California Medical Board: Use Of Mid-Level Providers for Lasers, IPLs, Botox, & Other Treatments

The State Medical Board of California has addressed the Use Of Mid-Level Providers for Lasers, IPLs, Botox, & Other Treatments. (Links to PDF) It's a common question that is often brought up over in the discussion areas.

You should read this information carefully. Although it's specific to California, the information is substantially similar to many states.
Read also: Medical Spa Legal: How to... Medspa Legal Discussion Area  l  Building a Medispa inside your practice  l  Medical Spa Franchises

From the Medical Board of California:

Due to an influx of calls to the board regarding who may perform what type of medical / cosmetic procedure and where, the following frequently asked questions and responses are provided for informational purposes and as a reminder. This is a reprint and update to an article published in the October 2002 Action Report.

Who may use Lasers or Intense Pulsed Light devices to remove hair, spider veins, and tatoos?

Physicians may use Lasers or Intense Pulsed Light devices. In addition, Physician Assistants and Registered Nurses (not Licensed Vocational Nurses) may perform these treatments under a physician's supervision. Unlicensed Medical Assistants, Licensed Vocational Nurses, Cosmetologists, Electrologists, or Estheticians may not legally perform these treatments under any circumstance, nor may Registered Nurses or Physician Assistants perform them independently, without supervision.

Who may inject Botox?

Physicians may inject Botox, or they may direct Registered Nurses, Licensed Vocational Nurses, or Physicians Assistants to perform the injection under their supervision. No unlicensed persons, such as Medical Assistants, may inject Botox.

I've been approached by a nurse to be her 'sponsoring physician' for her laser and Botox practice; would that be legal?

No. There is no such thing as a 'sponsoring physician'. Nurses may not, under California law, employ or contract with a physician for supervision. A  nurse may not have a private practice with no actual supervision. While the laws governing nursing recognize "the existence of overlapping functions between physicians and registered nurses" and permit "additional sharing of functions within organized health care systems that provide for collaboration between physicians and registered nurses" (Business and Professions Code section 2725), nurses may only perform medical functions under "standardized procedures." The board does not believe this allows a nurse to have a private medical cosmetic practice without physician supervision.

I've been asked by a layperson to serve as a "Medical Director" for a "medi-spa" that provides laser and other cosmetic medical services; would that be legal?

No. No one who cannot legally practice medicine can offer or provide medical services (Business and Professions Code section 2052). A physician contracting with or acting as an employee of a lay-owned business would be aiding and abetting the unlicensed practice of medicine (Business and Professions Code sections 2264, 2286, and 2400). To offer or provide these services, the business must be a physician-owned medical practice or a professional medical corporation with a physician being the majority shareholder.

I see these ads for "Botox Parties" and think that it has to be illegal. Is it?

The law does not restrict where Botox treatments may be performed, as long as they are performed by a physician or by a registered nurse, licensed vocational nurse, or physicians assistant under a physician's supervision.

Who may perform microdermabrasion?

It depends. If it's a cosmetic treatment, that is to say it only affects the outermost layer of the skin or the stratum corneum, then a licensed cosmetician or esthetician may perform the treatment. If it's a medical treatment, that is to say it penetrates to deeper levels of the epidermis, then it must be performed by a physician, or by a registered nurse or physicians assistant under supervision. Treatments to remove scarring, blemishes, or wrinkles would be considered a medical treatment. Unlicensed personnel, including medical assistants, may not perform any type of microdermabrasion.

I would like to provide non-medical dermabrasion, and hire an esthetician to perform that and also cosmetic facial and skin treatments. What do I need to do?

It is legal for physicians to hire licensed cosmetologists or estheticians to perform cosmetology services, if they have obtained a facility permit from the Bureau of Barbering & Cosmetoloty. All licensed cosmetologists, including estheticians, must perform their services in a facility with a permit.

Why can't I use a medical assistant instead of a nurse?

