In this episode, Michael and Brad share a story involving two hip brothers, a high profile medical spa, and the classic red flag: Medical Estheticians. Tune in as we share legal considerations for medical marketing and the importance of compliance in your scope of practice.
Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.
Transcript
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences. Creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I am your host Brad Adatto with my co-host Michael Byrd.
Michael: As a business and healthcare law firm, we are sometimes triggered Brad by certain buzzwords our clients will say in conversation. We know that there’s a potential disaster when we hear these words and are immediately on high alert. This season’s theme is red flags.
Brad: Michael, do I look different to you today?
Michael: Ding! I’m almost afraid to answer. Why do you ask?
Brad: I received an email just a few minutes ago that I won another best lawyer type trophy, and I am wondering if I look different now?
Michael: First of all, Brad, the humans out there call those [00:01:00] awards, not trophies, but I call them trophies too so maybe we have a commonality there. Let me guess a random marketing company informed you that you that you are the best lawyer in the galaxy?
Brad: It’s weird. Michael, it’s almost like you got the exact same email. I guess our podcast might be popular maybe on other planets.
Michael: Well, I would think so. I mean we try hard, we publish this on I think all, if not most of the podcasts channels that are out there. So I guess our reach is far so I shouldn’t, we shouldn’t be too surprised. I do think we should share with our audience a little bit of the behind the scenes, on all these, as you call trophies, lawyer awards that are out there.
Brad: Well, the general concept is relatively often, you will see the email that we’ve been recognized best in form or [00:02:00] fashion and now we have this opportunity to purchase an advertising or promote our award.
Michael: Yeah. So you get an email that says you won and then they say at the end, you can promote it here and then of course you can also then buy a plaque or a trophy.
Brad: All right. Now we’re not putting these things down because to be fair, Michael, several of these wards are actually legitimate and it truly is an honor.
Michael: Yeah. I mean some of the awards have kind of a peer nomination element to them and they tend to be more legit than kind of the pay for fake trophy awards, like best lawyer in the galaxy. Sorry buddy, that’s one of the ones, there’s no alien peers out there that voted for you. But for example, you and I have both been Super Lawyers for many years with several of our partners. And that’s always an honor when we perceive that recognition
Brad: Yeah and the Best Lawyer and Best Law Firm has recognized by US News. Pretty cool.
Michael: Yep for [00:03:00] sure, for sure. But it is hard sometimes to know, who are the legit award organizations and which ones are trying to make a quick buck off of our competitive egos.
Brad: As long as you recognize that I’m better than you then I know it’s a legitimate award.
Michael: That the award organizations say Brad’s better than Michael? Oh, okay. Yeah ding! Well, a close cousin to these quote, best awards are the companies that hand out new titles to their employees kind of like candy.
Brad: Yeah. These are the often as well you’re not going to get a raise or bonus, but you know, brand new cool title. And we see this routinely, especially in the startup world.
Michael: I know I saw a meme recently that was red flags for women on dating apps. And they said to watch out if a guy listed himself as an entrepreneur, a [00:04:00] founder or a CEO, They say the translation is that they’re unemployed.
Brad: I am going to have to ding you! Isn’t your title CEO?
Michael: Yes Brad, and we’re both entrepreneurs and founders. So I don’t think it’s a good idea to ding me because you’re basically dinging yourself.
Brad: Rats! Okay. I withdraw my ding.
Michael: And so don’t forget about the banks.
Brad: Yeah. Everyone is VP of something. We see special titles also in the medical field as well.
Michael: Yeah. I mean, in elective medicine specifically you’ll have titles that are created that have really a marketing purpose behind it.
Brad: A common one you might see is nurse injector.
Michael: Yeah. There’s no formal certification for a nurse injector. It’s not part of their nursing program, but they want people know that they’re specialists for neurotoxins and fillers.
Brad: And there’s been a lot of controversy recently with physician [00:05:00] assistants. There’s a national group called the American Academy of Physician Assistants. They have changed the name to the American Academy of Physician Associates.
Michael: Yeah. The PA’s movement was not liking the term assistant in their title. And then now they’re getting pushed back from the physicians because the physicians think that this will be confusing, that if you call someone a physician associate it will somehow imply or confuse the patient or the world that they’re actually physicians and not, you know, a physician associate.
Brad: Yeah. And most importantly, for everyone who’s been following this, understand that your license really is issued by your medical board and your particular state. So PAs cannot just change it just because some organization has recommended it is state dependent.
