By Patrick O’Brien, JD, General Counsel, American Med Spa Association (AmSpa)

Has your mother-in-law ever “organized” your kitchen and then you couldn’t find anything? You know all your pots, pans and spatulas still exist, but good luck trying to find them. Recently, the Texas Medical Board undertook a comprehensive review and restructuring of its administrative rules with the aim of streamlining and clarity. This includes the former Rule §193.17 which covered delegation of non-surgical medical cosmetic procedures. With the new restructure, Rule §193.17 is gone and in its place are a set of general delegation rules under Rule §169. But did everything change or is it basically all the same provisions—just “organized?” This article will give a roadmap of the new rules so you can find where everything has gone.

Whereas rule §193.17 had all its provisions under the single heading, the reorganization divides them among four separate rules under subchapter E—“other delegated acts.” There is substantial simplification and streamlining, resulting in the new rules being roughly 50% shorter than the old rule.

§169.25 – This provision is analogous to the first “purpose” section of Rule §193.17. This provision says that non-surgical medical cosmetic procedures are the practice of medicine and must be properly delegated and supervised. Definitions and general provisions have been moved to Rule §169.1 but no longer have the “med spa” specific terms.

§169.26 – Covers the “general standards” for delegating tasks and covers much of the same ground as section “d” of Rule §193.17. Under the new rule, the physician must make sure that the people they delegate to have appropriate training and there is a signed written protocol. As before, the physician must also be trained in the procedures they delegate. Before a procedure can be delegated, a physician, physician assistant (PA) or advanced practice registered nurse (APRN) must establish a practitioner-patient relationship, create and maintain medical records for the patient, disclose who will be performing the delegated act and their credentials, and make sure that at least one person with basic life support training is on site. For supervision, the physician, PA or APRN must be on site or immediately available for emergency consultation; the physician must be able to conduct an emergency appointment if necessary. 

§169.27 – Covers the responsibilities of a delegating physician using written orders, which are similar to the “written protocols” used in Rule §193.17. In the new rule, the physician must develop the written orders or must review and approve any existing orders. These orders must include the identity of the delegating physician, selection criteria for screening patients, a description of appropriate care, and procedures for injuries, complications or emergencies. 

§169.28 – Covers notice and identification requirements and is similar to Rule §193.17’s section “e,” which was added in 2019. This provision requires that the names of the delegating physicians and the mandatory complaint notification in §177.2 must be posted in public areas and treatment rooms of the facility. Additionally, all persons who perform delegated medical acts must have name tags that identify their name and license or credential.

In all, the rules are substantially simpler and will be much easier to understand and comply with. But will your practice need to make changes? Possibly. If your practices, policies and procedures complied with Rule §193.17, there is a good chance that they will comply with Rule §169, perhaps only needing some updated wording or citations. But, if any of the above sounded new or surprising, you may need to make more substantial changes. Either way, this is an excellent opportunity to review your existing practices and protocols to make sure they line up with the new rules. It may also be worth doing a more comprehensive review, like the Texas Medical Board did, and do some “organizing” of your own. Policies and documents are more likely to be adhered to if they are simple and easier to understand.