has specialized training in business finance. An accountant or financial planner certainly can help with that.

3. Consult with a local health care corporate attorney

A local health care attorney will help you understand the regulatory issues facing medical spas. I am a lawyer, so you might view this as somewhat self-serving, but the truth of the matter is that medical spas are running afoul of regulatory agencies more and more, as we’ve highlighted in this space in recent weeks, so it is a very real issue. You’ll end up spending far more money fixing problems that you create by doing things incorrectly than you will if you first engage a lawyer who knows what he or she is doing.

As a rule of thumb, you should expect to spend $15,000 to $20,000 in legal and accounting fees during your medical spa’s first year in existence. That will go toward creating the company, ensuring that you’re compliant, creating contracts, creating consent forms, establishing standard operating procedures, and so forth.

You can learn more about these and many other topics at AmSpa’s Medical Spa & Aesthetic Boot Camps in 2018. Click here to learn more about how you can join us at a Boot Camp this year.

In addition, if you attend The Medical Spa Show in Las Vegas from February 9-11, 2017, you enter a raffle to win an all-expenses-paid trip to Hawaii for our Next Level Leadership event from June 13 to 15. Click here to learn more about The Medical Spa Show.

 

The FDA and Medical Aesthetics: 2017 Regulatory RoundupOpen in a New Window

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

In recent months, the U.S. Food and Drug Administration (FDA) has begun to focus in on the medical aesthetic industry with a number of rulings on products and procedures, as well as some enforcement efforts. Here’s a quick rundown of the stories from just the past few months:


On September 15, the FDA issued a guidance document that suggested that in the near future, it will begin regulating the use of in-home microneedling devices to prevent injury to consumers.


In October, the agency raided a number of pharmacies in Florida that helped customers order relatively inexpensive prescription drugs from Canada and overseas. This may represent a reversal of a long-standing “non-enforcement” policy regarding this particular form of parallel importation. 


On November 14, the FDA warned consumers and health care practitioners about serious injuries and disfigurement that can result from the illegal use of injectable silicone or fake dermal fillers.


Also in November, the agency issued a consumer update expressing concern about stem cell treatments that are potentially harmful to patients. In it, the FDA outlines its stance on stem cell treatments and offers advice to those seeking them out.


On December 11, the FDA issued three policy papers designed to clarify its approach to the evolving oversight of digital health tools, including fitness trackers and patient support software. This is an advancement of the agency’s Digital Health Action Plan, which was introduced in the summer.

The FDA has also issued approvals for a number of products used medical esthetic treatments.


Merz North America’s Describe PFD patch was approved for use with all tattoo removal lasers; this patch is positioned over tattoos prior to laser removal, enabling multiple rapid laser passes in each treatment session. 


Aclaris Therapeutics’ Eskata (hydrogen peroxide) topical solution has been approved for the treatment of raised seborrheic keratoses


And perhaps most significantly for the medical esthetic industry, Allergan’s Botox neurotoxin has been approved for the temporary treatment of forehead lines.

Given the FDA’s recent increase in activity that could affect med spas, we feel it is important to hear directly from the agency regarding its enforcement efforts. To that end, we have booked Dr. Sangeeta Chatterjee, branch chief in the division of supply chain integrity, to speak on February 11, 2018, at The Medical Spa Show, which will take place at Aria Resort and Casino in Las Vegas. Dr. Chatterjee’s presentation will cover:


Threats to the U.S. drug supply chain;


Public health risks and potential legal consequences associated with purchasing unapproved prescriptions drugs from unlicensed sources;


Safe purchasing practices to ensure the drugs administered to patients are safe, effective, and FDA-approved; and


How to recognize drugs that may be counterfeit or not approved by FDA.

Registration for the show is currently open; click here to learn about the various registration options for the show, see the full schedule, and find out how to reserve a room in AmSpa’s room block at the Aria. Sign up for AmSpa’s email newsletter to continue to get the latest news on medical aesthetic regulations directly to your inbox

 

Medical Spa & Aesthetic Laws and Regulations Matter More Than EverOpen in a New Window

 

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

 

In November 2017, Surfside, Florida, police arrested Alicia Giser, an employee at Lemel Medical Spa, who was accused of practicing medicine without a license. Working off a tip from the Florida Department of Health, Surfside and Miami-Dade County police conducted a sting operation in which Giser represented herself as a doctor and agreed to administer a Juvederm treatment to an undercover officer. Giser has claimed that she is a doctor in her native Argentina, but Florida officials assert that she is not licensed to practice medicine in the state of Florida.

 

Giser’s case is an example of the kind of thing that’s existed in the medical aesthetic industry for many years, but which regulatory agencies have typically been unable or unwilling to police. That is no longer the case, and it could signal a major change in the status quo for the future.

 

This time of year, it’s fairly common for people to ask me what trends I think will help shape the medical aesthetic industry in the coming year and, for the past few years, I’ve told them that a rise in regulatory enforcement could play a major role in the industry’s evolution. I sense that enforcement efforts are increasing throughout the nation, so if your medical spa or medical aesthetic facility is not thoroughly compliant, you should do whatever you can to correct that as soon as possible. (AmSpa members have access to their state’s summary of laws governing aesthetics, and a complimentary introductory compliance call with an aesthetic healthcare attorney from the law firm of ByrdAdatto.)

 

In Florida, for example, there have been a number of high-profile regulatory violations—including the one in Surfside in the recent past, as well as more of the “mundane” cases where people get in trouble for offering procedures they are not qualified to perform—than I can remember seeing before. New York has also been cracking down on medical spas that are not compliant. The lens is focusing ever more closely on this industry, which is not surprising, given the explosive growth it has experienced in recent years.

 

Regulatory bodies in states such as Texas, Virginia, New York, New Jersey, Illinois, and Arizona are actively creating, amending and clarifying legislation in order to better define what is and what is not allowed in a medical setting. This was recently true for the state of Illinois, which amended its nurse practice act to allow nurse practitioners to achieve full practice authority, giving medical spas in that state a better idea of how to utilize their employees. Also, the Georgia Composite Medical Board recently created a state licensure procedure for laser technicians. 

 

As an industry we need to be compliant, we need to self-regulate, and we need to get our own house in order so that we appear credible and legitimate to regulatory agencies, other powers that be, and consumers. The violations that have been seen in Florida, Texas, New York and other states in recent months are the start of a wave of enforcement that I expect will shape the industry in the coming years.

 

Remember, ignorance is not an excuse, and it is up to you to make sure that your medical spa meets your state’s standards.

 

Sign up for AmSpa’s email list to stay on top of changing medical aesthetic regulations, and for tips on how to get the most out of your aesthetic practice.

 

Legally Compliant Medical Spa Events to Keep the Holidays HappyOpen in a New Window

By Alex R. Thiersch, JD, Founder/Director 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 or nurses—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!

 

Make Your Plans to Attend AmSpa’s Medical Spa Show in Las VegasOpen in a New Window

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

The American Med Spa Association (AmSpa) is working hard to put the finishing touches on planning for The Medical Spa Show, the premier trade show for non-invasive medical aesthetics, which will take place February 9 - 11, 2018, at the Aria Resort and Casino in Las Vegas. We recently mailed the program to AmSpa members, and you may already have received it; if not, please contact us—we will be happy to mail you one, or you can check out the PDF here. AmSpa has developed a very strong agenda that offers real insight into cutting-edge treatments, including microblading, new techniques in fillers and Botox, platelet-rich plasma (PRP), stem cells, and more.

 

It is very important to note that The Medical Spa Show’s room block at the Aria is very close to being full, so if you are planning to attend and wish to take advantage of the special rate we are offering in conjunction with the resort, you need to register for the conference and reserve your room very soon. The room block will sell out, and we want to make sure everybody who wants to stay at the Aria gets the chance. Along with that, Chinese New Year is a huge occasion in Vegas and all resorts in the city regularly fill up during the time of The Medical Spa Show, so it is urgent that you make your reservations now. Click here to register for the conference; upon registration, you will receive information about the room block.

 

Also, the expo hall is completely sold out. It has sold much quicker than we ever could have anticipated. The Medical Spa Show is welcoming an incredible array of exhibitors from all different verticals in the industry, from injectables to lasers to digital marketing, and everything in between. Learn about all the latest trends and opportunities available to the medical aesthetics industry on our show floor. Check out the list of exhibitors here

 

Thank you to everybody who already has registered to attend. The entire AmSpa team is very excited to present the best show in the country for medical spas. We can’t wait to see everybody there!

 

‘Tis the Season: Gift cards for Medical SpasOpen in a New Window

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

Medical spas typically see an uptick in sales of gift cards during the holiday season. And although selling or giving away gift cards may seem like simple transactions, the fact that medical spas are medical institutions does complicate matters a bit from a legal standpoint. Following are a few things about distributing gift cards that medical spa owners and operators should keep in mind.

First and most importantly, there are federal regulations that govern gift cards. The Credit Card Accountability Responsibility and Disclosure Act of 2009 includes provisions that protect consumers from fraudulent and predatory practices by those who sell gift cards. According to the Federal Trade Commission (FTC) consumer information website:

 "Money on a gift card cannot expire for at least five years from the date the card was purchased, or from the last date any additional money was loaded onto the card. If the expiration date listed on the card is earlier than these dates, the money can be transferred to a replacement card at no cost."
 "Inactivity fees can be charged only after a card hasn't been used for at least one year, and you can be charged only once per month. But you may be charged a fee to buy the card or to replace a lost or stolen card."
 "The expiration date of a card must be clearly disclosed on the card, and fees must be clearly disclosed on the card or its packaging."

If your gift cards do not meet these standards, you certainly should do what you can to amend them. The FTC responds to consumer complaints regarding gift cards from retailers, and you don’t want to run afoul of it.

Also, gift cards for medical spas fall into a bit of a strange grey area due to the corporate practice of medicine, a doctrine observed by many states that dictates that only a physician or physician-owned corporation can receive payment for medical services. Since many of the treatments offered at medical spas are medical in nature, the ownership of these practices is governed by this doctrine. To see if your state follows the corporate practice of medicine check your state’s medical aesthetic legal summary.

As it relates to gift cards, this means that the payment for the gift cards must be made in full to a physician or physician-owned corporation; otherwise, the practice has engaged in fee-splitting, which is illegal in most states. 