Michael: They can actually get in a lot of trouble. They can follow the trade association and do it in a medical board in a particular state can [00:06:00] come down on them because they’re not designated themselves according to the license that they received.
Brad: Michael, Yeah. I mean, all fascinating, but today we’re not here to talk about Pas, or nurse practitioners, or nurse injectors, or VPs, or the best lawyer in the galaxy.
Michael: Ding! I tried to match your whisper. Our red flag today is a popular title and a classic red flag here at ByrdAdatto when we hear it, medical estheticians.
Brad: Ding!
Michael: Yes, Brad. Good use. Let’s get into today’s story.
Brad: Ding!
Michael: Brad, That’s a little too much there. Our story today centers around two brothers who started a high profile medical spa in San Francisco.
Brad: Ding!
Michael: What now, Brad?
Brad: I don’t know. I was just testing my ding but it’s still working.
Michael: Okay. I am putting Riley on notice that she may have to mute you if you don’t [00:07:00] stop the extra dings
Brad: Don’t do it, Riley! Alright I will try to do better. But I do love this season because I can ding you.
Michael: Yes. I’ve experienced that feeling and deeply, Brad. Okay. Back to our story, we’re going to call the brothers the Fros.
Brad: Ding! Seriously, you just can’t make up a word and expect me to restrain myself, even though you just lectured to me, don’t mute me yet. What does that even mean?
Michael: Well, I combined founder and bros call them the Fros. It seems like a hipster name.
Brad: I’m not certain about the hipster name, but of more like a douchey name, maybe.
Michael: Well, if the shoe fits, let’s just say that the Fros were both. They were kind of fake hipster. So there was definitely this douchey element to them.
Brad: I think maybe it’s just me, but everyone maybe gets a clear picture now. So did you provide any bottle service at your whiteboard?
Michael: I am certain that would have been well-received but [00:08:00] no, the Fros, thankfully we’re actually not a client. They had asked one of our clients to be a medical director.
Brad: Ding! Didn’t we give a show or we’re going to do a show, a medical directors?
Michael: No, but we will, in a few weeks, Brad get memory, you’ve been paying attention to our planning for the seasons. And you are correct to ding the term medical director. Our help with this client are the proposed medical directors set forth a flurry of ding worthy statements. But today. But guess what we’re going to do another episode on medical directors, we’re going to try to focus the dings to an aspect of this story. And so a lot of the stuff that we’ll talk about when we do the medical director story in a few ways actually happened in this story as well. But there’s plenty of dings to be [00:09:00] discussed to center our focus on.
Brad: Let me guess, are there are medical estheticians involved in this story?
Michael: Ding! Impressive, Brad. How did you figure that out?
Brad: Well, you’ll remember I am one of the best lawyers in the galaxy according to this email I received, and also the title of the episode is red flags medical estheticians.
Michael: I am a little less impressed now, but yes, there are medical estheticians coming soon. But let’s first introduce our client, Dr. Ivy.
Brad: Is it like a gardener? Just explain.
Michael: Well, Dr. Ivy was Ivy league trained and had a new and growing practice. He thought being affiliated with the Fros brand would skyrocket this practice. And he also strongly, I can’t emphasize this enough, strongly did not want to go to jail or lose sleep. So he called us to help them with this.
Brad: So first off, I’m [00:10:00] glad that he strongly really doesn’t want to go to jail and lose his license. It’s a sign of a very smart, intelligent person. I’m still waiting for the medical estheticians. Where do they come in?
Michael: Fine Brad. I’ll bring them in now. I was prepping for a call with the Fros and Dr. Ivy to discuss Dr. Ivy’s role. And again, I won’t get into the half a dozen other compliance problems I had red flagged. I’m sure you can picture it with the name, like the Fros. I decided to look up the procedures offered and the staff on the Fros website to understand Dr. Ivy’s role.
Brad: Oh no let me guess, they’re asking Dr. Ivy to be a medical esthetician?
Michael: Ding! Okay Brad, that doesn’t even make any sense. He’s an Ivy League trained doctor. They’re not going to ask him to be a fake made up term like medical esthetician, he’s going to be asked [00:11:00] to supervise. So Brad, I see you drinking something over there. I’m starting to be curious if that’s actually tea.
Brad: It is my tea.
Michael: Okay. Well, so I saw on the website, at least 12 people with the title medical estheticians, specializing in body sculpting procedures.
