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Competing Against the Non-Compete with Amy Anderson and Mara Shorr

By: Hannah Celian | June 26th, 2024

Competing Against the Non-Compete with Amy Anderson and Mara Shorr Blog Feature

A new FTC rule banning non-compete agreements goes into effect this September. While this rule might be better for workers, it raises new questions for practice owners about hiring and retaining valuable staff. 

With Nextech VP of Aesthetics Robin Ntoh and two of the aesthetic industry’s most experienced practice management consultants, Amy Anderson and Mara Shorr, we look closely at the reasons someone might think the grass is greener somewhere else and discuss what really motivates a valuable team member to stay.

FTC Announces Rule Banning Noncompetes

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Guests

Amy Anderson, Co-Founder
BrinsonAnderson Consulting

In her 20+ year career, Amy Anderson has worn virtually every hat, from front desk receptionist, prior authorizations, billing and accounts receivables, to management, human resources, strategic marketing, and business administration. She intimately understands what it takes to run a practice. Her passion is to coach her clients into becoming the best version of themselves.

Connect with Amy on Instagram @amyandersonmba
Connect with Amy on LinkedIn

Mara Shorr, Consultant
BrinsonAnderson Consulting

Mara Shorr has 15 years of experience guiding aesthetic practices across toward their strongest operational, administrative, and financial health. She has served as an editorial board member for DERMASCOPE magazine, writes for numerous aesthetic industry publications, and is a respected international speaker and key opinion leader for nearly a dozen aesthetic industry conferences annually, as well as a proud textbook chapter author for The Business of Plastic Surgery: Volume 2.

Connect with Mara on Instagram @marashorr
Connect with Mara on LinkedIn

 

Learn more about Brinson Anderson & download the Brinson Anderson new practice startup checklist
Follow Brinson Anderson on Instagram @brinsonandersonconsulting

Host

Robin Ntoh, VP of Aesthetics

Access Robin's toolkit of helpful resources to help optimize practice operations»

Transcript

Announcer (00:06):
You are listening to the Aesthetically Speaking podcast presented by Nextech.

Robin (00:14):
Welcome back to the Aesthetically Speaking podcast. I'm Robin Ntoh and today we're going to talk about competing against non-competes. I have got two well-established industry consultants with me today, and I'm going to let them introduce themselves. Amy?

Amy (00:29):
Hi, I'm Amy Anderson. I'm the co-founder of Brinson Anderson Consulting. I've worked in the aesthetic industry and plastic surgery since 2002, believe it or not, and I've worked all the different jobs in an office, managed in private practice offices and moved into consulting about five or six years ago. Now I've lost count, but now I spend all of my time working with surgeons and aesthetic practices, helping them get started and helping them grow, really focused on operations and making them as efficient and profitable as possible.

Robin (01:07):
That's exciting Amy and I see that Mara is now part of the Brinson Anderson family. Mara, tell us a little bit about your background.

Mara (01:15):
My name is Mara Shorr and I have been consulting for probably a decade and a half, but specifically I consult in plastic surgery, cosmetic surgery and the med spa arena. And so I love all things, processes, protocols, HR, and how to make your practice more efficient.

Robin (01:34):
It's pretty exciting, especially since there's so much growth. I mean, the AmSpa state of the union report just came out and it was showing that there's on average about a 9% growth rate from 2022 to 2023 and just in med spas, and that's not even accounting for the med spas that are attached to plastic surgery or dermatology practices. So there's a lot of growth and a lot of demand in this industry. And it's also fascinating to see that we're now starting to see a lot of mid-level. So your nurse practitioners, your advanced providers that are starting to think about why not be my own boss? Why not go out into business for myself? So let's step back and let's ask the question why would someone want to leave in the first place?

Mara (02:23):
When we think about people that have traditionally worked for somebody else but maybe haven't been out on their own yet, the grass does always seem greener, and that's where we say, is it greener on the other side or is it greener where you water it? And really, I've seen this time and time again where a practice owner, a physician practice owner, a surgeon practice owner will come to me or they'll come to Amy and they'll say, but why should I provide fair compensation? They don't say it like that, but that's maybe what we hear in our head. Why should I pay them more? Why should I give them more benefits they're working for me, why should I provide continuing education? Why should I pay for their CMEs or give them more paid time off? And really the answer is, but if you don't do those things, then we know that they're not going to stay. And if you're not training them well and they do stay, is that really the person you want in your practice?