Also, you may wish to reward employees or customers who bring in business with gift cards, but doing so in a medical setting, such as a medical spa, can represent a violation of state and federal anti-kickback laws, which prohibit practices from paying for referrals. Because gift cards have a cash value attached to them, they can be viewed as representing a kickback and, therefore, expose the practice to legal action.

A medical spa owner or operator must be mindful when he or she is giving out gift cards. If the person who receives the card is not paying for it, there must be clear understanding that is not being given for any business-related purpose. If you give gift cards only as tokens of your appreciation, you should be fine.

The holiday season is meant to be a joyous time; keep it that way by understanding and observing the rules and regulations related to gift card distribution.

 

AmSpa Offers Microblading Training at The Medical Spa ShowOpen in a New Window

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

Microblading is here to stay. A semi-permanent beautification technique that is typically used to improve the perceived thickness of patients’ eyebrows, microblading is a treatment in which technicians create superficial cuts near the surface of the skin and fill them with pigment, creating the illusion of fuller hair. It is an exciting treatment that is becoming quite popular—in fact, according to the 2017 State of the Medical Spa Industry Report conducted by AmSpa, microblading is the fastest-growing new treatment in the industry, with revenue produced by it increasing approximately 40% from year to year. 

However, it is also worth noting that AmSpa’s study found that only around 25% of medical spas offer microblading. That number seems to be rising, but the market for this service is also growing, and enterprising practices stand to make a great deal of money with it, since it is absurdly inexpensive to the practice—all it requires is a disposable device that costs around $5. What’s more, in many states a practice typically does not need a doctor or a medically licensed practitioner to perform these treatments, thus keeping their practical costs low. However, medical spas can charge upwards of $500 for microblading services, so practices can reap very high profit margins when it is administered. Patients like it because it is simple and semi-permanent, making it a much more palatable solution than tattooing, which has been used in the past for the same purpose; microblading also tends to look a bit more natural.

I’ve been told by medical aesthetic professionals that eyebrows are the new lips, so microblading is something that medical spa owners who want to advance their practices should definitely consider exploring.

Educate yourself


Because microblading is so potentially lucrative, AmSpa is offering a one-day microblading training course at The Medical Spa Show in Las Vegas, which takes place on February 9, 2018. It is presented by Maegen Kennedy from Fleek Brows Microblading in Orlando, FL, who has been training people to perform this technique for several years. She is a board-certified physician assistant and licensed tattoo artist whose experience in the field can help newcomers understand the ins and outs of the microblading process. Visit themedicalspashow.com or americanmedspa.org to learn more about this opportunity. 

The micro print


If you are considering joining AmSpa and Maegen for this course, you should probably be aware ahead of time that because the microblading process is so similar to that of tattooing, most states that have issued rulings on the matter of who can legally perform these treatments have declared that a tattooing or body art license is required to perform it. 


If your practice is located in one of these states, you and your employees would need to obtain these licenses (if you don’t already have them) in order to perform microblading treatments in a medical spa. This might sound like a bit of a hassle, but earning a tattooing license is often surprisingly simple. Consult a local health care attorney to learn how you and your employees can get tattooing licenses in your state or city. (Author’s note: The American Med Spa Association (AmSpa) works with a national law firm that focuses on medical aesthetic legalities and, as a member, along with a number of other great benefits, you receive a discount off of your initial consultation. To learn more, log on to www.americanmedspa.org.)

If you need to know anything else about this topic, you can learn more about microblading at AmSpa’s consumer treatment website

Microblading training is highly sought after, and this is a great chance to learn about a type of treatment that could make a big difference for a practice’s bottom line. Join AmSpa and Maegen Kennedy in Las Vegas to learn how your medical spa can hit the jackpot with microblading.

 

Inc.com Article Outlines Business Concepts Vital to Medical Spa SuccessOpen in a New Window

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

In this space, I often discuss the legal peculiarities of running medical aesthetic practices from a viewpoint that generally deals with medical issues. However, while it is critical that medical spa owners and operators understand what’s expected from them in terms of rules and regulations, they must be equally adept at managing the business side of the aesthetics equation.

To that end, I highly recommend reading “6 Business and Financial Terms Every New Entrepreneur Needs to Know” by Jeff Haden on Inc.com. In general, Inc.com is an extremely useful resource for people who wish to develop a better understanding of the ways business works. It has given me some really valuable, practical tidbits over the years, and I would highly encourage anyone who is serious about developing their business savvy to follow Inc.’s Facebook page or regularly visit its website.

In this article, Haden gives basic but very informative explanations of these six metrics:

  • Customer acquisition cost,
  • Customer lifetime value,
  • Customer retention rate,
  • Repeat purchase rate,
  • Redemption rate, and
  • Revenue percentages.

This piece is extremely applicable to medical spas. Practice owners who take the time to learn the specific metrics that are referenced in this article tend to be the ones who are the most successful—the ones whose practices bring in millions of dollars in revenue every year.

You can spot a dedicated business owner from the types of metrics that they look at, and the ones mentioned in Haden’s piece are the ones that AmSpa’s industry experts discuss in our Medical Spa & Aesthetic Boot Camps. They are all vital when it comes to managing your medical spa, because a medical spa is much more akin to a retail store than it is to a doctor’s office, even though you have to follow the same rules and regulations concerning the administration of medical procedures that a doctor’s office would.

If a medical spa owner truly wants to be successful, he or she needs to realistically understand the dual nature of the business. If you are a nurse or a doctor, you need expand your horizons to better understand the ins and outs of the retail business. Sometimes, that means taking a 30,000-foot view of what your data shows you. Any initiative that you’re taking must be measured, tracked, and eventually evaluated.

The decisions you make should be based on the data you’ve compiled. The metrics mentioned in “6 Business and Financial Terms Every New Entrepreneur Needs to Know” are vital to helping you develop a more thorough understanding of the way your business functions. I think it explains these concepts very well.

At the end of the day, a medical aesthetic practice must make money. This might seem to go without saying, but when you’re in the process of starting up a medical spa, several other aspects of the business might seem to take precedent, especially if you’re coming to the medical aesthetic business from a medical background. And yes, it’s vitally important to set up a compliant practice and make sure that you’re following all applicable state and local regulations to the letter, but if you’re not doing everything you can to understand and utilize business concepts such as these, you’re not giving your medical spa a fair chance to succeed.

 

FDA Guidance Offers Clarity on Microneedling IssuesOpen in a New Window

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

The question of who can perform microneedling has been a hot-button one in spas and medical spas in recent years. On September 15, 2017, The U.S. Food and Drug Administration (FDA) issued a draft guidance to employees and industry professionals concerning its position on controversies concerning microneedling devices. The document, titled “Regulatory Considerations for Microneedling Devices,” clarifies the rules and offers definitions for a variety of microneedling products. It can be read and downloaded here.

Microneedling—also known as collagen induction therapy—is a skin treatment in which tiny needles are introduced to the skin, penetrating it in order to stimulate the production of collagen and other growth factors. It is relatively inexpensive, usually produces visible results without complications, and is easy to perform, so it has appeal both to medical aesthetic professionals and patients. (See AmSpa’s Treatment Directory for more information on microneedling.)

However, while this treatment is simple, the legal issues surrounding it are not, so it is important to understand why microneedling is such a controversial topic and why this document from the FDA is an important step toward clarity.

The controversy


Treatments that break the outer layer of a patient’s skin typically are considered to be medical in nature. This might seem to intrinsically make microneedling a medical procedure but, in fact, it is very difficult to judge whether or not the skin is being broken when you are dealing with tiny needles that can be as small as fractions of a millimeter long. Skin layer depth varies from patient to patient and depends on the part of the body being treated, as well as the amount of pressure being applied. 

Hypothetically, if microneedling is not a medical procedure, it could be performed by an aesthetician without an exam. However, if it is medical, a patient history must be taken, a licensed medical professional must administer an exam prior to treatment, and proper supervision and/or delegation procedures must be observed during the treatment. Put simply, if microneedling is treated as a medical procedure, it is far less profitable for the medical spa and far less convenient for the patient.

Getting to the point


This draft guidance is a big deal for the medical aesthetic industry. It offers some clarity regarding whether or not the manufacturers of certain microneedling devices need to be compliant with FDA standards, which gives some insight into the current attitudes of the agency and its partners regarding the nature of these treatments.

“Depending on the applicable state laws for scope of practice, delegation and supervision, this could result in medical spas having to reorganize their staffing for the performance of microneedling using newly classified devices,” says Jay D. Reyero, JD, partner at ByrdAdatto. “It could also result in transforming more traditional spas that feature microneedling into what we think of as medical spas.”

We advise everyone who is using microneedling devices at their medical spas to proceed with some caution, because there are FDA issues that are being worked through with regard to compliance. 

“We could see a clear distinction of what constitutes the practice of medicine for purposes of microneedling develop, giving medical spas more clarity on the issue,” Reyero says. “We could envision state licensing boards adopting a position to rely on the FDA’s determination and base a determination of the practice of medicine simply on the type of microneedling product used rather than the particular effects on the human skin or the lengths of needles.”

We anticipate that in the next month or two, the FDA will provide some clarification regarding these issues, but for now, it likely is best to proceed as if these treatments are explicitly medical in nature.

For other medical aesthetic legal questions be sure to seek legal advice from an attorney familiar with aesthetic laws in your state. AmSpaBasic members have access to a 60-question legal summary of regulations in their state, while AmSpaPlus members have access to these answers plus 25 additional questions. Become a member today to get answers to your aesthetic legal questions.

 

 

 

Illinois Nurse Practice Act UpdateOpen in a New Window

 

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

UPDATE: Gov. Rauner signed the revised Illinois Nurse Practice Act on Sept. 20. As stated in this post, it will take effect on Jan. 1, 2018. AmSpa will be conducting a webinar discussing the implications of this development on November 15, 2017 from 11:30am - 12:30 pm CST. If you own or operate a medical spa in Illinois, or if you live elsewhere and want to know how similar legislation might affect the industry in your state, register for the webinar today.

 

Scary Patients Can Haunt Your PracticeOpen in a New Window

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

Most of the people you encounter while working at a medical spa are perfectly pleasant, have reasonable expectations of their treatment, and are happy to discuss their options with you. However, at some point you will likely encounter a patient who asks too much of you or your business. Unfortunately, it is within that person’s power to make your life extremely complicated. It is important that you understand how to manage problematic patients to maintain your practice’s good reputation and prevent potential legal headaches.