Medical assistants are not licensed professionals. While doctors have become accustomed to their assistance in medical office practices, medical assistants are not required to have any degree, nor do they have to pass an examination or be licensed. For that reason, the law only allows them to perform technical supportive services as described in sections 2069-2071 of the Business and Professions Code, and Title 16, California Code of Regulations, sections 1366-1366.4.

What is the penalty if I get caught using or helping an unlicensed person to perform medical treatments?

The law provides a number of sanctions, ranging from license discipline to criminal prosecution, for aiding and abetting the unlicensed practice of medicine. Physicians could be charged with aiding and abetting unlicensed practice, and the employee could be charged with the unlicensed practice of medicine. 

I understand that all of these practices may be illegal, but I see advertisements all the time for these kinds of illegal practices. What should I do?

You may file a complaint with the Medical Board. To do so, please send the advertisement, the publication name and date, and your address and telephone number where you may be reached,  to our Central Complaint Unit at 1426 Howe Avenue, Suite 54, Sacramento, CA 95825. The board will contact the business, inform them of the law, and direct them to cease any illegal practice. If it is simply the advertisement that is misleading, they will be directed to change or clarify the ad.

It is impossible to cover all of the relevant legal issues in a short article, and these questions and answers are not a substitute for professional legal advice. Physicians may want to consult with their attorneys of malpractice carriers about the use of their office personnel. In addition, the board has a number of written materials with more thorough information on this subject. There are legal opinions on the use of lasers and dermabrasion, materials outlining the legal limitations on use of medical assistants, as well as the actual statutes and regulations. To request any of these documents, please contact the Medical Board of California, 1426 Howe Ave., Suite 92, Sacramento, CA 95825, or call (916) 263-2389.

Top 10 lies of medspa technology salespeople.

These are the lies of salespeople from IPL, laser, and technology companies.

1. "We're committed to helping you grow your business."  This means that the salesperson has attended sales training and memorized a list of popular sales pitches. The information and 'sales growth' kits available from the tech companies are really pitches for building their name recognition. Sales people get paid for selling. Once your sold, you're in.

 2. “This is how (name of competitor medical spa) did it, and it worked.” If a tech salesperson is telling you about your competitors, they're telling your competitors about you too. The only contact sales staffs have are sales related. The information passed around is just what someone told them was the case.

3. “We'll take care of training your staff.” Lasers and IPLs almost always come with training packages. The sales rep will come in and give you a day or so of time. The rest will be up to you so you'd better attend as well since you'll be doing the training from now on.

4. “This is an easy business decision.” This is not an easy business. One of my buddies is one of the largest buyer and seller of used aesthetic equipment. He buys it from docs going out of business and sells it to docs going into business. (The salient part is docs going out of business.) This is a 'retail' medical business, not an easy one.

5. “This is how much this IPL/Laser/whatever costs.” The retail cost of lasers and IPL's is far above the street cost. Check out these listings on Ebay. A Cutera Xeo with a list price of $127,000 has a street value of around $70,000. Unless you need support or this is your first device, you will want to investigate used equipment.

Add your top lies of tech salespeople in the comments and I'll add them to this list. 

American Laser Clinics Hires Armed Guard To Prevent Doc From Seeing His Own Patients.

American Laser Clinics decided to wage war on one of their medical directors by hiring an armed guard to prevent him from seeing patients or accessing charts while continuing to treat patients and insisting he was providing oversight.

American Laser Clinics (purchased Advanced Laser Clinics but kept the ALC so that they didn't need new monogramed towells) has a number of laser hair removal clinics around the country. (You can read more about my thoughts on medspa franchises and ALC here.)

Evidently, American Laser doesn't like any lip from physicians. Check out this photo showing a guard standing in the waiting area of American Laser Clinics to prevent the doctor from seeing patients or seeing charts. While the headline appears tabloid, it's completely accurate. The physician concerned contacted me for my opinion as well as DOPL (the Utah licensing enforcement agency).

