Nurse Practitioner Pay In New "Medical" Spas

What's a good Nurse Practitioner pay in a new 'medical spa' that wants to offer Botox?

I get lots of individual emails looking for information about pay for PAs, NPs and MDs who are being recruited by a local medical spa. Some of these are just entering aesthetics and others are old hands.

Here's an example email that's typical from a NP who's being solicited by a day spa who's wanting to offer Botox and fillers:

Hello, I am a Nurse Practitioner from Wyoming and I am going to start doing some medical aesthetics for an established spa that up to this point has offered everything except medical aesthetics. The owner of the spa and I are having trouble figuring out a fair pay for me. The products are being ordered under my license and I will also be doing all the injections. Right now we are just starting out with Botox and Fillers. She pays her staff an hourly wage plus commission, but I have also talked with other spas that pay straight commission. Both of us are new to this and we are having a hard time finding out what other medical spas pay. Any insight on this would be helpful.

Sincerely,

Stephanie

Ok, so here's where we're going to drop some knowledge-bombs on you. (For this post I'm not going to go too deep on whether these types of setups are good ideas on their own.)

First, think about what you're asking and how you're thinking about this new business. You're counting your eggs a little before you've got any eggs.

The fact that you're asking how much you should be paid reveals a number of problems with your understaning of how this is going to work and who's going to be responsible. (This isn't uncommon at all and we're going to disucss business models at lenght in future posts.) Since you're the clinician, you're going to be responsible for everthing to do with this business with the probable exceptions of: #1, paying for stuff and #2 supplying the 'patients'.  So let's look at what you're going to be responsible for:

• Purchasing all the Botox, Restylane and Juvederm under your medical license
• Patient care
• Charting and compliance
• Clinic operations and systems
• Malpractice insurance

Since you're going to be practicing medicine, the fulcrum in this relationship is you as the clinician. It's going to be your reputation, medical licence, malpractice insurance, and your ass on the line.

I'm reminded from a line from the science fiction novel Dune in which goes something like, "He who has the ability to destroy a thing, controls that thing." Meaning, that this is effectively going to be your business, not the spas. (Note, I'm not denying that the spa could probably find someone else to do this same deal, just that it's never going to be the spas business.)

The spa will invariably take the tact that this will be an add-on to their existing business and that the 'patients' are their customers etc. This is both wrong in practice and illegal. This will be the practice of medicine and that's pretty cut and dried. You're still going to regulated, HIPPA compliant, etc. and that's it.

You're also going to need to set this up legally in your state. In most states you can't become an employee of or partner directly with a non-physician. (Not sure about how this applies to NPs so if anyone knows, please leave a comment.)

The patients are going to be yours, the responsiblity will be yours, the insurance will be yours etc., and you can't just be paid for performing medical treatments by a non-physician. All that being said, there are ways that this can be done if you're smart, and the spa owner is reasonable.

1. Set up a legal entity for yourself. (Have a real lawyer do this who has knowledge with clinicians.)
2. Make sure that the spa has a legal entity. (Different lawyer there.)
3. The agreement will be between these two entities. (There are different ways to set this up depending on state. In some cases it might be the NP's entity that is 'renting' space from the spa but there are other options. Read through the forum threads on this site for those.) The agreement should also clearly define scopes and responsibilities and what will happen if the business fails. In cases like this, the spa is often 'paid' for rent and/or 'marketing' expenses, not fee splits or referrals. A technicality maybe but an important one.

People always try to overlook the 'business fails' part of the equation but it's a necessity to outline this up front since this business will end at some point in the future, even if both parties are happy.

Since it's illegal in most states to be a clinician who is an employee of a non-physician, that becomes somewhat problematic since you can't be 'paid' in the normal way. I would also suggest that all monies go though your legal entity before being distributed. In effect, you take all payments, not the spa. Headache yes but medicine in the US is the most highly regulated and litigious market there is. Don't sit around on your thumbs with this.

If you look at what you're going to be required to do, the conversation with the spa should be much clearer and should help the negotiations. If the spa owner refuses to understand how this should be set up, don't do any deal. You can't negotiate in good faith with someone who is willing to put you at risk right at the start.

About your Pay?

The real question is, "how much money are you going to make?". 

Business 'partners' always run into personal conflict when; they don't make any money, or.. they make a lot of money. I would suggest that you make sure that you go into this with your eyes open and the spa owner does the same. If you can't resolve the above issues then the money won't matter.

Comments welcome.

Fairwarning: The LipoTron 3000 FDA UnApproved $85k Massager

According to a new story on Fairwarning.org, RevecoMED claims that their LipoTron device is really being marketed and sold as an $85,000 massager.

I just got off the phone with Myron Levin or Fairwarning.org who contacted me about Advanced Aesthetic Concepts attempts to have comments and reviews about the Lipotron 3000 and their business removed from Medical Spa MD claiming that some negative comments were costing them sales. It was an intersting discussion and Myron filled me in on some of the background that went into the story which has some interesting twists including anonymous calls to the FDA and secretive meetings with criminal investigators.

Read the entire article here: Fat-Melting Device a Weighty Matter for FDA on Fairwarning.org

From the Fairwarning.org article: 

According to interviews and records, Reveco first sought a green light from the FDA in 2007. It chose the FDA’s market clearance procedure, which is less demanding than the formal approval process.

To get a new device cleared this way, the manufacturer must show it is similar in safety and effectiveness to products that are already on the market.

