Texas Judge Declares Medical Spa Rule Invalid- Further Consideration Ordered
Wednesday, July 23, 2014
Posted by: Renee Coover
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.