Brad: Oh ding!
Michael: Yes, Brad Bravo. This is a problem through, let’s talk about what a medical aesthetician is exactly in the eyes of the state, because you aren’t going to find it if you go to any board’s website.
Brad: Nope.
Michael: But typically a medical esthetician is an esthetician licensed by the state board of cosmetology, that’s probably the only licensure you’re going to find if you look them up anywhere you can in that state. But then somewhere along the way, they start to assist with medical procedures, they put the name medical in front of their esthetician name. [00:12:00]
Brad: Yeah I am going to ding that part of it because the board of cosmetology does not provide esthetician in most states the scope of practice actually provide medical services.
Michael: Exactly. I mean, their title was a huge spotlight screaming to the world that they’re not compliant. It is legally impossible to your point, from a compliance perspective, in many states to be an esthetician and provide medical services. And so if you call yourself a medical estheticians you’re just like putting up a huge sign of the regulators.
Brad: Well, that does trigger me almost every single time I see it. The Fros website could and probably if ever investigated would literally be used against them and Dr. Ivy for compliance.
Michael: I know. Let’s take a break, go into commercial, and on other side let’s talk a little bit more about the implications of [00:13:00] using this term medical esthetician.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host Brad Adatto with my cohost Michael Byrd. Now, Michael, this season’s theme is red flags. We talked about the Fros and Dr. Ivy and the term medical esthetician. If it is not compliant to use the term, why do people use it?
Michael: Well, I’ll be [00:14:00] generalizing, but as we said, it’s a marketing term. And so there tends to be this feeling after an esthetician takes a course for training on a procedure like body sculpting that they are now something more than an esthetician. And so terms like medical esthetician are born.
Brad: Yeah. I mean, they’re born out of training courses, which is important. Michael, any time a provider uses a medical device or provides some type of medical service, we all believe that you should have the skills to render such medical service. However, just because you got skills does not necessarily mean you’re actually allowed to do it. And that’s where the confusion comes. There’s a control by your boards of how we want to look at it by what is the scope of practice of your particular profession.
Michael: And it gets even more confusing because a lot of these industry [00:15:00] classes that will, as you said, train you how to use them and that’s beneficial, they don’t know who’s allowed to do what. And so they’re going to train people and there’s this pretty mass confusion that ensues because they think, well, you know, I’ve got this body sculpting course from this company that said, you now know how to do it. You’re now certified. And they think that that somehow translates to a state level and it can cause some big problems. Obviously we get calls sometimes when clients are not happy that they bought a device that they thought their medical esthetician could operate and then they learn otherwise. And to make it more confusing the term medical esthetician is not necessarily a problem in some states.
Brad: True. A little bit of a twist, as noted earlier, the board of cosmetology does not typically give the scope of [00:16:00] practice for medical procedures to an esthetician. Let’s talk about two ways it would be possible for an esthetician to help in a medical procedure, which would then allow them to arguably, arguably use that term.
Michael: Yeah. And arguably probably is a stretch even then, but we can at least talk about when can an esthetician touch medical services and that’s at least substantively getting us somewhere. So in some states like Oregon, for example, they actually have expanded scope of practices for estheticians, and they’re called in Oregon master estheticians. And they are allowed, if you qualify to actually do body sculpting as a master esthetician and there are a few states that grant an expanded ability by the board of cosmetology to do certain [00:17:00] procedures that would typically be kind of medical procedures. You still have to be careful as to whether, again, going back to the question, could you call them a medical aesthetician? I just said, like in Oregon, for example, they’re called master estheticians. So you probably would get in trouble with your board of cosmetology by calling yourself a medical esthetician if you have a specific designation by the board. So depending on the state you would really have to look at that and see is that even allowed?
Brad: Agree and I think the second point that you were getting to, and so in some states it’s set up on a delegation rules, which leave it up to the physician to determine if they believe that you have the right skills to provide that procedure. So this allows a doctor to designate it to an unlicensed person. And when I say unlicensed, I’m referring to a licensed medical person, you do have a cosmetology license, but it’s a little bit different if they have the right training. And as we know, [00:18:00] Texas is one of those states. The twist is the board of cosmetology still does not allow the aesthetician to actually practice medicine. So the esthetician is technically operating more like a medical assistant when they’re doing this medical procedures so it’s almost like they’re taking their badge off while they’re doing it because they’re no longer esthetician, they’re just an MA. You still need to be careful about using this term medical esthetician because the board of cosmetology could still have a problem with it.