A peculiar problem


Medical spa owners and operators face many challenges due to the nature of the medical aesthetic business.

Patients often may feel extremely entitled because they are paying out of their own pockets for their services instead of using insurance. Due to this entitlement, patients are often more demanding that in a managed care or traditional health care setting and there is a greater risk of the relationship ending badly. If a facility feels the need to initiate the termination of the relationship, some patients may be offended and may make legal complaints or turn to the state medical board.

This is unfortunate, but it is the nature of the industry. Sadly, some of these difficult patients simply cannot be reasoned with.

Oftentimes, because medical aesthetic services have to do with the physical appearance of patients, you may encourage patients with serious mental health issues related to their appearance, making them fundamentally unhappy with unrealistic expectations. 

Patient complaints to medical boards are no joke. Even if a claim such as this is eventually dismissed, a physician still must take the time and spend the money to defend him- or herself against it. And even if a physician is cleared of professional misconduct, his or her business still can be harmed by that former patient.
Medical aesthetic patients with mental instability also may be more likely to vent online in ways that can be professionally damaging on a number of social media sites, including doctor-rating websites. 

Combating complications


The best way to avoid having to confront issues concerning problematic patients is to make sure that you don’t associate with them in the first place.

Try to identify potential problem patients early on and figure out the best ways to encourage them to avoid your practice without offending them. This is where hiring the best front desk and customer care employees come in. They need to be trained on responses to handle and screen for potentially problematic patients, identifying red flags. These include patients who vent frustrations about previous doctors and patients who have unrealistic expectations about appearance changes they desire. Often, if you just listen to your patients, they will tell you everything you need to know.

It also is important that medical spas explain their policies as clearly as possible. A medical spa should team with an attorney to produce a contract for patients to sign prior to the administration of any procedures; this document should clearly present the conditions under which a medical spa will provide the prospective patient the service.

It is crucial that patients understand the expectations of the medical spa as clearly as the medical spa team understands the expectations of the patients. Patients needs to understand that they will not be allowed to disrespect medical spa procedure, such as not showing up for appointments, not adhering to instructions for preoperative treatments, making threats or are disruptive in the office environment and not paying for their treatment in a timely manner. Clarity and enforcement are critical to successful patient relationships.

Medical spas also can prepare themselves for the problem patients by making sure that their malpractice insurance contains language that protects them from spurious legal action.

“If a complaint is filed against a person and a governmental body comes in and decides to investigate, there’s a provision within a malpractice policy that is referred to as administrative defense coverage,” said David Shaffer, vice president of Professional Medical, the health care division of Insurance Office of America. “It basically provides the insured with reimbursement coverage for the cost of the investigation itself.”

Targeted coverage that can help to protect against unwarranted social media attacks is also available.

“One of the perks that’s built into the AmSpa [Medical Spa Insurance] Program is reputational harm coverage,” Shaffer said. “A consultant is made available when coverage is triggered to help them go out and perform whatever services are necessary to rebuild that reputation or correct whatever wrongs may have been put out there by a disgruntled patient.”

However, this coverage is only triggered if a claim is associated with the perceived damage—little can actually be done if an irrational patient smears a physician or spa via social media without filing a complaint. Again, your best defense is to avoid treating people patients such as these.

It is also worth noting that, in my experience, many problem patients come to med spas via deal sites such as Groupon. If you are considering partnering with a site such as Groupon to get the word out about your med spa, you may want to consider the quality of client these promotions sometimes attract. 

Being human


Even if you implement strict upfront screening practices and provide explicit terms and conditions for your services, you may still encounter patients with whom you feel you need to part ways. If this happens, talk to the patient with empathy and make sure he or she understands that you feel you are working in his or her best interests.
 

 

Streaming Surgeries Raise Issues for Medical SpasOpen in a New Window

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

 

Can you­–and should you–live-stream medical procedures on social media? Recently, some of the most prominent plastic surgery societies—most notably the American Society of Plastic Surgeons (ASPS)—have begun to take a look at some of the ethical questions surrounding plastic surgeons broadcasting live video of the procedures they conduct on social media services such as YouTube and Facebook. The surgeons who stream these surgeries typically say that they do this for its educational value, but clearly these shows are also designed to raise the surgeon’s profile. If the doctor successfully publicizes the event, several thousand people will tune in, and sometimes a staff member will even be in the operating room with the surgeon answering questions from the video’s chat function on a computer.

 

There is nothing illegal or even necessarily unethical about this but, on occasion, these videos make the surgeon and his or her staff look unprofessional, especially if they are joking around or goofing off during the procedure. And while gimmickry such as this is almost expected from those posting to social media today, it certainly can be argued that medical professionals should hold themselves to a higher standard. If the purpose of the video truly is to educate rather than make the surgeon a social media superstar, this sort of behavior should not be highlighted.

 

A matter of respect

 

At AmSpa’s Boot Camps, we often point out that in the medical aesthetic field, it is very important to incorporate sales and marketing techniques into the every day operation of a practice—certainly moreso than one would in a traditional medical setting, such as a doctor’s office or a hospital. After all, medical aesthetics is a retail business, and if those in a retail business do not pay attention to this aspect of the operation, they are not likely to be in business for very long.

 

To that end, live streaming is an effective way for surgeons to get their practice’s name on peoples’ lips. But while we typically encourage medical spa owners and operators to engage in marketing techniques such as these, we feel that those who act foolishly in videos need to take stock of just how far they’re going and make sure that they’re still representing medicine in a professional manner. They also need to make sure that they’re acting in a manner that is respectful to their patients, who often are unconscious on the operating table—it just looks bad when doctors are dancing, joking, and saying silly things to the camera while the patient is prone. It’s easy for surgeons to lose sight of this when they are performing (because a live broadcast of a surgical procedure realistically is a performance), but it is something they should make a point to be mindful of. This is a competitive market in which many people are utilizing unorthodox sales techniques and, although medical aesthetic professionals have to ensure that a practice remains profitable, they are still dealing with medical patients.

 

Contracting trouble

 

While this should probably go without saying, it is critically important that any surgeon or medical spa planning on live-streaming a surgical procedure receives written consent from the patient that thoroughly covers all HIPAA and local patient privacy laws. The forms used for this must be very specifically drafted in order to address the legal minutiae of live-streaming a medical procedure, so anyone planning to do this needs to be very careful to ensure that the patient understands exactly what is going to happen. This is not the sort of form that anyone can simply download off the Internet—it will need to be vetted by an experienced health care attorney to guarantee that no legal entanglements result from this broadcast.

 

Again, it’s worth mentioning that when patients sign such an agreement, they are consenting to the doctor streaming video of the procedure and to having their likenesses out there for the world to see for educational purposes, not to being a motionless prop while the surgeon acts foolish. It’s not hard to imagine a scenario in which a patient would be fine with participating in an educational live-stream, but then appalled when he or she sees the surgeon and staff members messing around during the actual video.

 

Living with a low profile

 

There is a very strong division in the realm of plastic surgery between those with the old-school mentality that any sort of self-promotion is gauche and those who have no problem with marketing themselves. Medical spas are caught in the middle—they are mostly run by non-core doctors and, in order to compete, they often are forced to engage in promotional techniques that some medical professionals might find unsavory.

 

I think it is important for medical spas to be a responsible party and to not promote stunts that are too overblown, because if they do, there will be blowback if something goes wrong or a patient files suit because he or she feels misled. Those doctors with anti-promotional mind-sets will use the opportunity to try to take certain procedures out of medical spas’ hands. The medical spa industry needs to be careful—it shouldn’t get too brazen or overt with its marketing, because medical societies have much louder voices in halls of government than the medical spa industry does. A group of Northwestern Medicine authors recently proposed a code of ethics for videos, and I think this is a good idea. After all, if these videos truly are for educational purposes, they don’t need the theatrics.

 

Corporate Practice of Medicine Issues in Illinois Medical SpasOpen in a New Window

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

 

The laws about owning a medical spa in Illinois are not necessarily straightforward, but are increasing in importance because the state is a hotbed for the medical aesthetic industry. If you travel in and around the bustling city of Chicago, you may find yourself overwhelmed by the number and variety of medical spas in the area. However, likely due to the size of the industry in the state, Illinois has become known as one of the most active states in the nation in terms of regulatory investigation of medical aesthetic practices.

 

Ownership is one of the key factors that Illinois regulators look at continuously—they are very concerned with who owns and collects revenue from the state’s medical spas, and they are quick to punish those whose ownership structures are found to not meet the requirements of Illinois law. Therefore, it is important for Illinois medical spa owners—and prospective Illinois medical spa owners—to know what constitutes a legal ownership structure in the Land of Lincoln, since laws can vary greatly state-to-state. (AmSpa Members: Consult your legal summary to find answers to Illinois medical spa ownership questions.)

 

Corporate practice of medicine

 

Illinois observes a legal doctrine known as the “corporate practice of medicine,” which dictates that a physician or a physician-owned corporation must be the sole owner of a medical facility in the state. Since medical aesthetic practices are medical facilities—unorthodox medical facilities, but still—they are required to adhere to this standard. Additionally, only physicians or physician-owned corporations can collect revenue from medical procedures administered, and non-doctors—including nurses, estheticians, and entrepreneurs—cannot employ or contract with doctors to serve as their medical director and then collect revenue from medical spa services. This is designed to ensure that physicians are in complete control of all medical treatment; this extends to the pricing of procedures and the purchase of medical supplies and drugs. In the eyes of the state, a doctor should always have control of these factors and, if one is not, the pursuit of profit will win out over the welfare of the patients.

 

The arrangement that tends to get people in trouble in Illinois is when an entrepreneur, a nurse, or an esthetician opens a medical spa and enters into a medical director contract with a doctor. If a non-doctor accepts payment for medical services, it is a violation of the corporate practice of medicine, even if the doctor is heavily involved in the day-to-day operation of the facility (which is not always the case with medical directors). In such a case, the revenue—and, therefore, a degree of control over medical treatment—flows to a non-doctor, which is prohibited.