Amy (03:20):
And I think I would add to that, Mara, you're absolutely right, there's often a lack of investment in those providers in their training and their overall professional development. And I think on the provider side, if all they see is the revenue that they're generating, it's really easy to go, oh my goodness, I brought in a million dollars to the practice last year, not thinking even initially about the cost of goods that went into providing those services. And even if they have an idea of those numbers and subtract them out, I think everybody underestimates the overhead of running a practice, whether it's a plastic surgery practice or a med spa or a dermatology practice, the overhead, as we know is significant. And so I do think part of it is just not truly understanding the full picture of what it takes to start and develop a med spa. And then that other piece, like Mara said, is just not really feeling like they're a valued part of the team.

Robin (04:23):
Do you think that this is where owners should start thinking about sharing some of that cost or at least uncovering that for their providers, giving them a sense of this is what injectables cost, we kind of understand what that is, but this is the price for marketing, this is the price for software, this is the price for having ancillary staff to support you, maybe showing them what the margin is so that they really do have a better sense of what it costs. Where do you find that as being an opportunity in these practices?

Mara (04:57):
They see the money that's coming in, but what they don't see is the money that goes out and where. And so I do think that to have that understanding of not just necessarily even when it comes to this is what a marketing contract is per month and this is what it costs just to host our website, but this is what it's costing us in SEO and that isn't even including a pay-per-click campaign that you're likely going to need when you first do go out on your own.

Robin (05:25):
Yeah, I think that one of the things that I also noticed in the AmSpa report was the number of businesses that are opening in the med spa space that are not even people that actually understand this space. And so it may not just be that it's the nurse practitioner or PA that's opening a new location and leaving the practice if they're in, it could be a dentist or it could be someone that's not even in the medical arena at all that I've noticed is actually starting to think about opening up these spaces. And so there's a lot there that actually suggests opportunity not only for a company like yourself, but just the business side of it, not understanding what goes into building this. Amy, I know that recently I just saw on, I think it was LinkedIn, that you had been working with a new practice that had just launched. Tell us a little bit about when you open a practice, what are some of the things that are expenses that are important for new businesses to think about that they may not often think about?

Amy (06:27):
Oh, that's such a great question. And starting practices is one of our favorite things that we do. And Mara and I have done several new practice openings just in the last year, but you're right, there are a lot of those hidden expenses that a lot of people don't think about. And I got to be honest, Robin, they're really boring things. They're like, you have to buy business insurance that's separate from your malpractice insurance. You have to have just general liability business insurance. That's not sexy, that's not cool, but you need it. Your IT infrastructure, no, you can't just go to the Apple store and buy a couple computers and say, I'm ready to go. I mean, there is an infrastructure that has to be put into place with firewalls and encryption and things I know enough to be dangerous about, but I don't set up that piece of it.

(07:19):
We bring in the experts for that, but there's a significant expense to that. There's the things that everybody does think about, which is the physical office, all of the furnishings, exam chairs are not inexpensive, just your waiting room furniture, all of those things. But even then, continuing on the practice side, getting your initial supplies purchased, I mean, you're going to spend thousands of dollars just on an opening order of medical supplies. And then with all of your vendors, your first order of injectable skincare products, usually there's a minimum purchase that can be $4,000 or more for each of them. And so these things really add up. It's hundreds of thousands of dollars to get a practice set up and open and ready to see patients.

Mara (08:08):
There's the clients that we have that open up right away, but then there's the clients that maybe had worked for somebody else or they are even switching EMRs, and so maybe they've gone out on their own. They started with one EMR, they decided they didn't love it, so they switched to another EMR and they run into a fee to transfer the patient data and that fee can be thousands of dollars alone. And they go, wait a minute. I had no idea that this was coming.