(This is an article in progress. Check back later.) 

Medical Board Accuses Second Doctor In Medspa Death

The North Carolina Medical Board filed unprofessional conduct charges Thursday against a doctor who headed a laser hair removal clinic where a student died last year.

Shiri Berg, a 22-year-old North Carolina State University student, died of a Lidocaine overdose Jan. 5, 2005, after she applied a powerful anesthetic gel to her legs in preparation for a laser treatment at Premier Body Laser and Skin Clinic, in Cary.

The medical board alleged that Dr. Samuel Wurster, the former director at Premier Body, acted improperly by authorizing Triangle Pharmacy to blend the prescription-strength gel and then permitting the laser clinic to distribute the gel to patients without a physician taking a medical history or giving a physical examination...Link to the entire story.

Do Medical Spa Franchises Work For Physicians?

We all want to hear from medical spa franchise's.

I receive 10 or so inquires each week from physicians around the world regarding medical spas or medspa technologies. These physicians are often seeking information or recommendations about the growing number of medical spa franchises that are marketing themselves as 'turn-key solutions'.

There are 3000 physicians and medical spa professionals who visit this site each month including a number of individuals involved with medical spa franchises and licenses. So Medical Spa Franchises, here's your chance to let us hear some testimonials from satisfied clients.

If you own a medical spa franchise or operate under a license agreement, please used the email link here. You may sign it or post anonymous if you prefer. Either way, I'll ask you to include your name and email to ensure that franchises are not posting glowing reviews of themselves or flaming diatribes about each other. (Any individuals may remain antonymous if they wish.) We'll post all reviews and testimonials here.

What’s wrong with Medical Spa Franchises and Medspa Consultants?

We receive numerous inquiries and questions along the lines of: "Should I hire a consultant? Which one? How can I check their reputation/references? Is this franchise a good one? etc.etc.etc." We're not looking to flame anyone in particular but there is obviously a problem with what's currently going on, and what expectations are and should be. The fact that there are so many posts from unhappy medical spa franchises and doctors unhappy with consultants points to a problem. So...

What’s wrong with Medical Spa Franchises and Medspa Consultants?

 

This post is should not be construed as an indictment of any individual or specific business but as an opinion about why certain conditions exist in this market.

Most doctors who are running medspas don’t have a great deal of business savvy and are bumping along from one rail to the other trying to find a way to the gravy train. The truth is that most medical spas don’t really make that much money. (By 'much money' I mean what they think they’re going to be making.)

Why? There are a number of reasons. Mostly it’s because there is still a disconnect between medicine, and the business of medicine. Doctors usually want to “do” medicine, but the business keeps getting in the way. They don’t like doing it and are not’t particularly good at it anyway. They bump along in one direction until they hit an obstacle and then, zip, off they go in another.

An example: Obese patient comes in for hair removal on his back. Patient takes twice as long to treat. Staff tells doctor the treatment took twice as long as scheduled. Doctor decides that he’s lost money so, on the spot decides that he’ll now charge by the minute because he's not going to loose money on a treatment. True story. For a service industry this is tantamount to declaring war on your patients. It's just not good business sense.

Not that docs have it easy. A doctors office is an endless stream of people walking in with their hands out. Pharmaceutical reps, yellow pages sales guys, radio, etc ad nausea.

Doctors are split between something they’re good at and trained to do, and something they don’t like and really know nothing about. It’s know wonder they end up looking for something that promises to hold their hand and walk them to the promised land of endless, high-revenue, happy patients beating their door down.

Here enters the “spa consultants” and medical spa franchises sales guys. These can-do types look you straight in the eye and let you know that they have the secret sauce that will turn your humble abode into the big house on the hill. They come armed with a stack of success stories, nice shoes, and impressive client lists.

But if you pull back the curtain you will find these guys peddling fast. The simple truth is that real medical spa consultants own or run real, operating medical spas and medical spa franchises are in the business of selling medical spa franchises.