 

A solution

 

If an entrepreneur or a nurse wants to become a part of the medical aesthetics industry on an ownership level in Illinois, he or she can look into setting up a management services organization (MSO). An MSO partners with a physician, for whom a separate company is created; this company only provides medical services. This arrangement is known as a management service agreement (MSA) and essentially allows a non-physician to supervise almost every aspect of a medical aesthetics business, including branding, marketing, owning the real estate, payroll, human resources, accounting, and billing—everything except the actual administration of medical services, for which the physician remains solely responsible.

 

Essentially, this is best thought of as a lessor/lessee situation. The physician pays the MSO “rent” for the right to occupy the space, and the MSO as a landlord, maintaining the facility and keeping the physician as comfortable as possible. However, the amount paid to the MSO fluctuates according to the amount of business conducted by the physician. If the medical organization conducts more treatments in a month or quarter (depending on the terms of the agreement) than it did the previous term, the MSO also will make more money. This helps to create a bond between the physician and the MSO—if one succeeds, they both succeed. 

 

Words of warning

 

Often, AmSpa consults with nurses and entrepreneurs regarding the corporate practice of medicine issues in Illinois, but it is equally as important for non-core doctors—surgeons and general practitioners, for example—who are becoming medical directors to watch out for this. Ultimately, they can have their licenses investigated because of this doctrine. In this space in the future, we will discuss some recent court cases in states such as Michigan and New Jersey, in which there have been severe consequences for violating the corporate practice of medicine—contracts have been invalidated, insurance payments have been recouped, and coverage has been denied. This is a real issue that medical aesthetic professionals need to be aware of. To be sure you are on the right side of medical spa law consult an attorney familiar with medical aesthetic regulations in your state.

 

How Environ Skin Care is Dominating the Medical Spa and Aesthetics IndustryOpen in a New Window

By: Aly Boeckh, Marketing and Sales Coordinator for the American Med Spa Association

The Medical Spa Industry is growing so rapidly, nearly $4 billion in sales in the 4,200 locations in the U.S., and it's becoming an extremely competitive market for skin care products to stand out, dominate, and sell within a medical spa space.

With so many consumers uneducated on key ingredients and medical spa professionals lacking the sales talk techniques to engage consumers, most medical spas don't see the profit value in selling retail.

But because we know the top med spas in the nation are making a killing off their retail sales, we're letting you in on the secrets to retail success - and that's exactly what led us to Dr. Des Fernandes, Environ Skin Care Founder and Scientific Director. 

Fernandes is the pioneer and globally recognized expert in vitamin A skin care, Cosmetic and Medical Needling, Cool Peel Technology and state-of-the-art skin care ingredients and formulations.

As expected, Fernandes is as intelligent as they come - and built Environ Skin Care out of the very desire that every physician who's ever struggled with the question of what skincare line you should be using can relate to. 

Why Environ Skin Care was Born out of Necessity:

“Medical Spas are moving away from the simple visit once a year to actually trying to put people on the road to good skincare. I think we now open the opportunity for them to make substantial differences to skin, to make skin healthy, instead of just being pampered.” 

“In a medical spa, this is their natural type of function. The most interesting thing is the return business. We’ve got the big spas like Canyon Ranch, which is not a medical spa but it’s becoming a medical type of spa as well, that is opening up a tremendous future for medical spas to start doing work with patients that get hooked on the beautiful skin.”

Discovering the Secret to Vitamin A in High Doses:

“As we’re sitting here and as the sun is coming through the windows, UVA comes through, so I’m getting a bit of UVA that’s destroying my vitamin A on my skin and it will destroy the Vitamin A quite significantly."

"You know the photograph that they typically show of the truck driver that’s terribly damaged on the left side? That is photo-damage. But nobody takes you to that next step…What went wrong from the photo damage? What happened when the sunlight came into the skin? It damaged his vitamin A. When you see wrinkled skin or pigmented damage thick skin, you’re seeing vitamin A deficiency.” 

“Progressively, when we’re young we have excellent levels of vitamin A in our skin, because we have excellent receptors on the skin surface, but with time as we expose ourselves to sunlight just through the window, we get those damaging rays.”   

"As we get older we lose our vitamin A receptors core cells. Now you don’t notice it, and you don’t know that you have vitamin A deficiency. But as you get older, you start to see that your smoother skin is now on the bottom, which is generally not receiving the sunlight. That’s the crime of vitamin A deficiency that we suffer from." 

How Vitamin A Reverses Signs of Aging:

"First, we have to make the cells able to use the normal amount of vitamin A, but the cells can’t use the normal amount of vitamin A."

"Say a blonde person like you, give them vitamin A and they’ll say 'This is dry, it makes my skin pink, acne spots, this stuff is terrible' and it’s just because you don’t have the receptors from subtle damage to the skin that we are totally unaware of. It takes a bit of time for us to adapt to the skin to take in normal doses of vitamin A."

"That’s why I created the step up system. For some people, even the step up system is too drastic for them and they start with vitamin A once a week. Then I advise these people to eat vitamin A, because when you take it by mouth you will build up more vitamin A in the skin cells as well."

Complimenting Cosmetic Treatments

“That is why I created it. When I started a private practice I was very lucky. Rapidly, I became very busy doing lots of facelifts, and what I realized is that if you’ve got bad skin and very wrinkled skin, I can do a facelift at my upmost best, but you don’t look young enough. You don’t look really young." 

“One of the things that you sometimes see is somebody looking very old, very tired, but they look odd. They look odd because they have old skin and a tight young face but it doesn’t look young. We’ve all seen that as we walk down the street and so on, and when I was in Canyon Ranch I saw a few examples of that." 

“What I realized in the early 80s, is if I wanted to get good results, I had to do this. That’s why I made the initial product. Only for my patients. Then I suggested to a number of my colleagues that they too should buy these products for their patients, and they just thought I was crazy!” 

“But the main reason was for medical reasons. Then as a plastic surgeon in South Africa, we treat a lot of skin cancer cases. When patients come in with skin cancer again and again, 2 to 3 times a year, we feel that we have to do something here. As I got more people to use vitamin A on their skin, I  started noticing that they were coming in for check ups. People that were operated on 3 times a year, were now coming in for a check up annually and they didn’t have the skin cancer. Then I realized that actually this cosmetic level of vitamin A was managing to reduce the risk of skin cancer."

The Medical Spa Landscape in South Africa:

"In my own practice we don’t sell any cosmetic products. You have to have very separate esthetician offices, and that is pretty true for United Kingdom and most of Europe. There are very few medical spas. You must not forget that lucky for South Africa, an esthetician goes to study 2-3 years at a college before they come in."

"For example, if you go to Ireland they have to go to a university to get a degree before they can become a skin care therapist. So there is a vast difference. In America, true esthetic work is a relatively new concept. Estheticians here are being trained with 300 hours to do things and the equivalent person in Europe and Australia, are going for more or less university courses." 

"I think the American model of the medical spa will come. But it’s not there now. Not significantly. It’s beginning, it’s in its early phases.“

To learn more about Dr. Des Fernandes, please visit his page here

 

Who Can Legally Fire a Laser In Georgia?Open in a New Window

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

The issue of who can and cannot legally operate cosmetic lasers troubles many medical spa and medical aesthetic facility owners and operators. After all, there is no universally accepted licensing procedure for cosmetic laser technicians, and most state medical boards have not taken the time to rule on the subject. However, the Georgia Composite Medical Board has been proactive in addressing the idea that cosmetic lasers are something of a hybrid of medical and non-medical treatment, and it offers cosmetic laser practitioner licenses that permit estheticians, registered nurses, and cosmetologists to legally fire lasers under certain circumstances.

Peachy keen

It is difficult for some medical spa owners and operators to come to terms with the fact that some non-invasive laser treatments are considered medical treatments, and therefore require a physician, nurse practitioner (APRN), or physician assistant (PA) to not only perform an initial consultation, but also fire or supervise the firing of the laser. To many, this seems like an unnecessary use of these medical professionals’ time and resources.

The Georgia Composite Medical Board decided to address this issue by creating a state licensure procedure to clarify who can legally fire certain types of cosmetic lasers, and what procedures need to occur in advance of these treatments. 

First of all, it is important to clarify that this licensure covers only a few types of cosmetic laser treatments: laser hair removal, intense pulsed-light devices, and non-ablative light-based devices. All other cosmetic laser treatments are beyond the scope of this licensure and must be treated as medical procedures, with accompanying initial exams and proper supervision. However, the simple, relatively inexpensive cosmetic treatments this licensure does cover account for a large percentage of the laser treatments administered in the U.S., so the impact of this licensure can be significant.

Georgia’s law creates two levels of cosmetic laser practitioner licenses:
Assistant laser practitioner: This license allows people who hold licenses as PAs, licensed practical nurses (LPNs), APRNs, registered nurses (RNs), estheticians, and master cosmetologists to conduct the cosmetic laser treatments mentioned above without a doctor seeing the patient first or a even being on site. In order to earn this license, a candidate must complete certain courses from accredited laser training schools and meet certain requirements from the state.

A licensed assistant laser practitioner does not require any supervision when performing the treatments covered in this license, which helps improve a medical spa’s flexibility. Having a physician onsite to supervise basic treatments such as these is a major hurdle that these businesses have to clear in order to improve their profitability, and Georgia has provided the mechanism to make that possible. 

Senior laser practitioner: This license permits PAs, RNs, and APRNs to supervise unlicensed individuals who are firing lasers. If an LPN or esthetician, say, does not have an assistant laser practitioner license and a physician is not onsite to supervise, an RN with a senior laser practitioner license does provide sufficient supervision from a legal standpoint, thanks to this aspect of Georgia law. Again, this gives the practice the ability to treat a patient without needing a doctor to see him or her, which could potentially save it a great deal of money. 

As with the assistant laser practitioner license, someone seeking a senior laser practitioner license must complete training courses from state-approved laser training schools. In addition, he or she must have at least three years of experience, as well as three years of clinical or medical technological experience.

The laser’s edge

From AmSpa’s perspective, the availability of these licenses is a major positive, because it provides some clarity in an area of medical aesthetics where, often, there is none. It’s something we in the legal profession always seek—a definitive statement that illustrates exactly what one must do to be compliant. We’re always supportive of efforts by a legislature or medical board to clarify things that need it.

Also, this law creates the potential for medical spas and laser centers in Georgia to see more patients, as well as potentially open more locations with a higher patient flow, because they don’t need to circulate the patients in to see a doctor or NP. However, this still only addresses a small number of laser services, so if you operate in Georgia and have questions about remaining compliant while administering other laser treatments, consult your local health care attorney or work with AmSpa’s national law firm, ByrdAdatto. AmSpa members can view the Georgia legal summary to get an overview on the state’s medical aesthetic laws.

