Today’s story had a chilling impact on the MedSpa industry overnight when MedSpa owners and doctors were all being arrested for violation of state medical laws in Texas. In this episode Michael and Brad are joined by partner, Renee Coover as they discuss the overall impact the Texas Botox arrests had on the MedSpa industry.
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 three, two, one.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto I’m your host Brad Adatto with my cohost Michael Byrd.
Michael: Thanks Brad. As a business and healthcare law firm, we’re often immersed in the heavy details of a particular issue or project. It’s beneficial, if not mandatory, to every so often take a step back and evaluate the bigger picture. This season’s theme is Zoom Out. We’ve all been immersed in the life of a global pandemic, [00:01:00] we are going to take a step back and look at how the issue we discussed will be impacted in our new normal. Today’s story had a chilling impact on the med spa industry overnight when med spa owners and doctors were all being arrested for violation of [00:01:00] state medical laws in Texas.
Brad: Yeah I remember this quite well, Michael. Our phones blew up overnight when it happened. The local news, this happened in Houston, they were covering it and filming these individuals in handcuffs being removed from these medical facilities.
Michael: Yeah. I’m curious if you had PTSD because Brad, I heard a rumor that you know what it’s like to be arrested. Is this true?
Brad: So we’re gone there, huh?
Michael: Well you tell me. I mean I would like to hear your stories of your fun times with law enforcement.
Brad: Well, first off, it’s not as bad as it sounds but it was not as fun as when it was happening to me. I had just turned 17 years old that summer, living in New Orleans and the Republican national convention was being held in New Orleans at the New Orleans super dome.
Michael: Okay now I know why you’re such a hardened lawyer and [00:02:00] people always refer to you by a street name when we go to the local restaurants. I want to hear more.
Brad: All right. So I was a volunteer there and as a volunteer, I got a parking card so I could park in the Superdome. One night a few of us volunteers around my age decided it’d be fun to go after work to the French quarter, which is not far from the Superdome, where we knew there were some establishments that some of the youth could drink at.
Michael: Hmm, very curious. Brad, was the drinking age, 21 in New Orleans at this time?
Brad: Uh, yes and no. Yes, it was the law. There were some exceptions, but no, the law really wasn’t enforced in most places.
Michael: Okay. Well this does not surprise me.
Brad: After celebrating in the quarter, my colleagues and I were walking back to the Superdome. It was about 9:45 at night and the reason I know this is I had to be home by 10:00 for my curfew. And unfortunately for us and [00:03:00] unbeknownst to us, the area that we had parked our cars in the Superdome was now under lockdown because the Vice President United States who was George Senior Bush was about to come in town and visit the Superdome the next morning. And so as we approached our cars to head home, the outer security of the secret service stopped us at our cars and demanded to know why we’re in the secured zone. We were all volunteers, although we had IDs, we didn’t have anything that really said that we should be at the convention center besides our little parking pass. The secret service had us leave our cars and go into basically a holding area and they separated us in a couple of groups and they started asking us questions over and over again, what we were doing there. And we kept trying to explain over and over that we’re heading home. That didn’t really seem to satisfy them since we didn’t exist on any of their worksheets. Multiple times at this point I had asked, can they call my parents at least let them know that I was being detained. They said, no. [00:04:00] Around 11:45, they finally got a hold of the head of all volunteers. This gentlemen, who was probably my age now had met me once. I don’t think he recognized my name, but he knew a couple of other volunteers and he said, yeah, I know who they are, let them go on. The secret service could not have been ruder and actually made a couple of the girls with us cry and basically sent us home.
Michael: Well, Brad, we talk a lot on our episodes about counting the red flags that we hear and so when I hear jail and curfew and Vice President of the United States, I think red flags. I also, when I hear you talk about Vice President George Bush Senior, I think, wow, you are really old.
Brad: Fair enough.
Michael: So was the prison food bad when you were locked up?
Brad: Okay there was no food when I was there. Actually the worst part of the entire story is when I got home, hours late from curfew. And remember this, as you said I’m [00:05:00] old, so cell phones didn’t exist back then. So by the time I got home back from the Superdome my parents are crazy mad at me. As I was walking to the front door, they basically told me to leave the keys because I was grounded basically for life. And then I actually sat in the breakfast room table and spent the next 30 minutes, explaining to them exactly what had happened to me and being detained by the secret service.
