By Eric Atienza, Assistant Director of Digital Marketing and Marketing Technology

Last week a bill was introduced in Texas that would drastically affect med spas, severely reducing the scope of nurse practitioners (NPs) and physician assistants (PAs) in aesthetic practices. As written, HB 3749 would overly restrict trained, licensed, legally compliant practitioners while not doing enough to safeguard the public against the risks of unlicensed persons illegally administering medical aesthetic treatments.

AmSpa hosted a webinar on Tuesday, March 11 to break down the provisions in the bill, outline how it might affect the med spa industry and provide next steps to take for medical aesthetic professionals to make their voices heard. The webinar featured:

• Alex R. Thiersch, JD, CEO, AmSpa
• Cathy Christensen, President, CSO, AmSpa
• Patrick O'Brien, JD, General Counsel, AmSpa
• Taylor Siemens, NP-C, VP of Operations, Vitalyc Medspa

Click here to view the webinar and keep reading for a recap of what was covered.

The bill was sponsored by Rep. Angelia Orr directly in response to the tragic death of Jenifer Cleveland during an IV treatment last year. While AmSpa has serious reservations regarding the bill’s specifics, it’s important to remember that patient safety is the first priority in med spas and we should all be striving for regulations that put patients first.

“The reason it was filed is obviously just and right,” said Thiersch, “and I don’t think we should forget that. Irrespective of what we feel about the language of the bill we can’t deny that this did happen and things like this have happened.”

"This bill is coming from a really good, well-intended place to protect patients, and I think it’s going to be important that we keep that in mind as we’re evaluating these things,” Siemens said. “Patient safety is everything that we are all trying to strive for here.”

Scope of HB 3749 in regulating medical spas

Though the impetus of the bill was a tragic outcome relating to an IV treatment, this bill seeks to regulate not just IV facilities, but also all facilities engaging in “cosmetic medical procedures” which are defined here as:

“…a medical procedure or medical treatment that is performed to alter or reshape normal structures of the human body or to ablate or remove living tissue solely to improve physical appearance. The term includes the administration of a neuromodulator or dermal filler, an ablative or non-ablative laser procedure, and a procedure using an energy-emitting device.” 

Good Faith Exam

Under current Texas law — across all medical specialties — NPs and PAs, with a collaborating agreement with a physician, may establish the patient relationship, administer the initial patient assessment (Good Faith Exam), diagnose and create a treatment plan.

HB 3749 restricts those duties only to physicians, removing trained medical professionals from duties that are legally within their scope of practice.  

"If this bill were to pass, for cosmetic medicine the PA or NP wouldn’t be able to examine patients or prescribe those procedures,” said O’Brien. “They’d still have their regular scope in primary care and other things like that, but for med spa type procedures this would be a physician-only proposition."

“The biggest area of concern for me as a nurse practitioner is the fact that it’s saying that physicians are the only ones able to do that good faith exam to establish a patient care relationship, just because our licensure covers that,” Siemens said. “Any other type of specialty, primary care, specialty medicine, an APRN or PA has the ability to write a treatment plan, to diagnose, to create and prescribe medications and treatment plans. So it’s a little alarming that that is on the table to be taken away… Just focusing on the fact that our licensure as NPs and PAs covers that already through our certifications and our certifying boards.”

Supervision

HB 3749 requires physicians to be either on site or immediately physically available to supervise treatments and removes the ability for NPs and PAs to supervise aesthetic medicine procedures.

Once again, this removes trained clinicians from a process that is established across all other medical fields and puts additional demands on the time of physicians, potentially pulling them away from their primary practices in order to oversee medical aesthetic treatments in their med spa.

It’s imperative to remember that medical aesthetics is the practice of medicine and patient safety is paramount. The bill’s provisions that require onsite personnel trained to perform life-saving treatment are admirable. However, limiting the scope of practice of PAs and NPs puts unnecessary limits on trained medical professionals.

"We have our life support training, many of us advanced life support training based on our certifying bodies,” Siemens said. “In any other medical setting we are equipped and licensed to be able to handle those emergency situations, so I’m not sure why in a med spa that would not be the case any longer.” 

Does this bill fix the problem?

Though the bill ostensibly seeks to remedy gaps in regulation that resulted in a death from an improperly administered IV treatment, there are no practical changes to the law in Texas relating to IV therapy treatments. While the new bill makes stark changes with regard to NPs and PAs, the section handling IV treatments is largely unchanged.  

Indeed, this new law does very little to address the actual issues that occurred leading to Jenifer Cleveland’s tragic death, namely unlicensed persons providing treatment without the supervision of licensed medical providers.

“Even if you change the law, in Jenifer Cleveland’s case the law wasn’t being followed,” said Thiersch.

“I won’t get into the specifics (of that case) but it’s very clear that there were lacking SOPs,” said Siemens. “There were lacking orders for delegation, and so I agree that there needs to be something to make sure that people are following the rules. But for those of us who are following the laws as they are, we are not ordering medications that have not been permitted by our medical directors and things of that nature.”  