Medical Spa Consultants: The medical spa craze has these guys springing up like weeds in spring. Most of these self titled medspa gurus used to own or run a spa until they realized you can’t make money doing that. The average “spa” in the US ends up with about 6% net margins if it’s making any money at all. (The average physicians net margins are 50-60%.) These ‘medspa consultants’ figured out early that they could make a lot more money telling people how to run their business than actually running a business. Do the math. If a medical spa consultant could actually make as much money as they're claiming that they can help you make, they’d be running their own medical spas. Instead, they spring into action with the unsure start-up. The pitch comes with lots of emphatic direction, hints of inside knowledge about retail display, scripts that let your staff know exactly what to say, and the ever popular “up-sell”. (But I digress.)

Medical spas are a business and they operate according the same business principals as any business. You have to take in more money than is going out. If you want to end up rich, you have to take in a lot more money than is going out. The way you’re going to do that is what a medical spa consultant should be telling you. What you really get is handful of prepackaged, one-size-fits-all info that puts all of the onus on you.

Medical Spa Franchises: While franchising is a time-tested business model, I have serious reservations about the current crop of medical spa franchises that are springing up around the country. There are some benchmarks that you should examine before you make a decision as to whether you’re better of as part of a medspa franchise or go the road by yourself. Franchising is a preferred method for businesses that want to grow using other peoples money. While there’s nothing wrong with this it should be a wake up call and enter into any arrangement with your eyes open. The money they’re using to grow the business is yours.

(Let me make another note about Medspa Franchises. Most doctors don’t want to be a “Franchisee” so franchises are using “Licensee” or the ever popular “Business Partner” as terms to get around using Medspa Franchise. But franchise law states that if you: take royalties of any kind, provide the use of names and marks, and provide any ongoing support… you’re a franchise and subject to franchise law no matter what you call yourself, period. There are a number of “licensing” guys out there attempting to circumvent franchise law and calling their offering a “medical spa license”, but if you’re receiving the three items listed above, you’re a franchise.)

Medspa Franchise Business Models: Lets take a peek at how medical spa franchises are currently built.

Sona Laser Clinics:

On first blush, Sona Laser Clinics looks somewhat promising. They’re the “experts in laser hair removal” and are selling medspa franchises like crazy around the country. They specialize in just the one treatment, laser hair removal, (although now offering more) and have low start up technology costs since they utilize a revenue sharing plan.. Best of all, they offer exclusive territories that mean that you’ll be the only Sona center around and don’t have to compete with other Sona clinics in your neighborhood that keep stealing your patients. Let’s look behind curtain number 1.

Sona has problems. Lots of problems. First is that they’re in the business of selling medical spa franchises, not making ongoing revenue for their “business partners”. They actually sold of the medical spas that they personally owned. That touted revenue sharing plan means that as a Sona Franchisee, you’ll be splitting your profits with Sona after your first $50k in income each month. ($50,000 is one hell of a lot of hair removal before you ever see a dime.) Now not all of that first $50k goes to Sona, they require that you spend around $20k a month in advertising to build the name. (Sona Laser Clinics name, not yours.) In addition, while having an exclusive territory sounds good on its face, the real problem is that you don’t. You can’t. And you never will. While you think you have an exclusive territory, every doc from yin to yang is opening up a medical spa and using the coolest new technology while you’re stuck using third tier lasers and don’t have anyone close to help with your brand building efforts. You’re almost literally tied to the mast head and alone in a marketplace where competition is constantly assailing your every effort. Worst of all, Sona’s offering is really limited to laser hair removal by a nurse. (The medical director is available by phone.) One thing is sure in a medspa: Patients want to see a doctor. Here is a list of Sona Medical Spas, Medical Directors.