Michael: Wow. So much has been explained. I’m so glad to know that story, even though I’ve heard it before, I can’t hear it enough. But let’s jump into today’s story.
Brad: Well, this story started back in November, 2018. So not as old as my last story. And this starts off where you had this LVN, who’s having her typical day at her med spa. A patient came in and expressed the need to have some cosmetic service and was interested in getting Botox. The patient got a video consultation from a medical doctor who was called in via telephone. [00:06:00]
Michael: Oh, Brad. I think we just hit our first two vocabulary words of the day. I know we talked about telemedicine in the last episode, How Will the Medical Boards Answer the Telemedicine Call? But for those not familiar with the word telemedicine, it means the practice of medicine using telecommunication or information technology. Now each state may have a slightly different definition including calling it telehealth, but it ultimately is nearly the same thing. And the other word that you used was LVN. For those not familiar with LVN, this means licensed vocational nurse or in some states are called LPN, licensed practical nurse. And it’s an entry level healthcare provider who is responsible for rendering basic nursing care. And in fact, in some states, LVNs have their own board separate and apart from the nursing board, in some states they’re regulated by the same board as other nurses. An LVN [00:07:00] practice is going to be under the direction of a physician or sometimes a registered nurse. As a result of this, they don’t have much independence and certainly don’t have as much as a registered nurse or some other higher, more formally educated providers.
Brad: Good catch, Michael. Two good vocabulary words that they need to follow up on so I’m glad you got that in there. So this medical doctor came in again via telemedicine examination, determined whether or not this patient was a good candidate for the services of which we’re talking about Botox. The LVN then gave out the potential patient filler treatment recommendations such as Botox, and then ended up signing her name as practitioner on the actual medical record. The LVN then started discussing these next steps with the patients, including where she was going to inject the Botox and how it would be performed.
Michael: Brad I thought you [00:08:00] noted an arrest happened. What did the LVN do wrong? And when was the LVN arrested?
Brad: Well, this potential patient was actually an undercover Houston police officer. He arrested the LVN on the spot onto the claim that she was practicing medicine without a license, prescribing medication as a non-physician, as an LVN which is a felony in Texas as in most states. Later on when we actually got to hold the police report, it later noted the LVN also as an owner of the med spa and as I said, not a licensed physician, not a licensed physician assistant or an advanced practice registered nurse, and therefore was not authorized to diagnose or recommend treatment of nonsurgical medical procedures, such as Botox injections.
Michael: Okay. Well, what happened to the MD who did this video consultation?
Brad: Well, about a week later after the LVN was arrested for this alleged, unlicensed practice of medicine, the med spa [00:09:00] supervising medical director turned herself in after being charged for aiding in this illegal procedure. These two arrests really are not where the first of four in the Houston area in a very short window. The police ended up having two other stings, arresting a medical assistant for injecting Botox at his facility with no video consultation from an MD, a cosmetologist prescribing weight loss pills with no video consultation from an MD. And you know, Michael being led away in handcuffs and having the local news which were all called in, by the way, for each one of these arrests with your face plastered all over it can be a very sobering feeling that you just might not be compliant.
Michael: It’s crazy, four arrests in one month. I want to pause to acknowledge that we have been doing this for a long time and not much surprises us. We get some pretty crazy phone calls. And this first arrest stopped us in our tracks [00:10:00] and all based on undercover stings. What could they have done to be compliant? Well, let’s go to commercial and when we get back, we’ll bring in one of our partners to help us break down this insane story.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host Brad Adatto with my co-host Michael Byrd. Now this season’s theme is zoom out as part of the zoom out theme we’ve talked about the bigger picture, but before we get into [00:11:00] analyzing today’s story about being arrested, Michael let’s bring in one of our Chicago partners to break this story down.