To learn more about this law and others that affect medical spas in the Peach State, sign up to attend AmSpa’s Boot Camp in Atlanta on November 6 and 7. Click here for more information and to register for the Boot Camp. We hope to see you there!
 

 

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

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

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

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

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

 

FTC Reiterates Social Media Influencer GuidelinesOpen in a New Window

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

Social media influencer marketing isn’t heavily used in medical spas yet. According to AmSpa’s 2017 Medical Spa State of the Industry Report medical aesthetic practices rely most heavily on their website, email marketing, and their own free social media channels to reach new patients. In many other industries, however, online influencers are gaining a lot of attention from marketers looking for effective ways to reach certain demographics.

If you ask a Millennial who his or her favorite entertainers are, you very likely will be introduced to a world beyond movie stars, rock stars, and comedians—the world of social media stars. These enterprising individuals create their own content and broadcast it over social media for the world to see. Although this form of celebrity might seem unusual to some, the potential reach of social media networks is undeniable. YouTube, the ubiquitous video site, claims to have more than 1.5 billion active visitors each month, and Twitter has 328 million active users per month. Some social media celebrities have garnered enormous followings—for example, more than 57 million YouTube accounts subscribe to the channel of controversial video game vlogger PewDiePie (aka Felix Kjellberg).

In marketing terms, these social media celebrities are known as influencers. And because these influencers’ audiences are huge and extremely dedicated, marketing professionals have begun to dedicate a great deal of time and effort to reaching them. This has led to the rise of this new type of marketing known as “influencer marketing,” whereby the influencers are paid to tacitly endorse a product rather than overtly promote it. This is seen by marketers as a way to establish credibility with the influencer’s followers without engaging in the bald consumerism of conventional advertising. What’s more, it has proven to be extremely effective, with advertisers reporting immediate upticks in activity on their social media sites and websites, which translates directly into sales. This is considered to be among the best ways to reach Millennials, a demographic that is known to be notoriously difficult to market to.

Medical spas have not yet engaged in a great deal of influencer marketing, but given the growth of this type of advertising, it likely is only a matter of time before it becomes a part of medical spas’ marketing strategies.

However, the Federal Trade Commission (FTC), which regulates advertising on the airwaves, has issued a statement that warns influencers to be very careful when they engage in this type of marketing, because truth-in-advertising requirements mandate that they very clearly disclose when they are being paid to promote a particular product or service. When you see an advertisement on television or in a magazine, it is very obvious that it is a paid marketing unit; this is because the FTC wants to ensure that the public is fully informed when it is being sold to, because otherwise the ad can be viewed as misrepresentation.

The problem with influencers mentioning products is that often, they do not disclose that they are being compensated. The FTC considers this a problem. Influencers have a great deal of selling power, even though they might not necessarily realize it.

In April 2017, the FTC revealed that it issued warning letters to more than 90 social media influencers. These letters explain very explicitly that the influencers need to be careful, and that they need to disclose very specifically if they are being paid to talk about a product. In a blog post explaining the letters, the FTC offered the following advice:

Keep your disclosures unambiguous. Vague terms like “Thank you,” “#partner,” and “#sp” aren’t likely to explain to people the nature of the relationship between an influencer and the brand. There’s no one-size-fits-all way to make that disclosure, but an unfamiliar abbreviation or cryptic word subject to multiple interpretations probably won’t do the trick. Approach the issue by asking yourself “In the context of this post, how can I make the connection clear?”


Make your disclosures hard to miss. In addition to what you say, consider where you say it and how it will look to consumers on the devices they’re using. People should be able to spot the disclosure easily. But if they check their Instagram stream on a mobile device, they typically see only the first three lines of a longer post unless they click “more.” And let’s face it: Many people don’t click “more.” Therefore, disclose any material connection above the “more” button.


Avoid #HardtoRead #BuriedDisclosures #inStringofHashtags #SkippedByReaders. When posts end with a jumble of hashtags, how likely is it that people really read them? That’s why a “disclosure” placed in a string of other hashtags isn’t likely to be effective.

If your medical spa is using an influencer marketing program or is interested in exploring this type of campaign, make sure the influencers with whom you’re working know the rules governing this type of advertising. If not, they could be subject to severe penalties from the FTC. 

 

Can Dentists and Chiropractors Own Medical Spas?Open in a New Window


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

Can a dentist or chiropractor own or serve as a medical director for a medical aesthetic practice? Recently I have been asked this on several occasions since, after all, you could make the argument that the certified skills of a dentist or chiropractor might be a good match for a medical spa. However, in most states, the answer to the question is “no,” and it is important to understand why that is the case.

Dentists

Dentistry, of course, is the branch of medicine that deals with treatment of teeth and the oral cavity. To be a dentist, one must complete a rigorous education with medical components. Although a medical spa owner wouldn’t necessarily immediately think of a dentist for the role of a medical director, it is not an outlandish proposition.

When I am asked about medical directorships by dentists, they often point out that, in course of their practice, they use injectables, such as Botox and fillers, as one would at a medical spa. They feel that this particular expertise might qualify them, under the law, to become a medical director of a medical spa, a position that is typically held by a physician. But an important distinction between dentists and physicians is that the dentists are restricted to performing only the treatments specified in the dental practice act of the state in which they practice.

Within those restrictions, dentists are often permitted to use injectables in and around the oral cavity, so they could conceivably administer these treatments to lips, mouths, and the immediately surrounding areas. However, that is where we recommend it stops, because that is a reasonable interpretation of the area that is connected to the oral cavity.

I have had dentists on many occasions tell me that, in dental school, they learned about full facial anatomy—they make the argument that the cheeks are connected to the mouth, and the neck is part of the mouth, and so forth. In many instances, they have used that justification to expand the treatments they offer beyond the oral cavity and its immediate surroundings. Some have been known to administer forehead Botox, fillers around the nose and cheeks, and other treatments that one would not typically associate with dental practice.

Despite this, all the information AmSpa has received from various dental boards suggests that these regulatory bodies absolutely would not support the idea of a dentist administering Botox to a patient’s forehead, for example, being reasonably related to their practice act. Additionally, being a medical director at a medical spa involves being responsible for all the medical treatments being administered by the practice—not just the ones that involve the mouth and (if we’re being extremely generous) the face. This can include treatments such as laser hair removal and laser skin tightening and rejuvenation to other parts of the body. It is very clear that within his or her scope of practice, a dentist cannot oversee medical treatments such as these.

The bottom line is that we strongly encourage medical spas to look elsewhere for a medical director, although we are sympathetic to dentists’ cause. They simply are not qualified in the eyes of state regulatory bodies.

Chiropractors

The story is very similar for chiropractors. Chiropractic generally is regarded as a form of alternative medicine, and it is concerned with the health of the musculoskeletal system. Chiropractors treat their patients without the aid of surgery or medicine. This is a somewhat controversial field, as chiropractic’s tangible benefits are difficult to pin down. 

Nevertheless, chiropractors’ scopes of practice typically are controlled by their state’s medical practice act. They are often referred to as “doctors,” but they are restricted to administering the treatments that are specified within these practice acts—generally for chiropractors, this means treatments relating to the back, spine, and neck. Chiropractors can, in some cases, use light-emitting devices to treat ailments relating to bones, joints, and musculature, but we at AmSpa feel strongly that such a dispensation does not extend to treatments dealing with aesthetics and the skin.

It is a stretch, at best, to think that a state regulatory agency would rule that many of the treatments offered by a typical medical aesthetic practice fall within a chiropractor’s scope of practice.

Conclusion

Because of the restrictions set forth in the practice acts governing dentists and chiropractors we strongly advise medical aesthetic practices to look elsewhere for medical directors. Most states will not even permit these dentists and chiropractors to have an ownership stake in a medical spa. 

Become an AmSpa member to see your state’s legal summary of regulations governing medical spas and medical aesthetics practices.
 

 

Update on Illinois Bill to Grant Advanced Practice Registered Nurses Full Practice AuthorityOpen in a New Window

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

Nurse practitioners in Illinois medical spas and aesthetic practices may soon have more autonomy in the industry. Every 10 years the Illinois Nurse Practice Act expires, so the state’s General Assembly must draft and pass a new version of the act before that happens. The current version of the act is set to expire on January 1, 2018, and on schedule, the General Assembly recently passed a bill that will (likely) replace it. This revised Nurse Practice Act features a few notable elements that could affect the way the med spa business is conducted in the Land of Lincoln.


Initial reactions when the bill was first passed.

A Bump Up

The most significant change in the new version of the Illinois Nurse Practice Act is that, once it is enacted, advanced practice registered nurses (APRNs) can achieve full practice authority adding Illinois to the list of 23 states plus the District of Columbia that grant this level of independence to these providers. This means that nurse practitioners can essentially operate independently, without direct oversight from a physician, provided they meet certain qualifications. Currently, nurse practitioners in Illinois are governed by collaborative agreements with a physician, and those agreements dictate generally what they can and cannot do. If a nurse practitioner wants to perform Botox injections, for example, or see new patients at a med spa, he or she would have to have that written into the collaborative agreement. In addition, they are required to meet with their supervising physician once a month and they must have protocols developed in accordance with the physician. Essentially, an Illinois nurse practitioner’s scope of practice is restricted by what his or her supervising physician feels comfortable putting into the collaborative agreement.

However, once the new Nurse Practice Act takes effect, APRNs—including nurse practitioners, nurse midwives, and clinical nurse specialists—can apply for and be granted full practice authority provided they meet certain requirements, including training, clinical experience, continuing education, and physician collaboration in certain practice areas. If a nurse practitioner achieves full practice authority, he or she is no longer required to have a written collaborative agreement with a physician. This allows nurse practitioners to be fully accountable to their patients and to have their own practices. They can accept referrals, make referrals, write orders, prescribe medications, and essentially operate as an independent entity without being restricted by a collaborative agreement.

What this means for med spas is that instead of employing both a doctor (medical director) and a nurse practitioner, they can potentially enter into an agreement with a nurse practitioner, and that nurse practitioner could independently operate a medical spa. Potentially, this could be very significant.