My personal interactions with Sona Franchise's have been less than inspiring. One franchisee I know has been open for 18 months and never been able to pay himself anything. In another case, Sona Laser Clinics in Utah just closed its doors and walked away. The local television “fraud” reporter followed them out of state, hounding them about all the money they had collected in pre-paid package treatments that would never be fulfilled. The reporter showed the list of complaints from the Better Business Bureau and interview patients who used ‘ripped off’ at least three times during the story. The poor Sona Franchisee was totally trashed and reduced to tears. She comments that it costs them $150,000 more a year than they thought it would to run the clinic and that all the money was gone and the business was bankrupt. Needless to say, the Sona name is buried in that market.

Solana Medical Spas

Now here is a true medical spa franchise. Solana is fairly representative of the run of the mill pure franchise factory. Here’s the pitch. Headquartered in California, Solana offers individuals the ability to participate in the booming medical spa market.

Here’s a direct quote from their site, “Solana MedSpas top franchise Consulting Program offers a unique, turnkey MedSpa Development System that allows medical and non-medical professionals to capitalize on the growing demand for aesthetic medical skin care. You do not need to be in the medical industry to own and buy a med spa franchise!

Get that last part… No medical experience or credentials necessary. If you have the money, you’re in. How much money? Just $245,000 - $405,000 and you’re in the Botox beautification business baby!

Sonlana Medspas come from the fast talking business world. And I do mean fast talking. John Buckingham is the president of Solana Medical Spas and he really talks fast. Mr. Buckingham has a thoroughly impressive resume; (I do a disservice here because I can’t really remember everything on his resume but be assured its impressive.) Mr. Buckingham’s no dummy either. He’s got a foot in every camp that has anything to do with medical spas. Here’s part of Mr. Buckingham’s resume: “Buckingham is a founding board member of the International Medical Spa Association and serves as their vice president of corporate affairs. He is also co-creator with the University of California, Irvine of their new Spa and Hospitality Certificate Program. Prior to joining Solana MedSpas, Buckingham was Chancellor and President of the Brooks College System, headquartered in Long Beach, Calif. Buckingham holds a Bachelor of Science in Pharmacy with distinction from Purdue University and a Master's in Business Administration from Harvard Business School.”

Of course, one of the things that omitted from his current resume is that Solana wasn’t Mr. Buckingham’s first medical spa franchise business. Nope. Mr. Buckingham was brought into the medical spa franchise business as an employee of Dr. Mo Biring, who happened to run the heart and lung transplant unit of Cedars-Sinai Medical Center. Dr. Biring had the idea to start franchising medical spas (Healthwest) and brought in Mr. Buckingham to run the business. After a number of setbacks (Which included being shut down by the State of California for selling medical businesses to non-physicians.) Mr. Buckingham took the business plan and some key personnel, changed the name from (Solare Medspas? Now Inaara Medical Spa Franchises) to Solana Medspas and set up shop in competition with his former boss. While you never know what has caused or contributed to decisions in the past, that kind of story is one that raises some questions.

Since that time Solana Medical Spas has changed their business model to skirt franchise law. They now take your money and offer ongoing support, but they removed their 'marks and names' portion of their offering. What does that mean? It means that all of their medical spa franchise clients use their own names and aren't part of a larger marketing pool. Exactly what you're buying a franchise for! Who would want to buy a McDonalds franchise if you had to name it Fred Burger and compete as a company of one?

Solana Medspas offers the stock and trade of standard medical spa franchises. Turn key solutions and the big four medspa procedures that are referred to as “low hanging fruit”, Botox, fillers, IPL fotofacials and the ever popular laser hair removal.

Solana has gone to great lengths to look attractive to potential medspa franchises. Lots of impressive charts and graphs, Vice-Presidents galore with long resumes and corporate background. If you sit through one of their franchise discovery day, you’ll find yourself surprised that any other medspa business even exists in the face of such collective business acumen.

So how much does cost to get into Solana Medical Spa Franchises? $80,000 Management Consulting Fee with a minimum investment of $400,000. They'll want you to list your personal assets here.