Michael: Basically don’t do it. Don’t use the term medical esthetician is probably the takeaway that we want from that.
Brad: Yeah, exactly. And I think if I didn’t say it clear enough, Michael, on this point is on states where physicians can delegate it to those individuals we tell them number one, as you said, don’t use that terminology. And number two, literally, if you have it on your smock, because we know a case in which it said esthetician and they were using lasers and that was not within their scope, they got in trouble with their board. So it sounds [00:19:00] really silly, but take your badge off or whatever and at that moment in time, your laser tech or you are a medical assistant doing injections, whatever it is that doctor has delegated to you. This sounds very silly, but reality that’s the easiest way to be compliant. But, you know, let’s move a little bit forward. What happened with the Fros and Dr. Ivy?
Michael: We had a big call with the Fros and their attorney and Dr. Ivy, and the Fros were told about a half a dozen things that needed to be fixed and they were willing to do those things to have Dr. Ivy agree to supervise. Plus they were going to pay Dr. Ivy over $200,000 per year for this role.
Brad: Ding!
Michael: What was that ding for?
Brad: It goes back to your discussion and in other episodes I was thinking about maybe Too Good to Be True. Physicians typically get paid somewhere between, you know $18,000 to maybe even $60,000 [00:20:00] per year for some type of supervisory role. And obviously I’ve seen it higher for other types of roles, they could be more in California, New York. I mean, that’s a lot.
Michael: Yes. And let me be clear, the money made it tempting for Dr. Ivy. He really, really wanted to be compliant. This was a big temptation, the hardest part of our conversation in this call with this kind of all hands on calls talking about was the last topic, the medical estheticians. I explained that everyone was going to be carrying a ton of risk because only RNs, nurse practitioners, PAs and physicians can perform body sculpting in California. The Fros were incredulous at the thought that they would have to go in and fire a dozen plus medical estheticians, and ultimately they weren’t willing to do that. And the [00:21:00] deal fell apart because of this very issue. So as we kind of wrap up today’s episode, what are some final thoughts, Brad?
Brad: Yeah, I mean the first takeaway, I hope everyone understands and who’s watching or listening to the show. You need to understand we’re not against estheticians providing medical services. I hope you understand. Our job is not to say who can do what our job is to interpret the law and place you, and hopefully your business in the most compliant position. So as you were describing that story, it’s a California based story, you have to put them in that best position. So when providers are using marketing terms in their title, medical esthetician. That’s a major red flag for us as compliance attorneys for a lot of these groups and organizations where we would spot it. And again, I think I said this earlier, it’s almost like a strobe light to your typical, truly well-trained medical board or cosmetology board who may be investigating. And finally, [00:22:00] as we noted many states like Texas, the physician can delegate these services to anyone. So if they were silly enough, they could delegate it to the best attorney in the galaxy if they wanted to, or they can then delegate it to an esthetician who they thought had the skills to provide that. At that moment in time, they really aren’t an aesthetician anymore. They were really, like I said, a medical assistant at that moment time. Michael, what are your final thoughts?
Michael: I am going to jump off where you were talking, it is understanding that a title, there’s this marketing purpose that we understand is out there. There are professional purposes, which by the way, Brad, I would take off your signature block best lawyer in the galaxy because lawyers have the same rules.
Brad: Hold on, Riley cut that, just don’t let anyone know that I have that on my signature block and I’ll just fix it later. Okay she’s nodding.
Michael: [00:23:00] Yeah, I got you. Yeah, you have the use of a name, you’ve got a marketing purpose that people are driven by, and you have a license that tells you your limitations on what you can say. And then just a final thought we haven’t really been touched on today is a title sometimes gives you certain authority to bind a business. So there’s VP titles we hand out like candy, or founder titles or whatever. If you’re trying to give that to someone and that creates a perception that they can go out and sign something on behalf of the business, you are at risk of having that happen, or you can inadvertently if you’re the person giving yourself this title give yourself a fiduciary responsibility. That’s a big deal. You now owe some higher standard to the business. If you all of a sudden call yourself a CEO and you’re not. [00:24:00] So I guess the biggest thought is just understanding there’s more to the name than just the best lawyer in the galaxy.
Brad: Although I am. All right, Michael, next Wednesday we have our series regular Jay Reyero. We will be discussing When Family Dysfunction Becomes Businesses Dysfunction.
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