Robin (08:37):
I think a lot of times people think of today's cost, what is it going to cost me to open my doors? But they don't plan for the future. They don't think about scaling in the future. And so a lot of times we will see customers that realize that where they started, maybe it's the type of device that they purchased and it was a simplistic device, maybe they didn't open up with space that allowed them to grow, and then they've realized now they need to scale. Luckily they're busting it at the seams and they don't have the infrastructure or the right tools to help them scale. And so sometimes I think that's another thing to think about. You may spend a little more for different components, but then those things should be there to help you scale because the hope is is that you're going to grow, right? Absolutely. And that's where I think a lot of people are shortsighted in that. But let's circle back and think about this idea of we don't want them to leave. It's an investment in your business to not just attract the right person, but to train them. You train them on software, you train them on your processes, you ingrain them within your practice. How do we retain our talent?

Amy (09:48):
So one of the biggest things that we talk to physicians about, particularly physician owners, is treating other providers like they're a colleague. They need to be treated as equals from a professional level, and that alone is going to improve your longevity of employment. And I'm not saying that they are an equal partner in all of the decisions of the business, but letting them have some say in what their schedule looks like, what treatments they're going to perform, what ideas they have for marketing and patient retention, bringing them into that conversation and not just treating them like they're the hired hand that came in. And the classic threat that I hear so often is, well, everyone's replaceable. Well, yes, but that's not how you keep people around by making them feel like they're just another cog in the wheel.

Mara (10:45):
No, the other is outlining those very clear expectations from the start and what are the plans for the practice? So do you plan that you're going to have three injectors in the next two years or is this going to be your only injector and be upfront and be fair about that. Have a conversation of how you all plan to grow together and do they want to grow with you? Do they want to grow their patient base and do they want to start out as part-time and go full-time? Or do they say, look, I really am going to want only to be here three days a week or two days a week and have those conversations so that everybody gets on the same page and then have check-ins, whether it's once a quarter or every six months and say, how are we doing? Do a temperature check on both sides. How is it working out for both parties?

Robin (11:41):
I think one of the things that I think is key is you said it setting expectations, and recently I was talking to several practices at one of the trade shows and I heard a lot of the transparency conversation. These are the things that I want to start talking about. How do I talk about this? How do I talk about education and put that into my offer letters? How do I talk about what the KPIs are, benchmarks that I'm going to expect of you? But at the same time, like you said, Amy, thinking about treating them with a respect of a provider level versus treating them as if they were just someone that's been hired to fulfill a role, but giving them a voice. I think that going back to the expectation part, there's a lot there that is critical, and I think when you are outlining that offer letter or letter of intent, what are some things that are good transparency rules that you should put in place when you're kicking off the relationship?

Amy (12:45):
I love that you're asking that question Robin and thinking that this happens. It starts at the offer, but I would even back it up and say in the interview process, having a really solid interview process and explaining during that time what the expectations are in terms of work hours. Is this a three day a week, a five day a week? How many hours per day do you have late evening appointments? All of those are, I mean, dress code. Oh, huge, right? Can we have colored hair, tattoos and piercings in some places, fine in others. It's a hard no. Those conversations should be occurring during the interview so that we don't even get to the point of the offer if they're not going to be willing to accept that. Well, and I think something that we're kind of leaning into is it starts with hiring the right person to begin with and really critically screening.

(13:42):
I'm thinking of injectors. An injector is not an injector is not an injector. They are not interchangeable even if they have a similar skillset. It's just like all surgeons are different. They don't have the same personality, the same technique, the same style, how they interact with patients. It's just the same with our aesthetic providers and there are some practices that are just getting started with their aesthetic services and you really need that personality. That's a little bit more of an entrepreneur that understands business development, that wants to be part of marketing efforts, that wants to be part of all of the things to engage and retain patients. There's another personality that says, I want to show up, I want to inject and then I want to go home. There's nothing wrong with that unless they're in the wrong role. If you need the person who's going to help you build it and grow, the person who just wants to show up and do the job isn't your person. Now, if this is injector number five and you have people walking in every day that just wants their Botox, that personality work fine. You have a system, you have your patients, you truly need the technical skills more than anything. So I think it's really important to first understand who it is that you need right now and hire the right person. And then it's a whole lot easier to manage the expectations from there when you have the right fit to begin with.

Robin (15:11):
Yeah, it's important to define the role. Everybody says, well, I need an injector, but you're right. What is the need? What problem am I trying to solve? And really define that profile before you even start going down that path. Let's talk about education. I mean, education is important in this role and it's an investment. How do you see that as being handled when someone does leave or even when you're setting the stage, setting those good expectations at the beginning?