Michael: Yes, joining us again for another episode is Renee Coover. Renee graduated from the University of Miami with a degree in psychology and vocal performance. Yes, she’s an opera singer. She then graduated from DePaul University College of law. She’s a partner in the ByrdAdatto Chicago office. Renee has been an Illinois rising star for the last several years. She has a deep background in employment law practice. She practiced this pretty heavily in her early years and really leads our employment practices here at ByrdAdatto. Renee gave a Ted talk that I think now is at 66,000 views Called Taking Back Your Pregnancy Rights. Renee is married to Phil [00:12:00] who also is a successful attorney and has his own podcast. And she has Liam and Mabel to make sure that they keep her sane. Renee, welcome.
Renee: Thank you, Michael. Thank you, Brad. Thanks for having me. Phil is going to be so enthused that he got his podcast mentioned on my guest spot. So thank you for the introduction.
Michael: What’s the name of Phil’s podcast? We can do better than that.
Renee: Well, we’re really going to plug it today. It’s Real Estate For Breakfast. And as he was recently told by another guest, why not real estate for lunch and dinner too, but those may be the sequels, but yeah, it’s Real Estate For Breakfast.
Brad: Billion dollar concept. All right, going back to our story when this arrest first happened, we can start with you Renee first, what was your initial reaction?
Renee: I was thinking about this and I think I was in a bit of shock, to be honest. I think this [00:13:00] really shook the industry. And I was going back to my memory to think a few years ago, what was our reaction when we got news of this at the firm and we were all scrambling to get the most up-to-date information, just to figure out exactly what had gone down. I had always thought and probably told others, well, there’s really no med spa police so they’re not going to come knocking down your door. And here we had two people being led off in handcuffs. So it definitely was a sobering moment and it was something that we were all taking stock of and very quickly.
Brad: Michael what about you?
Michael: Yeah, it turned everything that I thought I knew upside down. I mean, we’ve been in healthcare for a long time and Brad in speeches, we’ll talk about working in shades of gray and that when people get into the shade of orange, like orange jumpsuit, we [00:14:00] stand up and say no. And then for most of our career, when it’s come to elective medicine, including medical spas, we’re not too worried about the orange jumpsuit. There’s not a lot of these federal laws that come into play too often. All of a sudden, we have people who, thankfully were not our clients, but we’re being led away in orange jumpsuits and I’m thinking, okay, well, how does this change the conversation when we’re trying to advise people how to be compliant and the stakes for not being compliant?
Brad: Yeah I totally agree with both of yall. It was shocking, we would always talk about the worst case scenario about a physician getting in trouble with the medical board or a nurse getting charged in trouble with the nursing board. Anytime we ever saw an arrest of a person for the unlawful practice of medicine in Texas, it’s because they killed or maimed the person. So as we dive deeper, I mean, this was an extremely aggressive response for something that was, you know, [00:15:00] obviously a patient was not killed or maimed in this situation. And so normally these are the kinds of things we see medical boards handle. So this season’s theme is zoom out and as part of our zoom out theme, let’s talk about the bigger picture of the overall impact of the stress had on the med spa industry and what’s changed because of it. So, Renee, I’d like to start with you again first.
Renee: I remember right after the first arrest happened when the LVN was led out in handcuffs. I think all of a sudden there was an immediate uptick in the number of people calling us in really just a tizzy as to whether or not they were compliant. And I think it started an industry-wide discussion as to compliance, what is compliant? What is not? And looking at it from different angles of what it means to be compliant. I think that has changed the industry going forward because now [00:16:00] there is a focus on compliance and I always laugh, but the whole AmSpa, hashtag compliance is cool. I think that really has become a motivation for a lot of providers, they want to be compliant. They want to know what is the standard, what can they do to make sure that they’re following the rules and regulations for their state, and they’re looking to others in the industry to help them.
Brad: Yeah. Michael, what about you?
