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#ProtectTXMedSpas

#ProtectTXMedSpas

The 2021 legislative session begins in January of 2021, with bill filing typically starting in the November before session begins (just a couple of months from now).

The TMSA has learned that the American Med Spa Association (AmSpa) is having a bill drafted for filing in the upcoming 2021 Texas legislative session.

TMSA has agreed to provide feedback to AmSpa from Texas Med Spa owners about the law AmSpa wants to pass. According to AmSpa, they want to pass this model law in Texas first and then pursue it as a model law for all 50 states.

While AmSpa is not willing to provide the exact bill language or drafting instructions for the bill that they are having drafted, AmSpa has provided TMSA with its draft national practice guidelines on which they say the bill will be based. The bill would include some things that are already required by TMB Rule 193.17 but also a number of new regulatory requirements. Some of these proposed new requirements are listed below:

Regulating Med Spas as Medical Practices and Requiring Physician Ownership.

Currently, Texas does not directly regulate “med spas.” Instead, the Texas Medical Board regulates the performance of certain non-surgical medical cosmetic procedures. AmSpa wants to define Texas med spas as “medical practices” and require “strict adherence” to the corporate practice of medicine doctrine, which AmSpa says “restricts ownership of medical practices to physicians.

Presumably, given that AmSpa’s member website already tells its Texas members that physician ownership of med spas is required in Texas and that non-physician owners can be punished with criminal and civil penalties by the Texas Attorney General, it’s a likely bet that a requirement for physician ownership will also be included in their bill (also relevant to this item, the Texas Medical Board acknowledged during the past year that there is no requirement for physician ownership of med spas; and the Texas Attorney General reports it has never taken any action against a med spa for any reason, including ownership).

Limits on Delegation and Onsite Requirements

AmSpa proposes that physicians should only be able to delegate procedures to the types of medical professionals below, subject to certain onsite requirements regarding the types of medical professionals it feels should be onsite for each type of procedure. AmSpa’s proposed limitations on delegation and its recommendations for mandatory types of supervision, including onsite, that should be required, are as follows:

Ablative lasers or ablative energy devices

From AmSpa’s practice guidelines: “Ablative lasers are intended to excise or vaporize the outer layer of skin. These procedures should only be performed by a physician, or delegated to an appropriately trained RN, NP, or PA with the physician directly supervising the procedure in the same room.”

In other words, these treatments could only be performed by a physician or an RA, NP (APRN) or PA with a physician directly supervising the procedure in the same room.

Non-Ablative Lasers, Light Treatments, and Energy Device Treatments

From AmSpa’s practice guidelines: “Non-ablative treatments that do not excise or vaporize the outer layer of skin can be provided by physicians, NPs, and PAs. These procedures may be delegated to RNs and LPNs/LVNs under general supervision, provided a qualified RN or above (PA, NP, or MD/DO) is onsite. MAs may be delegated these treatments under the direct, onsite supervision of a physician, NP, or PA.”

In other words, these treatments can be delegated to RNs and LPNs/LVNs if an RN or above is onsite. Anyone that is not a nurse or above cannot perform the procedure unless a physician, NP (APRN) or PA is onsite.

Microneedling

From AmSpa’s practice guidelines: “Microneedling treatments, irrespective of depth, can be provided by physicians, NPs, and PAs. RNs may be delegated these treatments under general supervision. LPNs/LVNs, and MAs may be delegated these treatments under the direct, onsite supervision of a physician, NP, or PA.” 

In other words these treatments can be delegated to RNs and LPNs/LVNs if an RN or above is onsite. Anyone that is not a nurse or above cannot perform the procedure unless a physician, NP (APRN) or PA is onsite.

Injection of fillers, neuromodulators or PDO Threads.

From AmSpa’s practice guidelines: “Injectable treatments such as fillers and neuromodulators, and the insertion of PDO Threads, may be performed by physicians, NPs, and PAs. These procedures may be delegated only to trained and qualified RNs acting under the general supervision of a physician, NP, or PA.”

In other words, these procedures could only be performed by an RN or above but the supervision would remain the same as under current law.

There are many other provisions of the law regulating med spas that AmSpa wants to pass in Texas this legislative session, and, as with any bill, the devil will be in the details. There are additional requirements in the practice guidelines that may be problematic for Texas Med Spas as well as the physicians that oversee these procedures. However, the provisions above seemed to be the most likely on their face to cause concern for current Texas Med Spa owners.

TMSA will be polling its members for feedback on these and other provisions in the proposed AmSpa legislation and will be providing that feedback to AmSpa. However, we are also interested in hearing feedback from non-members. If you would like to provide feedback, please provide your contact details to [email protected].

The TSMA holding an open information session on September 21, 2020, at 7pm. To RSVP, please email [email protected]. A link to the session will be provided by email to those who have signed up.

To see the full text of AmSpa’s Practice Guidelines on which AmSpa says it is basing its proposed bill, go to:
https://www.dropbox.com/…/Practice%20Guidelines%20for

Thank you,

Jocelyn Dabeau

Jocelyn Dabeau

Government Affairs, TMSA Lobbyist

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