Mara (15:41):
I think that you always want to, whenever you have employee turnover and you want to take a beat and look at why did that person leave, and not just necessarily for that individual, but you want to look at any patterns of people leaving their positions within your practice because you want to look for commonalities there too. Because if you have one person that had been there and they were there for five years or 10 years and their significant other was transferred out of state, that's a one-off. But if you look in your practice and say, nobody has made it past six months. We want to look at why and what is it that we need to change.

Robin (16:25):
Do you generally think that it's a great idea to have people shadow to understand what the business really looks like if you think they're a good candidate, but also giving them an opportunity to see what they might be getting into? I've heard physicians talk and they've used that as a technique.

Amy (16:43):
Absolutely. It's baked into most of our hiring processes to bring in that candidate. And there's a couple of reasons yet I want them, the candidate to see what an actual day looks like. And I'm not saying they're there all day, but to see what your normal flow looks like and clientele, what the technology we're using, what our workflows are, and it's also a great opportunity for the rest of your team to get eyes on this person and are they scrolling on their phone half of the time that they're there? Are they telling stories about the wild night they had last weekend? That's just a little distasteful for an interview process. There is so much that happens and so much talk that is shared amongst other potential coworkers that don't necessarily come up with the manager or owner in the interview. And so we learn so much information from an hour or two of shadowing in the office.

Robin (17:43):
Let's talk about the retention part of this a little bit. You've hired them, you've got them in the door, they're here. What are some things that really can differentiate a practice, not just from how they market outside the practice, but how they really maintain and retain staff, especially those providers?

Mara (18:01):
I think that one of the top issues I see right now is that communication is a key factor, and I think that really establishing solid lines of communication protocols for how you communicate what, and really establishing just everything surrounding who's talking to who about what, who reports to whom in the practice.

Robin (18:27):
Yeah, I think that one-on-ones are something that practices don't really practice. I don't think that they define a true time to sit down with each of the staff members and really engage with them on what's going on. And I think it provides opportunity for people to really have a focus time to commit to career pathing, giving feedback and really helping people flourish in their role, but make them feel like they're an individual and that you care. Career pathing is important today, and we hire them and never think about what's next for them, what do they want? Because I think that's a lot of times where we get into the habit of seeing them leave because we never listened to the fact that they needed more to advance themselves.

Mara (19:13):
But I will say though that, so Amy, do you want to talk a little bit about how you use DISC to communicate differently with different team members?

Amy (19:24):
It's a tool that has helped me immensely in my career. So disc, it's DISC, and it's an assessment tool that helps us really understand how people communicate and mostly how they communicate in the workplace, and so how they give and receive communication and all. If we go through all the four examples, specific people will come to mind. You have your very direct communicators who are just super blunt going to say it like it is maybe even to the point of being offensive, even if they don't mean it, but they give it, they receive it. We're at the other end of the spectrum. You have the person who will crumble into a ball and cry if they are consistently given that kind of communication. They need more time to process. They're not going to be quick to make a decision. And so I'm not going to go through the whole DISC model, but understanding, I think the point really that Mara wants me to make is understanding how people prefer the communication is super important.

(20:25):
And I think it ties into how people receive recognition as well, because it's really easy to focus on the negative feedback that we have to give, but how do we praise people? There are some who absolutely announce it at the staff meeting, post me on social media. I want all the attention that feels so good. And again, others who would be mortified and crawl under their desk, they do not want that, but a little handwritten note would mean the world to them. And so all of this comes around to knowing your employees, knowing what makes them tick and how to best motivate them. And the employers that pay attention to that truly do have employees that stay around a lot longer.

Robin (21:09):
It's really defining a culture, but then just making sure that you're treating your staff like the individuals and recognizing their strengths and their weaknesses and helping to coach them and cultivate that. I think there's so much there that's important. And a lot of times providers want to either be in the or, they want to see patients or they want to focus on what they love doing. They don't want to focus on the administrative part. They don't want to handhold. They don't want to feel like, oh, now I've got to just micromanage the process because there's effort that goes into building and coaching and cultivating a really great team. And I think that those practices that do that we see over and over again where they actually have, you'll go into these practices and you'll hear things like, yeah, my aesthetician's been here for 15 years.

