The medical spa business in the United States has experienced exponential growth in the past few years, and Texas is no exception. Technological innovations in the treatments provided at med spas have increased patient satisfaction by reducing recovery times and limiting adverse outcomes. As a result, Texas entrepreneurs have jumped into action to satisfy the rising demand for various non-invasive procedures.
From Botox® to IV Hydration and laser treatments, medical spas provide many lucrative cash-pay offerings to patients nationwide. Both licensed providers and everyday business people alike have seen the value of providing in-demand services without the headache of haggling and fighting for reimbursement from insurers.
However, where technological innovation has been rapid, Texas laws and regulations have been slow to adapt to the modern healthcare landscape. As a result, hopeful entrepreneurs may be surprised by the complexity of compliantly opening a med spa and the severity of punishments for running afoul of the law and the licensing boards. If you want to open a medical spa in Texas, this might sound overwhelming or even worrisome. Have no fear! This post is the second in a five-part series of things our attorneys think you should know before opening a medical spa in the Lone Star State. If you missed Part 1, you can click here to read about Texas’ prohibition of the corporate practice of medicine.
This series is meant as a primer on the big legal issues facing entrepreneurs in medical aesthetics. It is not a substitute for the advice and counsel of our experienced attorneys. Still, it is a great way to increase your understanding of the legal pitfalls and complexities of opening a medical spa anywhere between Galveston and El Paso.
Part 2: Delegation and Supervision.
Non-physicians can perform many of the most popular medical spa treatments, but there are strings attached. As we cautioned in Part 1 of this series, the Texas Medical Board has classified many cosmetic treatments medical spas provide as medical procedures. Consequently, if you want a non-physician to perform treatments (e.g., Botox® injections, dermal fillers, IV hydration) at your medical spa, you must comply with the Texas Medical Board’s physician delegation and supervision rules.
Compliance with these rules is very fact-specific and depends on a variety of factors, including the physician’s location, the experience level of the non-physician AND the physician, the type of license held by the non-physician, the type of procedure performed, and more. It is beyond the scope of this blog post to provide guidance on specific treatments. However, we can examine the baseline requirements that should be met for a physician to delegate a nonsurgical cosmetic procedure to a non-physician.
First, and this may seem obvious, the physician acting as your medical director should be properly trained to perform all procedures they intend to delegate to others.
Next, the physician is also responsible for ensuring the person performing the medical spa treatments has sufficient training in the techniques for each treatment, indications, and contraindications for each treatment, pre-procedural and post-procedural care, recognition and management of potential complications that may result from the treatment; and infectious disease control involved with each treatment.
Additionally, before authorizing a treatment, the physician or another prescriber must:
- take a patient history;
- perform a physical examination;
- make a diagnosis;
- recommend treatment;
- develop a detailed and written treatment plan;
- obtain the patient’s informed consent;
- provide instructions for emergency and follow-up care;
- prepare and maintain an appropriate medical record;
- have signed and dated written standing orders; and
- sign off on the treatment-specific protocols the non-physician will follow when performing the procedure.
Currently, when unlicensed personnel are performing nonsurgical cosmetic procedures, Texas requires that a physician or another prescriber is onsite during the procedure, OR that the delegating physician is available for emergency consultation in the event of an adverse reaction to the treatment. However, as recently as 2023, the Texas Legislature proposed a bill that would strengthen the supervision requirements for medical spas. This legislation did not make it out of the committee stage, but it should be noted that Texas has demonstrated an interest in adopting stricter supervision requirements.
This blog post only scratches the surface of the complexities and peculiarities of Texas physician delegation and supervision rules. If you have a specific question concerning your medical spa’s compliance with these requirements, please click here to schedule a complimentary consultation with one of our attorneys.