However, Reveco’s bid failed. The company’s initial application “wasn’t in-depth enough,” Rosen said, and the FDA repeatedly sought additional data. Finally, according to Rosen, “We said, ‘You know what, it’s not worth it.”

According to interviews and a document reviewed by FairWarning, the FDA then told Reveco that the device could not be marketed.

LipoTron sales continued, however. Rosen wouldn’t disclose how many of the devices have been sold, but the number is believed to be in the low hundreds.

In 2011, Reveco took another tack with the FDA. It classified the LipoTron as a massager used for relief of minor pain. That would make it, in FDA parlance, a Class 1 device — a category that includes such simple, low-risk items as elastic bandages and examination gloves.

The advantage for Reveco is that massagers can be sold without a green light from the FDA. They automatically are exempt from FDA review and can be put on the market once a notice is filed.

Yet doctors and med spas have been promoting the device on the Internet not for massages but for removing fat.

Rosen said that was not Reveco’s responsibility, stating that the company can’t dictate what doctors do or “police everything out on the Internet.”

Asked who would pay $85,000 for a massager, Rosen replied: “Anybody that wants to buy it.”

Wow. It would take some really big cajones to claim that you're selling an $80k+ device named LipoTron to cosmetic clinics from a company named RevecoMED but you're only marketing it as "a massager for minor pain" and that it's the doctors who are running around uncontrolled promoting it for fat-melting. I'm actually somewhat impressed. I guess the real lesson is that if you can't get your device approved by the FDA as a medical device the first time, reclassify it as a band-aid and declare yourself in full compliance. That seems simple enough. 

Of course it also seems fairly clear from the article that if you have one of these devices and you're promoting it as FDA approved or as a treatment for anything other than a 'massager' you might not be in lock-step with the FDA, a fact that might be exacerbated by the fact that this story has been picked up by major media outlets like MSN.com.

I'm curious; Does anyone have one of these Lipotron devices that they're using as a massager for minor pain? You might want to see if it works on yourself because I'm guessing you have a headache about now.

Update on 2012-07-19 14:46 by Medical Spa MD

More bad news for LipoTron, RevecoMED (the manufacturer of LipoTron), and probably for it's resellers... as well as all the physicians and clinics who are offering LipoTron treatments.

Public Citizen, a consumer watchdog organization with 300k members, has contacted the FDA urging, among other things, that all LipoTron devices should be seized immediately.

Here is what Public Citizen is asking for; from their letter to the FDA:

Immediately seize all LipoTron devices that have been manufactured by RevecoMED and either (a) are being held in inventory by the manufacturer in the U.S. or (b) have been sold and distributed to user facilities in the U.S.

(2) Immediately order RevecoMED and any distributors of the LipoTron device to cease and desist all activities involving the distribution, sale, and promotion of the LipoTron device.

(3) Expeditiously complete its criminal investigation of the distribution, sale, and promotion of the LipoTron device and take appropriate legal action against those individuals, companies, and user facilities that are found by the agency to have engaged in any illegal marketing or promotion of this device

This can not be good news for any of the medical spas and clinics who already have this device.

Read the entire letter to the FDA

View attachments regarding the letter

View the Public Citizen press release

Plastic Surgeon Allegedly Posted Nude Photos of Clients With Names

Six women in St. Louis have filed a lawsuit against a plastic surgeon who allegedly posted nude photos online of their torsos before and after surgery with their names attached to the images.

Is you website putting you at risk?

From an  ABC Morning story

Six women in St. Louis have filed a lawsuit against a plastic surgeon who allegedly posted nude photos online of their torsos before and after surgery with their names attached to the images. The women say this was done without their consent or knowledge.

The before and after photos appeared in Google images if the women's names were searched or if the doctor's name was searched, according Neil Bruntrager, the attorney representing all of the women. He said that if a viewer hovered the curser over the image, the woman's name would appear below the photo.

"Some of these women have public positions—lawyers, teachers, CPAs—all kinds of people who would be searched," Bruntrager said. "They were horrified. Every one of them has said, 'I'm embarrassed. I'm humiliated.'"

Here's what probably happened.

Images on the web use something called an 'Alt Tag' (alt = alternative) that gives information to search engines since they can't tell what images are of. These are often used when building a web site to categorize and 'tag' images so that whoever is building the website can tell what they're looking.

Hover over some of the images in the righ column and you'll see examples of Alt Tags in action.

In this case, the before and after pictures were 'labeled' with the names of the patients.... probably not intentional but it does make the women identifyable and the search engines will pick this up.

Make sure that this is not you.

Can Nurse Practitioners Offer Botox?

Guest Post By Carolyn Buppert, NP, JD

Can Nurse Practitioners offer Botox, Restylane, Juvederm and other cosmetic treatments on their own?

The answer to this question is going to be state-specific. Here are the steps to follow:

1. Read your state's Nurse Practice Act section on scope of practice for nurse practitioners to answer these questions: What acts require physician collaboration or supervision? How is collaboration or supervision defined? (Boards of Nursing in the United States: State-by-State Web Links)
    
2. Go to your state's Board of Medicine Websites and search for any policies on provision of botulinum toxin (Botox®). Note that botulinum toxin is a prescription medication, so a prescription or order for the medication must be written and someone must administer the drug. If your state has policies on botulinum toxin, note the requirements for prescription and administration. Some states consider administration of botulinum toxin a medical act, and some states consider it to be within the scope of a registered nurse. Prescribing is always a medical act.
    
