MED SPA · COMPLIANCE
Package follow-up without the 9 PM text
A text at 9 PM about a package a person has not yet bought is legal under federal law and prohibited under Florida’s. Aesthetic follow-up is the message in healthcare intake most likely to be read as a sales call, so it is the one to configure most carefully. Here is what careful looks like.
A note on what this is: a description of how we configure one type of follow-up, with the statutes it is configured against. It is not legal advice. Whether a particular message is a telephonic sales call is a question a court would decide; the configuration is built so the answer does not matter.
THE SHORT ANSWER
Why aesthetic follow-up is different
A reminder about a scheduled appointment is a treatment communication. A message about a treatment someone has not yet agreed to, sent to persuade them to agree, is closer to marketing, and both HIPAA and the telemarketing statutes treat marketing differently. Most healthcare intake never gets near that line. Med spa follow-up lives on it, because the whole point of the treatment-plan-proposed stage is to turn a consult into a booking for something elective.
The federal TCPA permits solicitation texts until 9 PM local time. Florida stops them at 8 PM and caps them at three per day on the same subject, and Florida’s statute expressly includes text messages. A sequence built to the federal window sends an hour of messages every evening that Florida law does not permit, if those messages are what a court decides they are. The configuration avoids the argument by using the tighter rule.
The four controls
- Window. 8 AM to 8 PM, recipient’s time zone. Scheduled steps that would land later are held to 8 AM.
- Cap. Three outbound contacts per person per 24 hours on the same subject, counted across channels, enforced by the workflow rather than by a guideline.
- Consent. The written-consent standard, captured on its own unchecked checkbox at intake, in the language of the form, stored with the timestamp and text version. If the practice intends promotional messages, that is a separate consent from the scheduling one.
- Exits. Reply, booking, and opt-out each end the sequence. STOP, ALTO, PARE, and the plain-language versions all count.
What the message may and may not say
It may refer to the plan the person discussed at the consult, offer real times for the first session, and mention financing if they asked. It may not describe results, show or reference before-and-after images, quote another patient, or imply that an outcome is typical. The FTC’s rules on health claims and endorsements apply to a text message exactly as they apply to a website, and a “results may vary” line does not cure a claim that implies a typical result. Kept to logistics, the message needs no disclaimer because it makes no claim.
The test we use for every aesthetic template: could this text be read aloud in a deposition without anyone wincing? “You discussed a three-session series with Dr. Alvarez; we have Tuesday at 4 or Thursday at 11 for the first one” passes. Anything with the word “results” in it does not.
Memberships and renewals
A renewal reminder to a current member is a different message: the person already bought, and the message is about a date. It still runs inside the window and under the cap, because there is no cost to that and it avoids the question. A win-back message to a lapsed member, on the other hand, is back on the persuasion side of the line and is configured like the treatment-plan follow-up.
The covered-entity question, again
None of this depends on whether the practice is a HIPAA covered entity. The Telephone Solicitation Act and the TCPA apply to a cash-pay cosmetic practice exactly as they apply to a hospital, and the FTC’s advertising rules apply more, not less, when the service is elective. That is the reason the messaging configuration is the same for every med spa we build, whatever their counsel eventually says about HIPAA.
Check your current sequence
Open whatever sends your follow-ups today and look for four things: the latest hour a message can go out, whether there is any daily cap, what the consent checkbox at intake actually says, and what happens when a person replies “stop” in Spanish. If any of the four is missing, the sequence is a liability with a schedule, and the fix is configuration rather than a new tool.
Questions we get asked about this
Why treat aesthetic follow-up as a sales call?
Because a message meant to persuade someone to book an elective treatment is the closest thing in healthcare intake to marketing. The configuration uses the stricter Florida rules so the question of what a court would call it does not matter.
What may the message say?
The plan discussed at the consult, real times for the first session, and financing if they asked. Not results, before-and-after images, another patient's experience, or anything implying a typical outcome.
Is a renewal reminder to a current member the same?
No. It is about a date on an existing agreement. It still runs inside the window and under the cap because there is no cost to that. A win-back message to a lapsed member is back on the persuasion side.
Does this depend on whether we are a HIPAA covered entity?
No. The Telephone Solicitation Act, the TCPA, and the FTC's advertising rules apply to a cash-pay cosmetic practice exactly as they apply to anyone else.
Related
Want your aesthetic follow-up checked against the four controls?
Send the templates. A 30-minute consultation reads them and says plainly which control each one is missing.