However, the changes to the Illinois Nurse Practice Act also include provisions regarding fee-splitting, preventing an APRN from splitting any fees they collect for their services. This means that a medical spa wishing to partner with either an APRN or a physician must do so through a management services agreement and may not pay the APRN or physician a percentage of medical revenue.

The revised Nurse Practice Act was passed by both the Illinois Senate and the Illinois House of Representatives on June 25, and was sent to Governor Bruce Rauner on July 24. As of this writing, Governor Rauner has yet to sign the bill into law, so this post is somewhat speculative in nature. However, it is expected that he eventually will sign the bill—nothing in it is particularly controversial from a political standpoint, and both chambers of the General Assembly passed it without a single “no” vote. Stay tuned to AmericanMedSpa.org—we’ll let you if the governor signs the bill, and if not, what the potential ramifications are.

In the meantime, if you are a nurse practitioner or a med spa owner in Illinois, it is worth familiarizing yourself with the bill in order to learn what the future may hold for this segment of the industry. 

Learn more about the medical aesthetic laws you need to know at AmSpa’s Medical Spa & Aesthetic Boot Camp in Chicago, IL October 14-15.
 

 

Who Can Perform Microblading in a Medical Spa?Open in a New Window

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

Questions about who can perform microblading in a medical spa are popping up more and more as the treatment continues to gain popularity. Answers can be hard to find as medical boards and other regulatory agencies have often not made an official decision as to which scope of practice this fall under.

Watch AmSpa Founder/Director Alex Thiersch weigh in on the subject, and see AmSpa’s Treatment Directory for more information on microblading.


For more information on regulations governing medical aesthetics become an AmSpa member and access the legal summary for your state.

 

 

LLC Laws Change in IllinoisOpen in a New Window

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

When opening a medical spa in Illinois, deciding on the appropriate corporate structure for the practice is an important choice that is not always at the front of peoples’ minds. There are many options, however recent updates to the LLC law in Illinois may make it the preferable structure for medical spas and aesthetic practices in the state.

Limited liability companies (LLCs) are businesses structured to allow their owners and operators more flexibility when compared to traditional corporations. They essentially allow the owners of a company to organize the company however they like and choose how they wish to be taxed. This gives owners a good idea of the company’s financial position at all times and allows them to plan accordingly for upcoming events. The LLC is a relatively new legal construct, but in the medical aesthetic industry, it has quickly become a preferred organizational method. As an attorney, I recommend that clients use LLCs all the time. 

In Illinois, LLCs are governed by the Limited Liability Act, which was enacted on January 1, 1994. However, as of July 1, 2017, the act has been dramatically revised in an effort to bring it in line with recommendations from the National Conference of Commissioners on Uniform State Laws and similar legislation that has been passed in other states. These revisions help to make the act a bit more predictable and make the enforcement of certain provisions easier, because standardizing the law as much as possible helps to give both regulators and LLCs a good idea of how courts will interpret it in certain situations.

My colleague, Renee E. Coover, goes into detail regarding the changes to the Illinois law in this blog post for the national medical aesthetic law firm of ByrdAdatto. Although the revisions apply to LLCs in all different industries, they make some basic administrative and structural changes that medical spa owners and operators should be aware of.

First of all, the LLC Act now allows oral operating agreements. Typically, an LLC drafts an operating agreement—the “constitution” of the company, if you will. This agreement determines how the company acts and how changes can be made by specifying who gets what votes, who has control, how decisions are made, what happens when somebody leaves, what happens if somebody wants to sell, and so forth. The revision to the LLC Act allows oral operating agreements, so now elements of an operating agreement that have been agreed to orally do not need to be codified to be binding, which is a distinct change from the way that the statute has previously been enforced.

Another key aspect of these revisions that medical spa owners and operators should note is that the LLC Act now allows forthe waiver of fiduciary duties by a manager. A fiduciary duty is an inherent, implied duty of loyalty in which an individual acts in furtherance of the company’s interest at all times. The revisions to the LLC Act allow managers and members of the company to waive fiduciary duty, which gives more power and flexibility to the owners, who can essentially run the company as they see fit.

Finally, the revisions to the LLC Act establish specific authority for members and managers. This means that the LLC can file a statement with the Illinois Secretary of State’s office that either grants or limits the authority of a member or manager in the organization to make certain decisions outlined in the statement.

If you own a medical aesthetic practice or medical spa in Illinois that is operating under an LLC, you should consult a business attorney to make sure that your operating agreements are up to date. If you are considering starting a new company under an LLC, you should be aware of the revisions to the Illinois LLC Act and factor them into your decision-making process. 

Find out more about how to set up your medical spa’s legal structure – from corporate structure, to ownership, to employee payment plans, to HIPAA compliance, and more – at AmSpa’s Medical Spa and Aesthetic Boot Camp October 15-16 in Chicago, Illinois.

 

 

How to Legally Open a Med Spa in MassachusettsOpen in a New Window

By: Renee E. Coover, JD, ByrdAdatto Attorney   

Opening a medical spa in Massachusetts comes with a number of regulatory and licensing requirements. ByrdAdatto Attorney, Renee Coover, explains how to navigate the process. Become an AmSpa member to find the laws governing medical spas and aesthetic practices in your state.

 

Can Non-Doctors Own Medical Spas?Open in a New Window

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

Owning a medical spa or aesthetic practice for non-doctors is a goal that’s often difficult to realize. In most states, only a physician or a physician-owned corporation can legally own a medical practice. However, non-doctors can essentially own a medical spa via a management services organization (MSO) and, while such an arrangement still hinges on the participation of a physician, it allows others a very significant role in the day-to-day operations of a medical aesthetic practice.


For more information on MSOs see AmSpa's webinar on non-physician med spa ownership.

The Basics

Most states observe a doctrine known as the corporate practice of medicine, which dictates that only a physician or physician-owned corporation can receive payment for medical services. Since many of the treatments offered at medical spas are medical in nature, the ownership of such facilities is typically governed by this doctrine. (AmSpa members: check your state legal summary to see if your state observes the corporate practice of medicine.)

 

But entrepreneurs who want to become a part of the medical aesthetic industry on an ownership level and live in states that observe the corporate practice of medicine can look into setting up an MSO, which provides management services (as its name suggests). It partners with a physician’s company, which only provides medical services. This arrangement, known as a management service agreement (MSA), allows a non-physician to supervise most aspects of a medical aesthetic business, including branding, marketing, owning the real estate, payroll, human resources, accounting, and billing—everything except medical services.

 

Paying the Cost to Be the Boss

It is helpful to think of this as a lessor/lessee situation in which the MSO is the landlord and the physician is the tenant. The physician pays the MSO “rent” to occupy the space, and the MSO maintains the facility and keeps the physician as comfortable as possible. However, unlike an apartment rental governed by a lease that dictates the occupant pay an agreed-upon amount of money for a certain term, the amount paid to the MSO each period changes according to the amount of business conducted by the physician. If more patients are treated in a month or quarter (depending on the terms of the agreement) than in the previous period, the MSO also makes more money. This helps to create a strong bond between the two sides of the business—if one succeeds, they both succeed. 

 

The contractual separation of the two entities also helps mitigate risk for both parties. A physician risks very little when entering into an MSA. If the practice fails, he or she is probably going to be fine. The physician is not liable for the facility, its contents, and the land on which it is located; that risk belongs to the MSO. The MSO also typically covers the physician’s liability insurance. On the surface, this arrangement might seem heavily weighted in the physician’s favor, but that’s why the physician pays the MSO. Also, the MSO is not responsible for any sort of liability claim leveled against the physician. 

 

Of course, all this is predicated on the assumption that the arrangement is executed properly. If so, everyone stands to benefit; if not, both sides could suffer significant consequences. Be sure to consult an attorney familiar with medical aesthetic laws in your state before deciding on the ownership structure of your medical spa.

 

Word to the Wise

When entering into these types of arrangements, a few pitfalls must be avoided. First and most importantly, the doctor must always be responsible for medical decisions. Second, payment for medical services must be always made directly to the physician’s company. The MSO is paid by the physician—at the end of each pay period, it submits an invoice for management services to the physician’s company. If this is properly executed, the MSO receives most of the revenue generated by the med spa.

 

In order for the practice to work properly and compliantly, the doctor must make all medical and clinical decisions. If the physician does not actually do this, he or she is subject to severe consequences, including license forfeiture and large fines. Furthermore, the MSO may be found to be practicing medicine without a license. As such, it is vital that when setting up an MSA, all parties must understand the roles and obligations to which they are agreeing. 

 

A Formula for Success

MSOs have been used for many years by entrepreneurs to form management companies for medical organizations as large as hospitals and managed care facilities, so it makes a certain amount of sense that creating an MSO for a medical spa would be relatively simple. However, an MSA cannot be properly executed using forms downloaded off the internet, so it is important that you consult an attorney who has experience setting up MSOs if you want to enter into this sort of arrangement.

 

You can learn more about MSOs and many other legal topics of interest to medical aesthetic practices at AmSpa’s Boot Camps. We will be hitting San Jose, Calif., on Sept. 18 and 19, the Chicago suburbs on Oct. 14 and 15, and Atlanta on Nov. 6 and 7. We hope to see you there!

 

Is Telemedicine Legal in Medical Spas?Open in a New Window



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

Whether telemedicine is legal in medical spas and medical aesthetic practices is a hot-button issue. Little more than a decade ago, you likely would have been laughed at if you told someone that in 2016, most people would be walking around with high-definition (HD) video cameras in their pockets, but here we are. That’s why medical aesthetic practices should pay attention to telemedicine rules and regulations, even if it is not currently legal in their states.

Telemedicine is the use of electronic telecommunication technology to provide healthcare services to patients, and it is becoming central to the medical landscape. Theoretically, medical aesthetic practices could stand to benefit a great deal from using telemedicine, since conducting initial exams for minor medical services such as the ones provided by medical spas can be a drain on resources if they must be conducted in person. However, the laws that govern telemedicine are evolving, so medical spa owners and operators should familiarize themselves with the legal issues surrounding the practice and decide if they want to to give it a try. When looking for legal advice be sure to consult an attorney who is familiar with medical aesthetic laws in your state. (AmSpa members receive a complimentary compliance assessment with the business/healthcare/aesthetic law firm of ByrdAdatto.)

