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What Does the Recent Texas Botox Arrest Mean to You?

Posted By Administration, Thursday, November 15, 2018

By Alex R. Thiersch, CEO  of the American Med Spa Association (AmSpa)

As many have seen in the news recently, a Texas LVN named Michelle Bogle from Savvy Chic Medical Spa was arrested under the claim that she was practicing medicine without a license.; specifically, she was offering Botox injections. Although all of the facts about the case are not known, AmSpa wanted to take this time to review the rules in relation to delegating cosmetic medical procedures in Texas. The state of Texas is fairly liberal in who it allows to physically perform Botox and other injectable procedures. Anyone with proper training may inject Botox and other cosmetic injectable as long as it is under the protocols, supervision, and delegation of a physician. The Texas Medical Board has adopted Rule §193.17 (available here) to provide guidance to physicians who delegate these nonsurgical cosmetic procedures. The rule applies to nonsurgical cosmetic procedures, including injecting or using a prescription medical device performed by someone who is not otherwise licensed to perform the procedure and not a physician, PA, or NP.  The rule includes 13 points that physicians must adhere to in properly supervising and delegating such a procedure to anyone other than a physician assistant or a nurse practitioner. These include the following.

  1. A physician is responsible for being properly and appropriately trained in the specific procedure, and keep records documenting their training.  
  2. Before the procedure is performed, the physician or a PA or NP acting under their delegation must perform an initial examination. This examination must include: taking a history, performing a physical exam, making a diagnosis, recommending treatment, developing a treatment plan, obtaining a patient’s informed consent, and providing emergency and follow-up care instructions. They must also maintain medical records, and have signed and dated written protocols and standing orders for the procedure
  3. Following the above examination and diagnosis, the procedure can be delegated to another person as long as a PA, NP, or physician is on-site, or the delegating physician is available for emergency consultation and able to conduct an emergency appointment if necessary.
  4. The physician, regardless of who they delegate to, maintains ultimate responsibility for patient safety. 
  5. The physician is also responsible for documenting and maintaining the patient records. 
  6. The facility must have a quality assurance program in place, including mechanisms to identify complications, adhere to protocols, monitor the quality of treatments, a review and improvement mechanism for protocols, and ongoing training.
  7. Physicians can delegate procedures only at a facility where they have either approved of that facility’s written protocols for the procedure or they have developed their own protocols.
  8. The physician must also make sure that the delegated person has appropriate training in several areas related to performing procedures (see the rule for details).
  9. The physician must have in place a written office protocol for the delegated person to follow in performing the procedure.  his protocol must identify the delegating physician, criteria for the physician, PA, or NP to screen the patients, and description of appropriate follow-up care including for complications, injury, and emergencies.
  10. The physician must make sure that the delegated person follows that written office protocol.
  11. Patients must sign consent forms before receiving any treatment. The form must identify potential side effects, complications, and identity of who will perform the procedure.
  12. The delegated person who performs the procedure must have a name tag which discloses their name and their credentials. 
  13. The facility must have at least one person on-site who is trained in basic life support whenever a procedure is performed.

Each of these above points are necessary to be in compliance with the rule. However, this article is not meant to be an exhaustive compliance check rather to give more of an overview. So, if you are a physician planning on delegating such procedures to anyone other than a PA or NP, please carefully review the rule in total or consult with an attorney to ensure that you develop policies and procedures that are compliant with its requirements.   

The implications of this story are far-reaching. This is the second instance of an LVN being charged with the unauthorized practice of medicine in recent months as a result of an undercover sting operation (the other occurred in California). AmSpa encourages all of its members—particularly those in Texas—to ensure that they strictly comply with every step of the Texas delegation and supervision rules governing cosmetic procedures. Following each step specifically is critical, and practitioners must take care to pay very close attention to the specifics of the rule and follow it exactly. As now has been seen, failure to do so may result in criminal prosecution, not to mention action by the medical and/or nursing boards.

Tags:  Med Spa Law 

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