But Solana Medspas not alone.

American Laser Centers (Advanced Laser Clinics)

 

American Laser Centers another twig on the medspa franchise bush with a different model than Solana. American Laser Centers have a number of company owned stores as well as a medical spa franchise. They also had a 'medical spa licensing program' (not currently working) that charges a flat rate each month rather than a percentage of sales so that you’re “not penalized for success” (A particularly great line reminiscent of ‘death tax’.)

ALC was actually one of the first in the laser hair removal game and achieved a number of early successes attributable to their rapid roll-out and co-location with existing clinics. Their company owned method is to open a clinic “inside” an existing medical practice and “rent” the space from the doc. The doctor feels great about this arrangement since he’s making $4000 a month in rent he wasn’t seeing before and there is increased patient flow. Everyone’s happy. (Note: I can't find a link to the Advanced Laser Clinics licensing program and it may be that they've discontinued it. I'll update later.)

What’s wrong with this picture? Let’s start with the operational setup. American Laser Centers typically staff 3-4 young women who’s average age (at a guess) is 23-24. These staff members run the day to day operations, do the treatments, and collect the money. Where’s the trouble? First, these are employees who end up with a steady stream of cash flowing through the front desk. When you have staff making $9 an hour running a business making $40-60k a month, you have a recipe for all sorts of unwanted goings on. Pocketed cash, treatments after hours, friends and family deals, etc.

American Laser Clinics tries to mitigate these possible scenarios by constant (3 times a day) phone calls with their clinics, but since there is no real “on-site ownership” at each location, problems can and often do arise. Other than the loss of income, there is another serious downside. It’s the location physicians medical license that’s on the line. The ramifications to this type of potential abuse for the physician are serious in the extreme. It’s the doc’s medical licence that’s at risk if something goes wrong.

But ALC has another problem. It’s the doctor satisfaction problem. For company owned laser clinics / medical spas, (those co-located inside and existing practice), you have a situation where ALC is running a $40k< a month operation with three twenty-something’s right under the physicians nose. The doctor is watching everything that’s going on and something occurs to him/her. “Hey, I’m getting $4k a month… but, it’s my butt that’s on the line if something (anything) goes wrong, and it really doesn’t look that hard. If these twenty year olds can run this place, surely I can.”

The result is physicians that become unsatisfied with the program and end up seeking a way to get ALC out and start up their own operation. ALC counters this with heavy non-compete clauses in their contracts. This prevents some docs from acting but leaves a bitter taste.

Strike Three for the Medical Sp Franchise Model: The ‘flat fee’ franchise system for ‘everything you need’.

Now this kind of stuff can really sound good to a hungry doc. No percentage of sales that’s constantly eating into income. Great. But there’s a hidden problem that mirrors that Sona “revenue sharing” conundrum. Since flat fee medical spa franchises are taking only $1,500 a month or so as a flat fee, they have neither the inclination or the income stream to make helping you a priority. It’s just not profitable enough to do so. It’s kind of like buying a “how to start your own medical spa business plan” on the web. i.e. mostly hope. What you’re really purchasing for that monthly fee is a set of 5 cd’s that promise to give you the now famous turn-key solution. What’s on these cd’s? Forms and telephone scripts for the most part. There are also some poorly executed advertising slicks that you can drop your own phone number in and some baubles and trinkets. They could easily fit everything on one cd but of course packaging is everything and who wants to pay $18k every year for life for one cd?

Conclusion: None of this means that businesses selling medical spa franchises are unethical or that there aren't consultants that work hard for their clients and have the best intentions. But whenever you have an industry or market that's exploding the way that medical spas are, you're going to be faced with a 'wild west' situation in which leaders are not clearly defined and 'caveat emptor' is the word of the day. In a new and growing market you will be faced with potential and opportunity, buy also with opportunity cost and the potential that a single wrong choice at the beginning will hamper your success if not sink your venture.

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