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Scary Patients Can Haunt Your Practice

Posted By Aly Boeckh, Tuesday, October 31, 2017

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.
 

Tags:  Bad Patients  Med Spa Law 

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Streaming Surgeries Raise Issues for Medical Spas

Posted By Administration, Thursday, October 26, 2017

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.

Tags:  Live Streaming  Med Spa Law  Plastic Surgery 

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Corporate Practice of Medicine Issues in Illinois Medical Spas

Posted By Administration, Tuesday, October 24, 2017

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.

Tags:  Illinois Corporate Practice of Medicine  Med Spa Law 

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How Environ Skin Care is Dominating the Medical Spa and Aesthetics Industry

Posted By Aly Boeckh, Saturday, October 14, 2017

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

Tags:  Dr Des Fernandes  Environ Skin Care  Med Spa Retail 

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Who Can Legally Fire a Laser In Georgia?

Posted By Aly Boeckh, Tuesday, October 10, 2017

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!
 

Tags:  Georgia Laws  Lasers  Med Spa Law 

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

Posted By Aly Boeckh, Thursday, October 5, 2017

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.

Tags:  Med Spa Employee Types  Med Spa Stats 

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FTC Reiterates Social Media Influencer Guidelines

Posted By Aly Boeckh, Tuesday, October 3, 2017

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. 

Tags:  Med Spa Law  Social Media Influencers  Social Media Marketing 

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Can Dentists and Chiropractors Own Medical Spas?

Posted By Aly Boeckh, Thursday, September 28, 2017
Updated: Tuesday, October 31, 2017


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.
 

Tags:  Chiropractors  Dentists  Med Spa Law  Med Spa Ownership 

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Update on Illinois Bill to Grant Advanced Practice Registered Nurses Full Practice Authority

Posted By Aly Boeckh, Tuesday, September 26, 2017

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.
 

Tags:  Illinois Nurse Practice Act  Med Spa Law  Nurse Practitioners 

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Who Can Perform Microblading in a Medical Spa?

Posted By Aly Boeckh, Wednesday, September 13, 2017

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.

 

Tags:  med spa law  microblading 

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