The Technology
Conceivably, telemedicine could change the way medical aesthetics practices conduct initial examinations. Most states require a licensed healthcare professional – a physician, physician assistant, or nurse practitioner – to conduct an initial examination, generally face-to-face, with each patient prior to the administration of medical services. As a result, compliant medical aesthetics practices tend to need to have at least one licensed professional onsite at all times.

But what if you could simply reach a healthcare professional as needed instead of paying one to be in the office all the time? That’s the prospective advantage of telemedicine. Ideally, a healthcare professional could conduct examinations over a telecommunication protocol such as Skype or FaceTime, and the practice would not need to pay a premium to have a licensed professional onsite all day, every day.

A Legal Matter
This practice inspires a few questions. Can a healthcare professional conducting a remote examination detect all skin conditions or abnormalities that could complicate medical aesthetics procedures? Moreover, can such an exam sufficiently establish the doctor/patient relationship? Lawmakers across the country are currently evaluating these issues and more, as legislation governing telemedicine is still evolving and open to interpretation. No consensus of opinion exists from state to state or even lawyer to lawyer regarding the practice. Telemedicine is the topic of entire week-long conferences, which should give you some idea about the amount of controversy surrounding it.

Many states have telemedicine laws on the books, and they do generally tend to allow it, but typically for continuing care and consultations with specialists in other cities, states and even countries, rather than initial examinations. If a patient is already under the care of a doctor, telemedicine is more widely accepted than if a healthcare professional conducting an initial exam has never met the patient in person.

In Illinois, for example, the state medical board does not look favorably on the practice, despite the fact that there is no actual law prohibiting it on the books. In Texas, on the other hand, state legislators have passed a law that sets very specific standards for how an offsite consultation must work. It is permitted, provided the healthcare professional performing the offsite consultation is in a specific location and working under particular conditions. California’s medical board also allows telemedicine, provided certain conditions are met.

Some issues that still need to be sorted out include the question of whether a doctor can conduct initial exams on patients in states other than the one(s) in which he or she is licensed to practice. Historically, it has been difficult for physicians to obtain medical licenses in multiple states. However, an initiative known as the Interstate Medical Licensure Compact (IMLC) aims to help provide healthcare to underserved areas via telemedicine by making it easier for doctors to acquire medical licenses in multiple states. As of now, medical boards in 22 states are in various stages of adoption of this accord. Check the IMLC website to learn if your state is among them.

A side effect of IMLC adoption is that it will soon be realistic for medical spa chains to conduct initial exams from a central location, which certainly could help expand their profit potential. This aspect of the story is developing, but it could have industry-altering ramifications.

Learn About It
With imaging technology such as Visia improving rapidly and HD video becoming even sharper and more lifelike, conducting initial exams via telemedicine may very well be the industry’s future.

Learn more about telemedicine and many other legal topics of interest to medical spas at AmSpa’s Medical Spa and Aesthetic Boot Camps. We will be hitting San Jose, Calif., on Sept. 18 and 19, the Chicago suburbs on Oct. 14 and 15, and Atlanta on Nov. 6 and 7. We hope to see you there!

 

Top 5 Most Popular Med Spa TreatmentsOpen in a New Window

Just how well do you know the medical spa industry and the clients that you serve? Would you be surprised to learn that Chemical Peels are the number one service provided in a medical spa? AmSpa's 2017 Medical Spa State of the Industry Report is here to help you decide on which treatments to offer, and how you can receive the biggest return on your investment.

Come to an AmSpa Medical Spa & Aesthetic Boot Camp for more business and legal insights and best-practices.

Let's take a look at the Top 5 Most Popular Medical Spa Treatments:

1. Chemical Peels

A chemical peel is a technique used to improve the appearance of the skin on the face, neck or hands. A chemical solution is applied to the skin that causes it to exfoliate and eventually peel off. The new, regenerated skin is usually smoother and less wrinkled than the old skin.

2. Aesthetician Services  

Aesthetician services involve skin care and beauty treatments such as facials, makeup applications, and hair removal through electrolysis, waxing or other techniques.

3. Botox and Filler Injections

The injection of botulinum toxin--commonly known as Botox, Dysport or Xeomin-- has become very popular for reducing wrinkles and rejuvenating the aging face. First granted U.S. Food and Drug Administration (FDA) approval to treat frown lines in 2002, Botox remains one of the most popular cosmetic procedures on the market, and its popularity continues to rise.

4. Microdermabrasion

Microdermabrasion skin rejuvenation is used as a method of exfoliation, as well as to treat light scarring, discoloration and sun damage, and stretch marks. Treatments include using a minimally abrasive instrument to gently sand your skin, removing the thicker, uneven outer layer.

5. Photo-facial pulsed light (IPL)

Intense-pulsed light (IPL) is a technology used in various skin treatments, including hair removal and photofacials. A handheld flashgun is passed across the skin, delivering a spectral range of light that targets the hair or skin issue. These types of treatments may also be called laser skin rejuvenation, photorejuvenation, or laser resurfacing.

Here's an infographic from the report that shows how all Medical Spa treatments measure up. 

AmSpa members receive a complimentary copy of the report's executive summary. Join today and receive your copy!

 

California Has Strict Laws Regarding Laser Treatments and InjectablesOpen in a New Window

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

The state of California can be viewed as the epicenter of aesthetic medicine. The industry is already huge there, and many more doctors—core and non-core alike—are moving into the market and opening medical aesthetic practices in the state. Due to the size of the medical aesthetic market in the state, California’s Board of Barbering and Cosmetology tends to set a standard for other regulatory agencies around the country, so even if your medical spa isn’t located in the Golden State, it’s worth paying attention to what happens there to learn what might be forthcoming in your neck of the woods.

 

In California, there are very specific regulations that govern who can perform which treatments at a medical esthetic practice. These rules are very strict—much stricter than many medical spa owners and operators understand, and much stricter than in most other states.

Lasers

For example, the Medical Board of California and the California Board of Registered Nursing have ruled quite clearly that anybody with less certification than a registered nurse should not be firing lasers. So essentially, the operation of aesthetic lasers in the state of California must be limited to registered nurses, nurse practitioners, physician assistants, and doctors.

 

We have seen that in California, many laser centers allow lasers to be fired by people who do not fit into these categories—typically laser technicians. Unfortunately for these facilities, the Medical Board of California, the California Board of Barbering and Cosmetology, and the California Board of Registered Nursing are making a conscious effort to crack down on practices such as these. The doctors who own and operate practices where estheticians and laser technicians are permitted to fire lasers can be punished severely.

 

It is important to understand that even if a person is a so-called certified laser technician, he or she is not necessarily permitted to fire lasers in California. Additionally, doctors in the state are not permitted to delegate laser services to employees who are no higher than registered nurses in terms of certification. We recently have seen several estheticians cited by the Board of Barbering and Cosmetology, as well as several doctors cited by the Medical Board of California for not following these rules, simply because the doctors and estheticians are not familiar with the specifics of the state laws. As is the case with most legal issues, ignorance is not an excuse, so if you believe your California medical spa might not be compliant, consult a healthcare attorney and make the changes that he or she recommends. (Note: The American Med Spa Association (AmSpa) works with a national law firm that focuses on medical aesthetic legalities and, as a member.)

 

Injectables, microneedling and dermaplaning

The situation in California concerning injectables is somewhat similar. In the Golden State, nurses and other licensed medical professionals can inject Botox and fillers and conduct microneedling and dermaplaning treatments, but under no circumstances should anyone else be doing it. This is another area that is being focused on by the Medical Board of California, the California Board of Barbering and Cosmetology, and the California Board of Registered Nursing.

 

“This isn’t new—estheticians cannot penetrate the skin,” said Kristy Underwood, executive director of the California Board of Barbering and Cosmetology, at the AmSpa Medical Spa Boot Camp in San Jose, Calif., in September 2016. “They also can’t use any metal needles, period … [California] estheticians are prohibited from using metal needles, as well as anything that might be used in a manner that is disapproved by the FDA.”

 

Underwood also spoke about the issue of needle depth.

 

 “[California] doesn’t define the depth,” she said. “We do say that [estheticians] can’t go below the epidermis.”

It is worth noting that thus far, microblading—a treatment in which fine incisions and ink are used to create a semi-permanent makeup-like definition, typically for eyebrows—has thus far escaped scrutiny from these regulatory agencies. This is because the state considers that this particular treatment is governed by tattoo licenses. Therefore, if your medical aesthetic practice is offering this service, you should make sure that the people who are performing it have tattoo licenses, which in California typically are issued by counties. Otherwise, your practice is open to regulatory intervention.

 

We will be discussing these and many other legal topics of interest to California medical spas at our San Jose Medical Spa and Medical Aesthetics Boot Camp, which will take place on Sept. 18 and 19. We have reached out to both the California Board of Barbering and Cosmetology and the Medical Board of California, and we hope members of both will pop in to answer any legal and regulatory issues attendees may have. Click here for more information and to register for the Boot Camp. We hope to see you there! 

 

Top Medical Spa Legal IssuesOpen in a New Window

The medical spa industry exists at the unfortunate confluence of state statutes, regulations, and often, the rules of multiple professional boards. Although it is easy for a savvy veteran of the medical spa industry to unintentionally run afoul of this web of regulation, it is also shockingly common for some medical spas to be noncompliant with even the most basic of rules. Equally shocking is that the reason behind this noncompliance can be traced back to simple maxim: Many, if not most, of the services offered in medical spas constitute the practice of medicine.

All things considered, perhaps it’s not that surprising that this basic tenet gets overlooked, because medical spas go out of their way to create welcoming, relaxed environments in which patients can receive aesthetic or cosmetic treatments and services. This cultivated “retail” feel is intentional and is antithetical to the feel one often experiences when visiting a doctor, which is perhaps why the fact that medical spa services are the practice of medicine can also easily be overlooked or ignored. However, it is important for both the medical spa and the spa’s clients to bear in mind that most medical spa services do constitute the practice of medicine and should be treated accordingly.