“In that tragedy the rules as they existed were not being followed,” O’Brien said. “So if you were to try and pass something to make that case not happen again I think you’d see a different language. A PA or registered nurse weren’t involved at all in that case, so I don’t see how this section addresses, at all, that tragedy.”

“(With regard to IV) what they do with the law that they propose is basically restate the current law as-is, and if they were really trying to fix what happened in that IV case I would think there would be more care to address that side whereas most of the bill is dedicated toward medical spas, other treatments and primarily removing PAs and nurse practitioners from being able to do the good faith exam,” Thiersch said.

“The majority of the industry wants to get rid of the bad actors,” said Christensen. “That’s something we all want to do, especially the law-abiding practices. The problem with this legislation is just that it overshoots the actual issue.”

Next Steps

While AmSpa believes in regulation and legal compliance, this bill as written does not protect patients as it is intended. It instead curtails the ability of licensed, trained and qualified medical professionals to provide the level of patient care in aesthetic medicine that they provide in other medical specialties.

The bill also does nothing to protect patients against unlicensed persons illegally providing treatment.

"We're not fighting this bill because the feeling is invalid. It's just not a good bill,” said Thiersch. “It doesn't do the things we need it to do (to protect patients). If it passes it will be a tremendous blow not only to med spas but to the industry as a whole."

"I think ultimately my takeaway is from an organization aspect of it,” said Christensen. “The need to really start, as one entity, to figure out how to move forward with this and help people really understand what we really do as an industry. NPs, PAs: their role in this industry is significant."

While the bill has been introduced in Texas, as of this webinar it has not yet been assigned to a committee. However, due to the nature of the bill and the outside support it's receiving from a number of physician organizations, AmSpa believes it is likely to move forward to this next step.

“There’s a lot of education needed in legislatures to understand what we do and how safe we actually are,” said Christensen. “And AmSpa is willing to take that on and we hope you are too because the industry is only as strong as its people.”

“Our industry,” said Thiersch, “when we get motivated and activated, is really, really powerful.”

If you are a medical aesthetic professional in Texas, click here to find your state representative. AmSpa highly recommends you reach out to make your voice heard. If you’re not sure how to approach this outreach AmSpa has also drafted this form letter to give you a place to start.

In the coming days, weeks and months AmSpa will be releasing more ways to get involved to make sure that trained, safe, legally compliant medical practitioners continue to have a space in medical aesthetics.  

"We have to rally around each other and do the things we know we can do,” said Thiersch. “Whether it’s consistent minimum standards or credentialing. We’ve got to do that because this bill is an example of what happens if we don't."

About the Speakers

Alex R. Thiersch, JD, is the founder of the American Med Spa Association, and he is also a partner at the business, health care and aesthetic law firm of ByrdAdatto. He has extensive experience representing industry professionals before state medical boards and is one of the most sought-after speakers in the country regarding matters of practice management and medical aesthetic law, including conferences for the American Society of Plastic Surgeons, the American Society for Aesthetic Plastic Surgery, the Global Aesthetics Conference, Vegas Cosmetic Surgery, the American Academy of Anti-Aging Medicine, the Medical Spa Show and others.

Cathy Christensen is the president and chief strategy officer of the American Med Spa Association (AmSpa), and has been with the company since its infancy, joining as director of operations in 2013. Prior to this, she worked in the publishing industry, where she began as an editorial assistant and transitioned into her second career in operations of AmSpa after climbing the ladder to become the editor-in-chief of Skin Inc. magazine and the conference director of the Face & Body events. Christensen has contributed to AmSpa’s significant growth since 2013, and oversees team members who specialize in marketing, membership, sales, events, legal and content. She prides herself in her ability to embrace challenges and persevere, and even have a little fun while doing it.

Patrick O’Brien, JD is the General Counsel for the American Med Spa Association. Patrick’s practice focuses on state and federal health care laws and regulations, and legislative developments in health care primarily for the aesthetic industry. He provides educational and informational resources to AmSpa’s members to help them navigate their state’s regulatory landscape and assisting AmSpa in its legislative efforts.

Taylor Siemens, NP-C, a board-certified nurse practitioner recognized by the American Association of Nurse Practitioners, is a dynamic force in the world of aesthetic medicine. With an unyielding passion for empowering and educating aesthetic clinicians, Siemens stands at the forefront of innovation. As the VP of operations at Vitalyc Medspa and the visionary founder of My Aesthetic Training, she seamlessly marries the expertise of a practitioner of medicine and multi-site business. Siemens's journey into aesthetic medicine commenced as an operating room nurse specializing in facial plastic surgery. This foundation equipped her with invaluable insights and skills, encompassing laser resurfacing procedures and the artistry of cosmetic injectables. Through her diverse patient interactions, Siemens has honed a profound understanding of the aging process, fueling her skillset in crafting comprehensive, multi-modality treatment solutions that align seamlessly with patients' aesthetic objectives. While patient care remains a priority, Siemens's focus has transitioned towards nurturing industry professionals in the field of medical aesthetics. Her dedication lies in arming them with the tools necessary to elevate patient outcomes, ensure safety, and foster income growth.