(21:58):
That's huge success for that practice. It speaks volumes and that's what a practice should be striving for. And that actually is starting to differentiate practices and practices are thinking, how do I differentiate myself? Well, they should start thinking about my staff or one of the ways that I could differentiate myself. So I know we think a lot about my staff will leave me, but a lot of times they're not investing in. You guys have spoken about a lot of great, great things. Let's pivot a little bit. When we think about staff leaving, what are some things that practices should be doing to protect themselves? Because it's going to happen, people eventually will go, and it doesn't always have to be a bad breakup. It could be that it's mutually understand that they've understood that this is going to happen, but you still need to protect the practice. What are some things that practices should be thinking about as they look at their own business and think about how they keep the securities in place?

Mara (23:00):
I think you need to have a breakup checklist, and it's all the things that, it's a list of passwords that are going to need to be changed when somebody leaves. Making sure that, do we have a physical key or is it a key code that's going to need to be changed? What order are you having which conversations? In other words, if that's somebody, because it's a big difference too as far as the timelines, if you've let somebody go versus if somebody is leaving on their own accord. Because if you have to let an employee go, there needs to be really a list of what's happening while that employee is being let go and letting your EMR company know, we're going to need this password changed at this time. I need you to be on call for that. I have mixed feelings, quite honestly on exit interviews because I think they're somewhat effective, but we need to find out why that person was leaving if it's not incredibly obvious. So we need to just get some general feedback about is there anything we could have done differently and it should be done by somebody that is maybe one step removed from the situation if there was a situation.

Amy (24:09):
I love that Mara, for sure, that checklist that instead of termination checklists, I really like breakup checklists. It sounds a little bit better, but if we take a step backwards prior to that, termination limitations on software in terms of who has the ability to export the entire patient list our names and contact information. If somebody is planning to leave and they have access, why wouldn't they? I shouldn't say that, but they could take a download of all of the patient information with them. So checking permissions and making sure that that is locked down.

Mara (24:47):
Before they leave.

Amy (24:47):
Before they leave. And so this is just like a normal every day,

Robin (24:51):
From day one.

Mara (24:52):
Day one. Yes.

Robin (24:54):
Not even the month before. It should be day one.

Amy (24:57):
Correct. Another important feature that we talk about, or not even a feature, but expectation is how providers are communicating with their patients. We want them communicating between appointments in a HIPAA compliant, secure way, not texting on their personal device. And this happens all of the time. You guys, your esthetician gives somebody their number, I'll text you tomorrow, send me a picture, because we were friends, we become friends with our providers, but that's not how it should be done. One, again, from the patient privacy standpoint, but two, now they have all of their patient's contact information stored on their phone. So when we want to protect the business from soliciting patients away, it starts with having those good protocols and policies in place with how we communicate with patients on a regular basis.

Robin (25:51):
What type of legal things should they be considering? No non-competes, but non-disclosure agreements.

Mara (25:58):
There needs to be not just an NDA, like a non-disclosure, but a non-solicitation as well. I love a good social media policy where we are really stating who has access to which social media accounts, what can and can't be said on them on behalf of the practice. So we need to make that very, very clear as well. And Amy, do you want to talk a little bit about what to include in your photography consent so that to keep the legals at bay?

Amy (26:31):
Oh goodness. I think talking about photography, but it is important to first of all take a look at the consent form to see who is granted permission to take the photos as well as post the photos. Because most of the time those consent forms specify the practice and not the individual provider. So we have to be very intentional about the patients giving the practice permission to post those photos, not their individual provider. And so posting it on one account and then sharing it to another fine, because those consents also say once it's on the web, it's on the web, but it does come a topic of conversation when the provider leaves and wants to take their photos with them. And that I would say definitely have your attorney look at the consent form to make sure it says what you think it says to make sure you're protected.

Mara (27:26):
And I would say making sure that your paperwork, as far as the offer letter paperwork, any onboarding paperwork really should be reviewed initially by an attorney. I'm not saying anytime you ever hire anybody, but I'm saying when you're setting up your practice, you don't want to start putting things in an offer letter that should perhaps be in a contract things in a contract that would only be in an offer letter and making sure that you're not trying to hold them to something that they're not able to be held to in the long run.