3. If you live in a state that requires no physician collaboration when nurse practitioners prescribe, then as long as the Board of Medicine has no requirements with respect to botulinum toxin, you are free to proceed with your practice idea. If your state requires physician collaboration in order for nurse practitioners to prescribe, then you'll need to line up a collaborator. In most states, the collaborator does not need be on site, but in some states, the collaborator must practice at the site with specified frequency. Follow the rules as they relate to any prescribing.

About: Carolyn Buppert, NP, JD is an attorney practicing in Bethesda, Maryland.

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Defamation via Twitter? Doctor Files A $1 Million Suit In Oregon

By Joy Tu, VP Medical Justice

A Lake Oswego doctor has filed what appears to be the first Twitter-based defamation suit in Oregon.

Dr. Jerry Darm is suing Portland blogger Tiffany Craig for $1 million, alleging she damaged his reputation with “false, defamatory and malicious” statements made online, according to a complaint filed in Multnomah County Circuit Court.

The case stems from commentary Craig posted on Twitter and on her blog, Criminallyvulgar, where the 31-year-old IT worker writes about everything from the recent passing of former governor and senator Mark Hatfield to computer technology, gaming, the treatment of women in comics and her large collection of shoes.

From the news story:

Craig said she was watching the 6 o’clock news one evening in late June when she saw one of Darm’s television commercials. The doctor advertises his business, Aesthetic Medicine, widely and appears regularly on local talk show segments to give advice on dealing with wrinkles and other skin and body issues, hair removal, leg veins and weight loss.

“Through idle curiosity I Googled him just to see what he was all about,” Craig said. “I found pretty much the same information as the television advertising. … It got me thinking about how you would find information about doctors or other medical professionals if you wanted, without the advertising.”

Later, she posted on Twitter that “a little bit of research into @drdarm revealed a pretty nasty complaint filed against him for attempting to trade treatment for sex in 2001.”

In a blog entry that followed, she mentioned the TV commercial, criticizing the ad’s “results may vary” disclaimer:

“Seen that around? Sure you have,” Craig wrote. “If you watch television in Portland Dr. Darm is ubiquitous. Especially on those local channels that show endless reruns of Two and a Half Men. He wants to fix you up good and spend thousands on cosmetic procedures that will get funneled straight into his Lake Oswego home.”

“What he should have added with his Results May Vary disclaimer is Dr. Darm Handed Over His Medical License Due To Disciplinary Action.”

In 2001, the Oregon Board of Medical Examiners reprimanded Darm for “an inappropriate boundary violation” after a patient complained he offered to accept intimate physical contact as payment for after-hours laser treatment of “spider” veins.

Darm also faced discipline in California and in Washington based on the situation in Oregon, where the state medical board required him to complete educational courses about doctor-patient boundaries and risk management and prohibited him from treating adult women without a chaperone. Those restrictions were removed from Darm’s license in 2009.

Darm’s attorney declined to comment on the case but Craig’s attorney, Linda Williams, has filed a special motion to strike Darm’s complaint under Oregon’s anti-SLAPP statutes, which aim to prevent any “strategic lawsuit against public participation” on the grounds of free speech.

This procedural protection allows a defendant to request review of a speech-based lawsuit early in the process so the court can consider whether there is any probability the plaintiff can prove the case, Williams said. “If there is not,” she said, “the court can dismiss the case.”

The protection applies to speech in a public forum on topics of public interest.

Williams contends that Craig’s comments – speech made in the public forum of the Internet – were opinions based on facts in publicly available documents. A hearing on the motion is set for later this month.

Quoted from the Lake Oswego Review story: Defamation in 140 characters or less

Of course this is a non-starter as a complaint and Dr. Jerry Garm is shooting himself in the foot. Instead of quitely asking Craig to remove her tweet (being read by probably 5 or 10 people), Dr. Garm now has made everyone aware of his previous issues and has many more people aware of his "inappropriate boundary violation" issue. Not the kind of thing that gets you ahead and certainly a suit that he can't win.

About: Joy Tu is the Vice President of Strategy & Business Development for Medical Justice, a company that protects physicians from frivolous lawsuits.

Submit a guest post and be heard.

Oregon Chiropractors & Dentists Ban Groupons

The Oregon Board of Dentistry has banned the use of Groupons by the states dentists... and Oregon's chiropractors have followed suit.

Groupon seems to be an either love them or hate them marketing tactic as shown in the very strongly worded comments on our post Are Groupon Deals Killing Your Medical Spa.

Here's the Groupon that started the debate:

And here's the Board of Dentistry's newsflash banning Groupons for Oregon dentists.

!!NEWSFLASH!! Internet Coupon Advertising!!! Please Read!!

The Board has recently become aware of different companies soliciting Oregon licensees to enter into contracts for marketing promotional services between the licensee in the company to promote voucher systems for potential patients. The Board has preliminarily determined that these may violate the unprofessional conduct rule OAR 818-012-0030(3) which prohibits offering rebates, split fees, or commissions for services rendered to a patient to any person other than a partner, employee or employer.

The Board suggests that until this can be fully reviewed by the board, licensees proceed with caution and if they feel necessary seek legal counsel on this matter or contact board office at (917) 673-3200.

Source: Oregon Board Of Dentistry

Of course the Oregon Board of Dentistry is not the only professional organization to come down against Groupon. The Oregon Board of Chiropractic Examiners (OBCE) also decided not to amend its fee splitting rule to exclude such sites as Groupon and Amazon's Living Social.