Michael: Whenever there is an event like this that draws attention to the whole industry, there’s one of two ways it tends to go. Someone’s going to pay attention to it. Is it going to be the industry, our client base? And are they going to take it seriously kind of in line with Renee’s point or are the legislators going to do something about it because they see a problem and this had the potential to be one of those things that [00:17:00] caused some bad laws to get passed because it was so public. And I think maybe what was the saving grace is that there wasn’t anyone that actually got hurt with any of these arrests. We did see some pretty aggressive legislation get put forth in the legislature in the year that followed this, but that did not get passed. What I would say is that I agree with Renee, that there seemed to be an embrace by the industry as a whole to take compliance more seriously. And the level of sophistication and my phone calls today, if we do 15 to 20 phone calls a week of new people that we are learning about in the industry most are more sophisticated today than they were pre 2018. And so [00:18:00] that’s a really good sign. And then, you know what I couldn’t help but think about Brad, when you talked about the zoom out and thinking about the fact that we’re coming out of this global pandemic is that actually telemedicine has become more and more accepted now and I wonder if some of those elements of that arrest would have been as problematic now as they were a few years ago, because telemedicine was much more controversial.
Brad: All fair points so let’s get back to today’s story. So as a reminder, we have this LVN, a medical assistant and a cosmetologist all arrested for practicing medicine without a license. Renee, I think our audiences can struggle here. What, what went wrong?
Renee: Well, that’s a great question, Brad and I think there’s a lot of different angles. You can look at it clearly when we review the transcript of the [00:19:00] probable cause from the arresting officer, he or she had her own take exactly what went wrong during that consultation and I think there’s a lot of different ways to look at this, but there was a good faith exam that was done by the medical director at the med spa. And in some ways, there were maybe parts of that particular exam or consult that could have been done better. But I think you can make an argument that there’s a certain art to these sorts of cosmetic medical services, like injecting Botox or filler. So once that good faith exam is done by the correct provider, whether it be a physician or a PA or an NP, and that actual procedure is turned over in this case to the LVN, there is going to be some on the spot judgment call as to [00:20:00] exactly what the location of that Botox and filler is going to be, or the volume that they’re using. Typically you’re working with parameters that have already been set by the provider who examined the patient and set out a treatment order and a plan for that treatment, but there is some subjective decision-making on the part of the provider. So there’s the arguments to be made that in this case there was some decision-making that LVN made and the risk that she took on and that not only this arresting officer, but other people have argued, is that the person who is making that subjective decision here, it was the LVN could potentially be exercising some form of independent medical judgement. And that’s really a scope of practice issue that she could have potentially been exercising judgment outside of her scope of practice. I think there was a lot of [00:21:00] nuances in this particular case, and it was not clear even after going back and forth through the transcript of the arresting officer and hearing what the defendants had to stay for themselves after the fact as to what went down there was still some, I guess you could say argument or debate as to what exactly went wrong if anything.
Brad: Totally agree, Renee. I think there’s a lot of nuances to that, especially with when we’re dealing with so many different individuals here because we had a medical assistant, we had a cosmetologist, but all your points are well taken as to what is really required in these types of situations, which is that good faith exam piece. But Michael, you had mentioned this earlier, using telemedicine, we’ve done several episodes and the focus of telemedicine, but maybe we can even dive a little bit deeper into, as what Renee was [00:22:00] talking about is still truly understanding what went wrong here.
Michael: I want to be careful not to overreact because I think the best advice starts with this simple step. You need to make sure you’re doing good faith exams. And when I say that, I mean, not just in form, but in substance. That you actually have a doctor, a physician assistant, or a nurse practitioner that is physically examining and making a diagnosis and treatment plan of a new patient when they come in. So if you think about these arrests kind of cumulatively, one of them is the telemedicine one that is a little bit perplexing and then the other ones, they just didn’t happen at all. And so I think that’s the real lesson to be learned and understand that Texas has its own statutory provision about what’s supposed to happen on [00:23:00] this kind of checklist of what you need to cover when you’re delegating treatments. And so that’s where they tried to go with it, the arresting officer. So you certainly, if you’re in Texas, you want to make sure you’re familiar with what all the boxes are that need to be checked when you’re doing a good faith exam. I agree with the sentiment that on the surface the telemedicine exam seemed to check the boxes as to what you would want to see. Brad, what happened to all the parties involved?