Amy (27:58):
But I think if we bring this back around to the non-compete conversation, which is what generated this whole topic is, and we have to just say that even if the non-compete is unenforceable, non-disclosure, non-solicitation still stands, and actually the state of New York, I don't agree with all of their labor practices, but we have to abide by them. But they have a really good outline for a letter. They require written notification for all employees after termination. And that's honestly if it's voluntary or involuntary. But one of the elements on it, and this is on their state website, is a statement about reminding them of any things. They are continued to be bound by after termination. And so that includes you're still bound by patient privacy laws, your non-disclosure and your non-solicitation. So I think just that reminder at that time that we're ending the relationship. So there's no confusion, but I still want to end things on the high note of, I really want to make this a practice that people don't want to leave, that we're not so focused and so worried about, oh my goodness, we no longer have non-competes. What are we going to do? How do we protect ourselves from people going right across the street and competing? And the answer just always is, make it a place they never want to leave, that it truly is so professionally fulfilling to work there and to be on your team that there's just no reason to think about going elsewhere.

Robin (29:31):
I think the resounding message should be that non-competes really shouldn't ever have been an issue in the first place if you were really investing in your staff the right way. That's right. If you're thinking about celebrating the successes, retention measures, opportunity, learning how to really treat them like human beings and professionals and respecting them, there's a lot of things that will be delivered from that, including a long-term path of success in the practice.

Mara (30:02):
Yes, yes. Resounding yes.

Amy (30:04):
Couldn't agree more.

Mara (30:05):
And Amy and I will say the two of us are incredibly positive human beings where yes, we look at it of this is what you need to do if things go sideways and when things go wrong eventually. But our goal is always to protect and wrap everybody in this happy bubble first. Right?

Robin (30:22):
So before we close out, let's tell people where they can find you, find out more information about your firm, and specifically what kind of practices do you work with? Sounds like startup as well as existing practices, just a little bit of info about that.

Amy (30:37):
So our website is brinson anderson.com, and Mara and I and a few of our colleagues work exclusively with aesthetic practices. So that would be plastic surgeons, facial plastic surgeons, dermatologists, med spas that are all in the aesthetic sphere. We do work with practices that do insurance as well. So don't feel like you have to be all cosmetic. We'll be happy to work with you. The other arm of Brinson Anderson is focused on orthopedics and ENT practices. But all in all, we work with boutique, private practice, surgical and aesthetic offices. And so we love a new practice startup, and we're hearing more and more that not a lot of consultants want to do that piece of it because it's a lot of work, but we have a lot of fun with it. So we have a page on our website with our super long, very detailed new practice startup checklist that we will give to you.

(31:34):
It's a free download on our website. I found myself just giving it away anytime somebody called me and I thought, I'll put it online, because if you're thinking about starting a practice, it's all the steps you need to do. And most people look at it and say, wow, this is more than I thought. Can you help us? And the answer is yes, we would love to do that. And then as well as existing practices, if you're looking to add a provider, add a location, grow. We have several clients that are in talks with private equity or other MSOs that they're thinking of merging with. We can help you navigate through those transitions. And then even the practices that are end of career and talking about what's next. So really all stages of the business, we're there to help you make those decisions and navigate through them.

Mara (32:21):
And I will say we're on, and by we, I mean, Amy has done such a great job of making sure we're on all the socials, so you can invite us on Facebook, LinkedIn, Instagram.

Robin (32:34):
Ladies, thank you so much for joining us today for our aesthetically minded people that are out there listening today.

Mara (32:41):
Thank you so much.

Amy (32:43):
Thanks for having us.

Announcer (32:48):
Thanks for listening to Aesthetically Speaking, the podcast where beauty meets business, presented by Nextech. Follow and subscribe on Apple, Spotify, YouTube, or wherever you like to listen to podcasts. Links to the resources mentioned on this podcast or available in your show notes. For more information about Nextech, visit nextech.com, or to learn more about TouchMD, go to touchmd.com. Aesthetically Speaking is a production of The Axis, T-H-E-A-X-I-S.io.