OBCE decides not to amend fee-splitting rule

Groupon Issue July, 25, 2011

The Oregon Board of Chiropractic Examiners (OBCE) declined to begin rule making to amend the prohibition on fee-splitting on their July 21st meeting at the University of Western States. This decision means Groupon type fee-splitting arrangements are still prohibited for chiropractic physicians.

The OBCE has been reviewing the issues of group bond and similar Internet or other marketing programs for several months. They had potential draft language produced by the administrative rules advisory committee along with the dissent by one of their members outlining the potential problems with the language. (Note: The Summer 2011 Back Talk quoted testimony in support of Groupon.)

Arn Strasser DC, appeared before the OCBE and made a statement in opposition of changing the rule stating, "... the question is what the schemes such as group on, where we would join restaurants, nail parlors and tanning salon, along with medical providers such as dentist and cosmetic surgeons, due to our credibility and how the public perceives us? In my opinion, offering discounted services in the fee splitting away with companies such as group on undermines our credibility..."

OCBE members were concerned that changing the rule with the potential for problems and unintended consequences. They cited the difficulty in trying to craft a workable exemption.

The OCBE also heard that two other such marketing programs have changed their set up for health professionals from a fee splitting arrangement to vastly marketing program ( living social and Fox 12 daily deal). OCBE members wondered why group on could not do the same thing? (The question has been posed the group on but no answer has been received yet. ) they felt it would be better if the advertisers change their program for health professionals, instead of the OCBE amending the fee splitting rule prohibition.

Source: The Oregon Board of Chiropractic Examiners (OCBE)

So is this it? The start of a global Groupon boycott that will eventually spread from Oregon dentists and chiropractors to medical spas and laser clinics in every state and end the daily deals industry?

I doubt it. We expect this is pretty much a medical industry issue--perhaps one that will be limited to Oregon (although we suspect other states will now be looking at it, too). But it does impact Groupon's total market opportunity somewhat.

It does surprise me that it's the dentists and chiropractors that seem to be taking the lead on this and not the physicians.

Thoughtful comments welcome.

Recommended reading: Are Groupon Deals Killing Your Medical Spa

Texas Law & Botox Regulation

Eveidently, and this surprises me, if you're in Texas, anyone can inject Botox, Restylane, orJuvederm if they're 'delegated to' by a clincian.

Is this why the individuals and websites that were leading the do-it-yourself Botox injections hailed from Texas?

• DIY Botox Injections
• Botox Self Injectors & Entitlements
• Fake Botox Or Not, Discount Medspa Is Going To Jail

Hopefully, Texas will get it's act together and finally pass some sensible regulation around Botox and injectables. Undoubtedly there are individuals who have been injecting safely and will be affected by this but it's just not a good idea to have anyone able to inject.

via WFAA.com

Last year, actress Dana Delaney opened up publicly in Prevention magazine about getting a botched Botox job that caused one eye to droop. She said the wrinkle fighting toxin was improperly injected into a nerve.

Botox and other injectable treatments are controlled substances. Only someone with a medical license can order them. That has many surprised to hear there are no rules about who can inject them. In medical spas across Texas, just about anyone can wield the needle.

“As long as I’m the one purchasing it, right now I can delegate to whoever I want to,” said Dr. Lori Stetler, a Dallas dermatologist.

Stetler applauds efforts to make the lucrative anti-aging industry safer for patients.

Friday, the Texas Medical Board will consider changing who can be delegated to perform “cosmetic procedures” that use “prescription medications.” That includes Botox and a host of other wrinkle fillers, including Restylane and Perlane.

Among the considerations is limiting who can give injections to doctors, nurses or physician assistants. Training is also an issue. Currently, no experience is required.

“There’s no set or approved curriculum or licensure or anything for that,” said Stetler, who says patients can unknowingly find themselves in unqualified and inexperienced hands.

She hopes potential state-wide changes will improve the safety profile of all anti-aging clinics.

“I like the idea that they are looking into and hopefully will get rid of some of those people who are harming the public,” she said.

Friday will be the medical board’s first discussion. Action is unlikely. If the board eventually changes the regulations, anyone who breaks the rules could face punishment or potentially lose their medical license.

"Action is unlikely?" What is going on in Texas? Why would the Texas Medical Board be unlikely to take action and follow almost every other state on this issue? Who are the doctors arguing against this?

By this reasoning it should be possible for Texas physicians to run 'Do It Yourself Botox Course' and teach patients how to inject themselves...

Lifestyle Lift & Posting False Reviews Online?

Was Lifestyle Lift "Astroturfing" (posing as clients and posting false reviews)?

I was looking around at a number of allegations of medical businesses that have been accused recently of using their employees to post fake comments on physician rating sites and was pointed to this Wikipedia entry about Lifestyle Lift and allegations by the New York State Attorney General's office that Lifestyle Lift had been 'Astroturfing' back in 2009.

(Via Wikipedia)

 Lifestyle Lift has faced numerous complaints about the accuracy of their advertising. The company and its procedures have been featured on ABC, NBC, CBS and Fox News, and in newspapers and magazines across America, some of which were critical of their practices. In 2006 Lifestyle Lift voluntarily participated in a review of its advertising materials with the Better Business Bureaus's National Advertising Division. This review produced a 10-page document which made several suggestions for improvement, all of which were adopted by Lifestyle Lift. One was that pictures taken of patients tended to amplify problem spots, and benefits post-surgery, by using different photographic techniques. The BBB summarized by stating that "disclaimers must not contradict the main message conveyed by an advertisement", and "'before' and 'after' photographs should be taken in a uniform manner". 

