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Industry News: State Regs

Texas Judge Declares Medical Spa Rule Invalid- Further Consideration Ordered

Wednesday, July 23, 2014   (0 Comments)
Posted by: Renee Coover
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Written by: Stuart Miller is a partner at Strasburger & Price, LLP

Austin, Texas — On July 1, 2014, Judge Stephen Yelenosky of the 126th State District Court in Austin ruled that Texas Medical Board (TMB) Rule 193.17 was without "reasoned justification” and should be remanded to the TMB for further consideration. The order came as a result of a lawsuit brought by the Texas Association of Aesthetic Nurses asking the Rule be invalidated. "While the ruling negates Rule 193.17 for now, you should assume the TMB will be hard at work drafting another rule to regulate nonsurgical medical cosmetic procedures,” stated Stuart Miller of Strasburger & Price, LLP, who has been advising the America Med Spa Association about the new regulations.

Under Rule 193.17, among a laundry list of requirements, medical spas could not perform nonsurgical medical procedures without having a physician, a nurse practitioner or physician assistant on staff to complete a ten-step process before beginning the procedure. The rule did not, however, require a physician actually be on the premises during the procedure, but rather necessitated only that a doctor be available for an emergency consultation. Judge Yelenosky’s order noted that:

The rule allows qualified unlicensed personnel to perform a procedure without a physician or midlevel practitioner onsite during the procedure and without requiring the physician to go onsite in the event of an adverse outcome. Yet the reason given for the rule is that the presence of a physician or mid-level provider during procedures to personally treat or supervise treatment of any complications arising from the procedure insures patient safety. The rule and the justification contradict one another.

"If the Rule were to require a physician or midlevel practitioner to be present during a procedure, it would seem to pass muster with the district court judge,” noted Miller. "This will be a key time period for industry representatives to make their views known to the TMB in order to devise a rule that is workable for the industry and TMB.”

Stuart Miller is a partner at Strasburger & Price, LLP in Houston, Texas. He maintains a general corporate practice with a particular emphasis on the healthcare industry. Since 2005, Stuart has served as an adjunct professor at the University of Houston Clear Lake where he teaches a graduate level course on Legal Aspects of Healthcare Administration. He was named among The Best Lawyers in America®, (Copyright 2012 by Woodward/White, Inc., of Aiken, SC) in 2013 and 2014. For more information about Strasburger or Stuart, please visit http://www.strasburger.com.


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