Brad: Well the LV and MD who were in part of this they were no billed in March of 2019. So a couple of years, almost a year later, for those not familiar with no bill as a term, when the grand jury decides they cannot find some sufficient grounds to [00:24:00] indict the accused so that the grand jury did go to them and said, we don’t see any here. The medical assistant eventually had his case dismissed in July of 2019 and the cosmetologist who was indicted, they moved forward for a trial, but after about three years of motion practice, that case was dismissed. So somebody who’s listening to this might be like, oh, this is great outcome from the LVN, the MD, and the cosmetologist. All of them got dismissed, but Michael, what are your thoughts for them?
Michael: Yeah, perhaps no bills were due to kind of technical and nuanced nature of the laws that were being violated and it resulted in the district attorney’s office not being able to clearly communicate and translate this to the grand jury. I think Reading between the lines that the arresting officer, particularly with the [00:25:00] LVN case seemed kind of predetermined to go in. It was a sting and I think that they probably were pushing the envelope. And then almost any medical spa is going to have some compliance issues and they just know the right areas to focus on and going back to what I said a minute ago, couldn’t clearly communicate that.
Brad: Yeah. And Renee, what are your thoughts on this arrest and dismissal?
Renee: I’m hearkening back to many days of watching my, my most favorite show, Law And Order. I would say we would caution medical spa owners, operators against letting the guard down in a situation like this because there may be this thought that it’s a sign of decreased criminal enforcement. But if you remember that opening voiceover from the law and order it’s “we know the justice system is made up [00:26:00] of the police who investigate the crime and the attorneys who prosecute the offenders.” So it’s critical to maintain compliance, to prevent first of course, arrest. We don’t want anyone getting arrested in this space. And even with a dismissal that happened in the LVNs case and in her medical director, I mean, being led away in handcuffs. I think Brad and Michael, as you had said earlier, being led away in handcuffs from your facility is really something you want to avoid. The LVN had her face smeared all over national television and there were a lot of trickle-down effect for her personal life as well. So we can say this case was dismissed and ultimately they were let go, I guess, but we don’t want to forget that the DA’s office did move forward on one of those arrests. And so really taking this seriously, I think is the message.
Brad: Yeah, these are all [00:27:00] great points and it’s important to note, I know a lot of you might be thinking this in the audience, what happened to the licensed individuals, the LV, and MD. They did have to go defend their licenses from the boards and eventually they did eventually get those dismissed. We don’t have copies of what happened, but we’ve discussed in other episodes that going in front of your boards is never something easy. We have examples on when the boards have decided to make examples of individuals. So we’re uncertain as to what happened with these cases, but eventually they also had been dismissed by the boards. At the end of the day these people got a ton of unwanted attention from the media. You can unfortunately Google their names. Anyone who’s listened to this probably has typed it in and know who their names are. Obviously we didn’t want to say who they are, but it’s one of those things that they have to be very careful that you understand that the enforcements. It’s kind of like New Orleans where the drinking age, even though I was in high [00:28:00] school could get in the bars, there was always a law, but how it’s enforced is really what’s in question. So, yeah, there are some places you can get into when you were under 21, but unfortunately I did have some friends that were made examples of when they decided to write a few bars. They did get arrested at some point. So point being is a law and order, as Renee was using earlier, if the arresting officer sides arrest you, you still get arrested. Renee, let’s get some final thoughts here in our last few minutes. What do you think?
Renee: Sure. Well, I think this event really was earth shattering for the industry, but we’ve learned a lot of lessons from what happened in Houston. And I think personally for all our clients, there has been a tremendous amount of push to become compliant. And so my advice is always, if you feel okay, you’re not exactly sure or something [00:29:00] feels off as to what you’re doing in your med spa, call your attorney and ask them the question before you go on.
Michael: The good news is that everything got dismissed otherwise this would have been an episode on our dumpster fire season. And so that’s the glass half full way to look at it, but the takeaway I think for us to remember is there really are criminal consequences written in almost every state law for the unauthorized practice of medicine. And just because there isn’t a history of enforcement criminally, we have to recognize that it is a possibility. And I don’t know what the future holds after the unsuccessful attempts to prosecute these particular cases. I do know that it’s more on top of mind for us now when we’re advising clients
Brad: All great points. Renee, thanks for joining us.
Renee: Thanks so much for having me. [00:30:00]
Brad: Audience, join us next Wednesday for Fumbled College Football Contracts With Mike Lyons.
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