In 2008, the company brought suit in United States federal court against the website RealSelf.com, which solicits anonymous consumer reviews of cosmetic procedures. Lifestyle Lift claimed that RealSelf's practice of allowing competing cosmetic surgeons to advertise as offering a "Lifestyle Lift" was a trademark violation. The courts deemed the website's activities to be protected First Amendment speech, and the lawsuit was later settled. 

In July 2009, the New York State Attorney General's office charged Lifestyle Lift with "astroturfing," or posting fake consumer reviews on the Internet, and reached a settlement in which the company paid $300,000 in penalties and costs. According to the AG's office, Lifestyle Lift employees were instructed to create accounts on Internet message boards and pose as satisfied customers, and created web sites such as "MyFaceliftStory.com", designed to disseminate positive reviews appearing as if they were created by independent and satisfied customers. They also attacked genuine customers who posted critical messages about Lifestyle Lift on other sites, and took steps to get those posts removed. The AG's investigation discovered emails specifically instructing employees to engage to post on the web; one such message directed an employee to "devote the day to doing more postings on the Web as a satisfied client"

(Note: I've never been involved with Lifestyle Lifts or Swift Lift in any way but we did perform a different endoscopic suture plication facelift called Point Lift that we developed independently. Point Lift was eventually dropped after we found the results to be lackluster and the incidence of unhappy patients and complications to be higher than acceptable.)

In my experience, these kinds of lawsuits happen from time to time and it's more an inditement of some shoddy business practices than of the medical treatment.

I'm aware that there are a number of physicians who are performing Lifestyle Lifts now and I'm curious to find out what their opinion of the treatment and patient satisfaction in general.

This kind of stuff can quickly get out of control, even on an individual clinic level. The whole 'fake physician review' deal is one of the reasons that we're promoting Frontdesk's verified physician review and customer satisfaction marketing system that actually takes some steps to make sure that your happy clients have a voice that gives a clear representation of what your patients actually think.

Link: Frontdesk's Customer Satisfaction Review Marketing System

Cyber Discrimination: A New Frontier of Liability for Healthcare Providers

By Dr. Jeffrey Segal, MD, JD of Medical Justice

Pause for a second, stop reading this article and close your eyes. Imagine living life as one of the 1.3 million blind people in the United States. Think about how you would access information exchanged over the Internet. For 60-year old New York resident Mindy Jacobsen, this is her reality. She has been blind since birth.

Thanks to the American for Disabilities Act (“ADA”) it is easier for Mindy to navigate around New York City. She can walk sidewalk to sidewalk, hop on a train and live a fully functional life, except when it comes to navigating through the internet.

“You go to a hospital’s website and want to get the pre-op information there, but it isn’t available and if it is, it is in a format we can’t read. Then we have to ask people to read it to us and it becomes such a big deal,” Jacobsen said.

Mindy uses a screen reader to read web pages to herself. It is a helpful tool that allows her to navigate the World Wide Web.

"We have computers that take advantage of the speech kit that is built into all computers. Instead of using that speech kit to show a movie, which it certainly can do, we have a program that uses that speech kit to read the screen. So every time the screen refreshes, the software sends the information to the speech kit and it is read aloud to us,“ Jacobsen said.

Section 508, added to the Rehabilitation Act in 1986 and amended in 1992 and 1998, requires Federal agencies to make their websites accessible to people with disabilities. Outside of Federal agency websites, the United States government policy is to encourage self-regulation of the Internet wherever possible. Only if self-regulation is insufficient does government involvement become necessary.

Self-regulation hasn’t fared well for a handful of public companies nationwide. The most famous and commonly cited case was litigated several years ago, when the National Federation of the Blind filed a suit against the retail giant, Target.  The plaintiffs alleged Target's website was not compliant within the outlines of the ADA.   National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006) asserted the requirements that Title III of the ADA imposes on places of public accommodation also applies to e-commerce websites.  The plaintiffs were blind individuals who claimed the Target website discriminated against them since the website did not work well with screen reading software.  The case was the first lawsuit applying the ADA to a website that survived a motion to dismiss.  The Target case was recently settled out of court for reportedly six million dollars. Quite a sum. 

Target is not the only organization whose website triggered a claim under the ADA. Southwest Airlines has been named as a defendant, as well as Twentieth Century Fox and Schering-Plough. It seems reasonable to anticipate a wave of litigation against healthcare providers that, in whole or in part, provide services to disabled individuals.

Title III of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 42 U.S.C. § 12182(a).  Is a website a public place?  There seems to be so strong arguments that a judge could say, "Yes." 

"I hope that legislation will come about requiring anyone on the internet to make his or her site accessible.  I am dreaming but it is a hope,” Jacobsen said.

Mindy’s hopes are not far off. In July of 2010 the Department of Justice (DOJ) published documents saying they are considering updating the ADA regulations so that it would explicitly state that both state and local government and places of public accommodations must make websites usable to people with disabilities. Public comments were accepted by the DOJ for an advanced notice through January, 2011. Many take this as a clear sign that rules applying ADA regulations to commercial websites are coming in the near future.

