A critical compliance aspect of med spa operations requires the owner to understand a legal doctrine known as the corporate practice of medicine. This principle refers to a set of requirements that restrict the ability of businesses, rather than individual licensed healthcare professionals, to practice medicine.
Because medical aesthetics and the practice of medicine intersect, med spas need to be aware of and comply with the specific laws and regulations around the corporate practice of medicine so as to ensure that their business structures and practices align with the requisite legal obligations.
And although Texas has a legal framework that generally does not strictly adhere to the traditional concept of the corporate practice of medicine, it still exists. This article identifies two key points for med spa owners to consider when evaluating compliance with these laws: ownership and control as well as scope of practice.
Ownership and Control:
Texas does have a specific statute prohibiting the corporate practice of medicine, but it is vague and difficult to understand. However, med spa owners should be aware of and comply with state regulations governing the practice of medicine and allied health services. To refute a huge misconception, you do not have to be a doctor to own a med spa. Med spas are owned by nurses, aestheticians, and unlicensed individuals. What is not allowed is to have a physician and a non-physician jointly own a med spa. Such an arrangement is seen as compromising the physician’s independent medical judgment because in theory the non-physician can exert control over the provision of medicine. In non-physician settings, a medical director is secured through an independent contractor agreement giving them complete control over the administration of medicine.
Scope of Practice for Non-Physician Practitioners & Supervision Requirements:
In Texas, non-physician practitioners, such as nurse practitioners and physician assistants, may be allowed to perform certain medical aesthetic procedures in med spas. But, they typically need to do so under the supervision of a licensed physician or under proper delegation authority to a mid-level. Clear guidelines for supervision and delegation must be in place to ensure compliance with the regulations. The heart of the delegation requirement is in Texas Administrative Code §193.17 (d)(2)(a-k) which provides:
(2) Prior to authorizing a procedure, a physician, or a midlevel practitioner acting under the delegation of a physician, must:
(A) take a history;
(B) perform an appropriate physical examination;
(C) make an appropriate diagnosis;
(D) recommend appropriate treatment;
(E) develop a detailed and written treatment plan;
(F) obtain the patient's informed consent;
(G) provide instructions for emergency and follow-up care;
(H) prepare and maintain an appropriate medical record;
(I) have signed and dated written protocols as described in paragraph (7) of this subsection that are detailed to a level of specificity that the person performing the procedure may readily follow; and
(J) have signed and dated written standing orders.
(K) The performance of the items listed in subparagraphs (A) - (J) of this paragraph must be documented in the patient's medical record.
Conclusion on Medical Aesthetics & the Practice of Medicine
The statute allows a mid-level to perform many of these functions, but that in turn requires a physician delegation agreement to be on file in the physician’s TMB on-line profile. As is apparent from the statute, the paperwork is critical and needs to be done properly. Once so, even an unlicensed person may perform procedures pursuant to Texas Administrative Code §193.17(d)(3). But no matter who does the procedure, the responsibly for patient safety ultimately rests with the medical director (Tex. Admin. Code §193.17 (d)(6)).
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