KEY PROBLEM AREA NO. 1:

THE INITIAL EXAM

One key area in which medical spas are often noncompliant is the initial examination of a patient seeking treatment at a medical spa. In the American Med Spa Association’s (AmSpa’s) recent 2017 State of the Medical Spa Industry Report, 37% of respondents admitted that they either do not perform a good faith examination prior to a patient’s first treatment at the medical spa or that the examination is not performed by a physician, physician assistant (PA), or nurse practitioner (NP). Good faith examination is a term used in California to mean the performance of an appropriate prior examination and medical indication before pre- scribing, dispensing, or furnishing a dangerous drug, which would include botulinum toxin type A or fillers prescribed for a patient. Although the good faith examination serves a specific purpose, the responses to the AmSpa survey inform a broader area of noncompliance, because physicians, or the mid-level practitioners to whom they can properly delegate the task, often do not perform an initial patient examination or prescribe treatment plans for medical spa patients. And while the semantics might differ, all states have some requirement that a physician must prescribe a course of treatment before medical spa services may be rendered.

In most states, this initial assessment may be delegated to a PA or NP when proper delegation and supervision protocols are followed, but it would be beyond the scope of practice for a registered nurse (RN) or licensed practical nurse (LPN) to engage in this diagnosis phase of the treatment. This becomes a problem for medical spas, because it is common for a RN to see and treat patients in the facility without the patient ever coming into contact with a physician or a mid-level practitioner, such as a PA or NP. This means that even if the RN performs an initial assessment, that nurse would have acted outside the scope of his or her authority and that medical spa just joined the ranks of the 37% of spas that fail to perform a proper initial assessment of the spa’s patients. This makes this medical spa noncompliant with state law or regulation.

This issue is further complicated by the emergence of telemedicine as a viable alternative through which health care can be delivered, as it begs the question of whether an initial assessment that complies with state requirements
can be completed via telemedicine. To make matters worse, telemedicine is a still developing and evolving legal concept, and laws vary widely from state to state. When it comes to performing the initial assessment via telemedicine, states generally fall into three schools of thought: (1) the initial assessment cannot be performed via telemedicine at all; (2) the initial assessment may be performed via telemedicine where the physician, PA, or NP is present through streaming audio and video, and a nurse is physically present with the patient to guide them; or (3) the initial assessment may be performed via telemedicine where the physician, PA, or NP is present through streaming audio and video. Because many states lack a comprehensive statutory or regulatory structure addressing telemedicine, a medical spa wishing to implement 
initial assessments via telemedicine would be safest by seeking legal counsel on compliance requirements of the state.

HOW DOES YOUR MED SPA STACK UP?

 

KEY PROBLEM AREA NO. 2:

 COMMISSIONS

Another area where medical spas commonly fail to comply with regulation is in the payment of commissions to people working in spas for the performance of specific services. In fact, according to AmSpa’s 2017 State of the Medical Spa Industry Report, 31% of respondents pay commissions for the performance of certain medical treatments. Commissions do not, in and of themselves, violate state law. Rather, commissions fall within a veritable minefield of regulations that intersect to make what otherwise would be a benign form of compensation when properly structured into a payment that is at best unprofessional conduct and at worst illegal. Improper commissions are commonly referred to as fee-splitting, which can be true, but such commissions actually run the risk of violating multiple areas of the law, including fee-splitting, kickbacks, the corporate practice of medicine doctrine, or physician self-referral laws.

Fee-splitting is defined as the practice of sharing fees generated from the performance of professional services with other persons as compensation for referring a patient. Kickbacks are somewhat different from fee-splitting as the focus is not on the source of the income (professional services), but rather whether the compensation, regardless of source, was used to generate referrals.

Kickbacks are generally defined as any sort of compensation, money or otherwise, that is directly or indirectly given or received to induce or reward patient referrals. Physician self-referral prohibitions go hand-in-hand with kickbacks, because they prohibit a physician from paying for referrals to or from another medical practice in which a physician has an ownership interest. Self-referral prohibitions often can be avoided by simply disclosing to a patient the physician’s interest in the practices, and the fact that a fee is being paid for the referral in the form prescribed by a particular state.

Finally, the corporate practice of medicine doctrine prohibits certain business entities or unlicensed individuals from practicing medicine or employing a physician to provide medical services. This means that a commission that (1) is a portion of a professional fee or (2) is paid as compensation for giving or receiving referrals or (3) is paid between entities in which the same physician has an ownership interest or (4) is paid to persons ineligible to have ownership in a medical spa all potentially violate state law or regulation, depending on the particular prohibitions that a state has codified.

Naturally, this raises the question of when can commissions be paid for the performance of medical services. The simplest answer is to avoid commissions to navigate the regulatory mine- field. The best practices of medical spas are to pay a bonus for specified performance metrics or pay a discretionary bonus.

NAVIGATE CAREFULLY

The payment of commissions and the performance of proper initial assessments of medical spa patients are just two examples of noncompliance. Because medical spas exist at the intersection of state law, regulations, and professional board rules, it is easy for a well-intentioned medical spa to be noncompliant. With that in mind, always remember that most treatments at medical spas are considered to be the practice of medicine and everything from the assessment of the patient to the delivery of treatments should be navigated carefully. Also, if a medical spa is going to use incentives as part of a compensation package for its employees, do not pay commissions. Finally, if you ever have any questions or concerns regarding your spa’s compliance with laws, regulations, and professional board rules, please seek legal counsel. (Author’s note: The American Med Spa Association (AmSpa) works with ByrdAdatto, a national law firm that focuses on medical aesthetic legalities and, as a member, along with a number of other great benefits, you receive a free initial consultation. To learn more, click here.) 

This article was originally published in Modern Aesthetics May/June 2017 Supplement issue.

MICHAEL S. BYRD

As the son of a doctor and entrepreneur, Michael S. Byrd , Partner at ByrdAdatto Law Firm, has a personal connection to both business and medicine. He routinely lectures at continuing medical education seminars on the various business and legal issues that medical professionals face. Outside of healthcare, he has handled sensitive and complicated business matters for entrepreneurs, business owners, attorneys, CPAs, high net worth individuals, and public figures. He is also active on the Board of Directors of the LEAP Foundation, an organization that provides pro bono medical services to those in need.

BRADFORD E. ADATTO

Bradford E. Adatto, Partner at ByrdAdatto Law Firm, decided to become a lawyer during sixth-grade Career Day, when he promised to represent his best
friend, a future doctor. Adatto’s background is in regulatory, transactional, and securities law. Having worked in healthcare law his entire career, he has an in-depth knowledge of the “do’s and don’ts” of this heavily regulated industry. Adatto is actively involved in various community and philanthropic associations, and serves as a Board Member of Carry the Load, a charitable organization founded to help veterans and their beneficiaries.

 

Shady at Best, Dangerous to Patients at Worst | Parallel ImportationOpen in a New Window

As you no doubt are well aware, botulinum toxin treatments—primarily Botox, but also including competitors such as Dysport and Xeomin—are among the most popular procedures in the medical aesthetic industry. According to the American Society for Aesthetic Plastic Surgery (ASAPS), more than 4.25 million of these treatments were administered in the United States in 2015, for a total expenditure of more than $1.35 billion—the most of any cosmetic procedure, surgical or otherwise. At an average of $317 per treatment, botulinum toxin is affordable for patients, yet still quite profitable for practices. But some want more, and they are beginning to put themselves in danger in the pursuit of larger profits.


One of the ways in which practices are attempting to do this is by buying cheap, usually counterfeit botulinum toxin from other countries, most prominently China. These drugs are not particularly difficult to procure on the Internet if you know where to look and, to some medical aesthetic practices, this represents a way to avoid paying the name-brand premium that legitimate botulinum toxin carries, such as Botox.
While this is shady at best, and dangerous to patients at worst, historically it tended to be fairly easy to get away with. Recently, however, the U.S. Food and Drug Administration (FDA) has stepped up the enforcement of its statutes (fake botulinum toxin is not FDA approved, of course), seizing these drugs at the border and handing down criminal charges against those in the United States who are complicit in their importation, such as the practices that order it.


This enforcement effort has proven to be extremely controversial. “It’s caused quite a bit of angst,” said Michael Byrd, partner for ByrdAdatto, a national business and healthcare law firm based in Dallas. “There’s a lot of unhappiness, even within the governmental agency [FDA]—they refer to themselves in a derogatory manner as the ‘Botox police’ or the ‘Allergan police.’”
FDA agents may feel like their strings are being pulled by a corporation, but this is also unquestionably a matter of maintaining the health of the botulinum toxin-using public.


“Those who are against it say that it’s really just action on behalf of Allergan for Allergan to keep their prices [high]. Those who are for it, as you might suspect, point to patient welfare.”
-Michael Byrd, partner for ByrdAdatto 


Regardless, enforcement has increased, and the charges you can incur as a result of being caught with counterfeit botulinum toxin are very serious. If your owner or operator is found guilty of them, they could theoretically serve jail time in addition to facing heavy fines and the suspension of their medical licenses.


Medical aesthetic practices have also attempted to purchase less expensive botulinum toxin treatments by engaging in a practice called “parallel importation,” whereby a licensed foreign entity purchases legitimate US-produced drugs at a lower rate than US-based distributors (due to local price controls) and then resell them to US-based practices for far less than it would typically cost for the practices to procure them from domestic sources. The US Supreme Court broadly upheld the legality of this practice in the case of Kirtsaeng vs. John Wiley & Sons, Inc. (2013), although that particular case related to textbooks, not prescription drugs. As such, there are still some grey areas involving FDA compliance that make this practice risky, despite the fact that every step of the process seems to respect the laws of both the country in which the outlet is located and the United States.


“Enforcement typically stems from an employee, patient, or American industry representative reporting a foreign label on the product. Because the labeling is different on legitimate US products purchased by a foreign entity, practices engaging in parallel importation are also being reported,” explains Byrd. “When I counsel my medical spa or cosmetic practice clients, [I tell them] you have to recognize the risk that comes with any effort to utilize parallel importation. Even if a client is ultimately not found guilty of wrongdoing, an enormous business cost comes with losing inventory in a raid, legal costs to defend the action, and the business disruption that comes with an enforcement action. There is, of course, also risk regarding the legality of the use of parallel importation for prescription drugs. And so, my counsel would be that if you do anything other than buy an FDA-approved and US-distributed product, you have to recognize both of these risks.”


For now, it is probably best not to engage in parallel importation, but it is entirely possible that in the near future, it will be a viable way to purchase FDA-approved products.


 
AmSpa provides a variety of legal and regulatory resources for medical aesthetic practices and medical spas to help you stay legal and compliant. Learn more about our member benefits here


This article originally appeared in the December issue of Modern Aesthetics.

 

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