To help physicians get a jump start before legislation may take effect, there are a handful of easy changes to their websites to make them more accessible. First, physicians who already have a website should get it tested for accessibility.

Accessibility Partners is a company that helps organizations implement electronic and information technology accessibility solutions for people with disabilities. Their company hires people with and without disabilities to scan websites to make sure there are no kinks during operation.

“If somebody doesn’t have use of their hands and arms and they have some type of mobile disability, they might use some type of speech recognition to navigate the web. If they are trying to research a medical practice in their city and they Google it and doctors office comes up and they get to the website and the website is not accessible for them; it might be like getting to the door and having the door locked and having the doorbell be out of reach. So it kind of cuts off, unintentionally a whole population of potential clients,” Dana Marlowe with Accessibility Partners said.

A screen reader can read almost anything - eliminating barriers for the blind like Mindy; until it comes across a graphic with no behind the scenes description attached to it for the screen reader to read.

“When my screen reader encounters graphics, it can’t read them. So it just quiets down and doesn’t do anything,” Jacobsen said.

This encounter has been described more graphically by Premium Websites web designer Dotty Scott.

“It is like somebody reading off a Uniform Resource Locator(URL) that has a bunch of question marks and numbers, stuff that is not relevant to what they are looking for. Unfortunately, most websites are built that way, so the person is actually forced to sit and listen to all of that before they actually get to the information they are looking to find,” Scott said.

Scott encourages all web designers to experience a screen reader. Then it becomes obvious what they need to do.

“It was shocking and eye opening. It is amazing to me, the patience blind people have to find anything on the internet. It really is an eye opener,” Scott said.

Here are a few changes physicians can make to their website to make them more user friendly immediately.

• Provide text alternatives ("alt") for images and other non-text content.
• Make it easier for users to read text by using high contrast colors between the text and        background, and making text resizable.
• Provide captions and other alternatives for multimedia.
• Use headings to group information and mark up the heading in the code.
• Make all functionality available from a keyboard, since some people cannot use a mouse.

W3C is the international organization that defines the standards for the web. Within the W3C is the Web Accessibility Initiative (WAI). The WAI's core mission is to make sure the web is accessible to those with disabilities.

 WAI has developed web accessibility standards that organizations can follow, although WAI itself is not an enforcement body. The DOJ is considering using those standards in revising regulations for the Americans with Disabilities Act. Shawn Henry has been working to help organizations understand WAI's standards with the hope that many will make the changes on their own.

"Organizations would be wise to think about accessibility when they are updating their website, instead of waiting until they get a complaint," Henry said.

About: Dr. Jeffrey Segal, MD, JD, is Chief Executive Officer and Founder of Medical Justice and is also a board-certified neurosurgeon.

Michael J. Sacopulos is a Partner with Sacopulos, Johnson & Sacopulos, in Terre Haute, Indiana. His core expertise is in medical malpractice defense and third party payment disputes. Sacopulos may be reached at mike_sacopulos@sacopulos.com

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Understanding The HITECH Act: HIPAA On Steroids

By Jeffrey Segal MD JD and Michael J. Sacopulos JD

Understanding the law before you send your patients any e-mail.

Snail mail is becoming less popular as the calendar pages turn. E-mail and social media networks have changed how we communicate. Before clicking the send button in an e-mail template, healthcare professionals should better understand that HIPAA violations have also entered a new era. More cases are prosecuted with assessment of both statutory civil fines and criminal penalties.

A little background: Even though HIPAA passed in 1996, little prosecution followed when patient privacy was violated. Since the law took effect in 2003, nearly 45,000 complaints were filed with the Health and Human Services (HHS) Office for Civil Rights. Of these complaints, only 775 cases were referred to the Department of Justice or the Centers for Medicare and Medicaid Services for investigation. None resulted in direct civil monetary penalties.

Then, in 2009 the HITECH Act (“HIPAA on steroids”) was enacted. This act intended to increase HIPAA confidentiality protections of Electronic Protected Heath Information(ePHI), instill tough civil and criminal penalties for violations, mandate notification of breaches of HIPAA protected heath information, and extend the definition of covered entities to include business associates. A tall order indeed.

For example under the tougher HITECH Act, in April 2010 a former employee of a hospital was sentenced to four months in prison for accessing the medical records of his coworkers and various celebrities. He had no “valid” reason for accessing these records.

According to the Health and Human Services (HHS), penalties have increased. Prior to the HITECH Act, the HHS Secretary could not impose a penalty of more than $100 for each violation or $25,000 for all identical violations of the same provision. Section 13410(d) of the HITECH Act strengthened the civil money penalty scheme by establishing tiered ranges of increasing penalty amounts, with a maximum penalty of $1.5 million for all violations of an identical provision.

Just how "high tech" are physicians when it comes to communicating with patients?

A survey by the health information firm Manhattan Research in 2009 found that 42 percent of physicians had some online communication with patients.

The American Academy of Family Physicians reported in a 2009 survey that just 6 percent of responding members had performed a Web-based consultation - that number was more than double the 2.6 percent who had done so in 2008.

But is all of this electronic communication legal?

The HITECH Act requires that all communications involving ePHI be encrypted.  HHS recently adopted National Institute of Standards and Technology guidelines for encryption.  This means that if a physician wants to consult, refer, or prescribe for a patient by e-mail, the e-mail had better be encrypted.  Of course most patients do not have software to decrypt.  So what alternatives do healthcare providers have? And, more importantly, how can this be made easy and pragmatic. Email was designed to simplify, not complicate.

Healthcare providers may seek their patient's consent to communicating via unencrypted e-mail.  While HHS does not provide a standard form for securing patient consent, basic "informed consent" strategies should apply.  First, get the patient's consent in writing.  The patient should not be given just a binary choice – but a menu of choices.  For example, a patient may wish to electronically receive information on appointment dates but not test results.  The consent document – as is standard with most routine HIPAA forms -should also note that the patient may withdraw his or her consent at a later time. This can be part of an expanded HIPAA form the patient signs when first seeing you in the office.

Here are some more recommendations when communicating with patients electronically:

1) A physician may be held responsible for a delay when responding to a patient's e-mail. Solution: A physician that wishes to accept e-mail from patients should use an auto response feature that informs the patient that a) the physician typically responds to e-mail within XXX number of hours/days; b) if the patient requires immediate attention, the patient should telephone the physician's office or contact an emergency healthcare provider.  

2) If a patient initiates an e-mail with a physician, Rachel Seeger of HHS Office for Civil Rights says that it is assumed that the patient consents to unencrypted communication.  "If this situation occurs, the healthcare provider can assume (unless the patient has explicitly stated otherwise) that e-mail communications are acceptable to the individual”.

3) If a physician does end up sending a patient an e-mail, double check the recipients’ e-mail address before clicking the send button. This is to prevent the e-mail from being sent to the wrong person, therefore sharing private information to an unintended party. Good advice also in the non-healthcare world.

4) Add any e-mail a patient sends (and any response) to the patient's chart.

5) In the HITECH Act code 170.210 section B states that the date, time, patient identification and user identification must be recorded when electronic health information is created, modified, deleted, or printed; and an indication of which actions occurred must also be recorded. This means if you send an email to a patient with protected health information – and delete it – you will need a record of what was deleted and when. This is not dissimilar to crossing out a line in a paper medical record- updating the record – with a date of the update.

6) Since communicating with patients via e-mail is becoming stricter, more physician offices and hospitals are using portals as a means of communication. This allows the patient to sign in with a secure username and password to view their records and communicate with their physicians. The security rule allows for Electronic Protected Heath Information (e-PHI) to be sent over an electronics open network, as long as it is adequately protected.  Of course, this is more complicated than using Outlook or gmail.

The HITECH Act has ushered in a new era of technology requirements and standards that must be met by physicians.  Given HHS's recent enforcement efforts, physicians should use caution when electronically communicating with patients.  By working within the boundaries of the six points above, physicians should comply with the HITECH Act. 

Jeffrey Segal MD JD and Michael J. Sacopulos JD are with Medical Justice, a Medical Spa MD Select Partner that protects physicians from frivilous lawsuits.

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Treating Non-English Speaking Medical Spa Patients

By Jeffrey Segal MD JD and Mike Sacopulos, JD

According to the 2000 U.S. Census 18% of people living in the U.S. spoke a language other than English in their home.

Jump ahead 11 years and that number continues to grow. We are asked to press one for English and have the option of reading everything from a manual to a menu in Spanish. 

Of the more than 18% who don’t speak English as their first language, most, if not all, will see a physician here in the U.S. at some point. The physician they choose may not speak their native tongue.

 Title VI of the Civil Rights Act prohibits discrimination based on race, color, or national origin. The Act goes even further in protecting against discrimination of those with limited English proficiency -also known as “LEP”.

 Health care providers receiving Federal financial funds are mandated by law to take adequate steps ensuring those who can’t speak English are provided with the necessary tools to clearly communicate with their physician. Physicians who are unsure whether they receive financial assistance from the government should think twice. Physicians who receive reimbursement from Medicaid or Medicare are recipients of Federal financial assistance, and, thus must comply with Title VI requirements for language assistance.

The challenge goes beyond compliance with government rules.  Failure to comply can also result in civil liability claims.  The type of language assistance that must be provided to LEP patients depends on a variety of factors including:

•        The size of the medical practice
•        The size of the LEP population
•        The nature of the service
•        The total resources available to the medical practice
•        The frequency with which particular languages are encountered 

If the Office Civil Rights (“OCR”) gets a complaint about a noncompliant physician’s office, they will inform the practice in writing of its findings and identify the steps that must be taken to become compliant. If the practice chooses to ignore the OCR’s helpful hints,  the OCR is empowered to terminate any Federal funding (after an administrative hearing).

A practice’s responsibility

• Contact the Department of Justice (“DOJ”) to get the information they provide to health care providers on compliance with the American with Disabilities Act

• Decide what foreign language assistance is most needed in the area

• Find out what LEP services are already available in your area examples: hospital, community center, schools and the library.

• Develop a written policy for your practice to ensure effective communication with the LEP population. The policy must be in compliance with federal laws and regulations. The plan should also include a list of qualified individuals who have the medical terminology to satisfy your requirements. A physician’s position in a lawsuit will be enhanced if they have relied on the interpretation of a qualified individual.

• Educate the staff on LEP requirements and practice policies.

• Schedule extra time with an LEP patient to ensure translation was as complete and accurate as possible

How should physician offices handle telephone calls to and from LEP patients? 

•  Determine how your staff is handling calls from LEP patients and develop procedures to help them respond to patient communication needs.
•  If possible, telephone calls from LEP patients should be answered by bilingual office staff or onsite interpreters. 
•  If possible alternatives include enabling staff members to activate three-way calling with a telephonic interpreter or to transfer calls to someone at the office who speaks the relevant language. 
• Answering machine messages should be provided in more than one language (with prompts) if there are a significant number of LEP patients in the practice who speak one or more non-English languages.
•  In the case of a high volume of diverse LEP patients, telephones can be programmed to rollover directly to a phone line with telephonic interpretation services. 
•  If using an answering service, consider contracting with one whose language capacity mirrors that of your practice.

While coming into compliance may seem like a daunting task, it pales in comparison to what will happen if your case is tried in a court of law.  Language does not seem to be a barrier when non-English speaking individuals hires an attorney – to go after you.  A thoughtful compliance plan can save much grief for both physician and patient.

About: Jeffrey Segal, MD, JD, is founder and CEO of Medical Justice Services, A Medical Spa MD Select Partner.  Mike Sacopulos, JD, is general counsel for the organization.

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As A Physician, You Need to Understand Your Online Reputation

By Jeffrey Segal, MD, JD & Michael J. Sacopulos, JD

The observation that social media is experiencing explosive growth is hardly novel. Moreover, social media is significantly influencing the medical profession. 

Free Webinar: "How To Control & OWN Your Professional Reputation Online!"

CNN Money.com reported that Facebook passed the milestone of half a billion signed on users half a year into 2010.  The professional and legal ramifications from the rapid growth of social media touch almost every aspect of physicians practicing today.  One of the most challenging of these ramifications is a physician’s online reputation.

Pew Internet and American Life Project recently released numbers that document just how important the source of information regarding medicine and physicians the internet has become.  Sixty-one percent (61%) of American adults look on-line for health information. Forty-nine percent (49%) of Internet users report researching a specific disease or medical problem on the Internet.  Forty-seven percent (47%) report seeking information about their physician or other healthcare professionals from on-line sources. 

Finally, five percent (5%) of “E-Patients” have posted a review online of a doctor. It is these very reviews from a small subset which form the basis of a physician’s reputation on-line.

Most physicians equate a tainted online reputation with a direct loss of business.  The analysis is simple; the worse the online reputation, the fewer the patients.  There are certainly many examples to support this reasoning. 

Dr. Linda Morrison, a physician practicing in Indiana, experienced first hand the harm that arises from an online reputational attack.  In July of 2000, Dr. Morrison noticed that an anonymous individual was posting defamatory statements about her via the internet.  Dr. Morrison received e-mails from this individual under a pseudonym “Surfycity45” that, among other things, made threats against her medical license.  The attacks continued into the fall of 2000.  Dr. Morrison ultimately learned that “Surfycity45” had been circulating defamatory comments about her while simultaneously encouraging others to do the same.  “Surfycity45” worked hard to organize a cyber mob with Dr. Morrison as its target.  

Dr. Morrison, via counsel, attempted to enjoin Defendant American Online, Inc. from the continued posting of the defamatory statements about her by the anonymous subscriber.  For a variety of legal reasons, the United States Northern District Court of Indiana ruled against the injunction.  Although Dr. Morrison alleged that “Surfycity45” statements were false, defamatory, and had resulted in damage to her professional reputation as a physician, she was unable to have these remarks removed from the Internet in a timely fashion.The damage was done.  

The implications of a physician's online reputation now extends beyond patients.  At least twenty seven (27) states have a recognized cause of action for negligently credentialing a physician.  Given this liability, credentialing committees will likely perform detailed background checks using all available search tools, including social network sites.

It is not just patients and credentialing committees which are scrutinizing physicians’ online reputations.  In any  medical malpractice action, physicians should assume that the plaintiff’s attorney will checking the doctor’s online reputation.  Geoffrey Vance, a thirty eight (38) year old partner at McDermott, Will and Emry, makes use of social networking sites to gather facts about the opposing side for trials.  “I make it a practice to use as many sources as I can to come up with and to find information about the other side” Vance said.  “We used to run Lexus Nexus; we still do that.  We always look at cases, and now we use the internet – Google, and social networking sites.”

Mr. Vance is not alone.  Paul Kiesel, a lawyer in Los Angeles County, admits to using social media not only to investigate the opposing side, but also to help select jurors.  “Last month I had fifty (50) jurors, and as the Court Clerk read out the names, I had two (2) people in the courtroom and the third person back at the office, with all three (3) of them doing research.”

Lawyers are not the only actors in a courtroom who are using social media at trial.  Courts across the country are grappling with the serious problem of “Internet-tainted” jurors.  In case after case, judges and lawyers have discovered that jurors are doing independent research via cell phone during trials.  Last year in Arkansas, a state court judge allowed a 12.6 million dollar verdict to stand even though a juror sent eight (8) messages via Twitter from his cell phone.

Physicians’ online reputations are being examined with increasing frequency at crucial moments in their professional career.  It is no longer  prudent for a physician to fail to monitor his or her online reputation.  “Physicians should carefully monitor their online reputation.  I have seen examples of ex-spouses, past employees, and competitors all posing as disgruntled patients in an online effort to damage a physician’s reputation.  This is a real threat that is not going away,” says Rivera.

Whether physicians work through organizations such as Medical Justice or Search Engine Optimization companies or go it alone, they need to guard their online reputations.  In the words of Benjamin Franklin “It takes many good deeds to build a good reputation, and only one bad one to lose it.”

About: Jeffrey Segal, MD, JD, a neurosurgeon, is the founder and CEO of Medical Justice Services. 

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