Texas doctors and other healthcare professionals are subject to various laws and rules developed by the Texas Medical Board (TMB), including those that relate to delegation and supervision in certain medical business models, including medical spas and IV hydration clinics. Failure to follow these laws can result in disciplinary action against doctors and other healthcare providers. Disciplinary proceedings can sometimes lead to significant penalties, including losing your license. When facing adverse consequences due to a disciplinary proceeding before your licensing board, you likely need the advice and counsel of an experienced medical license defense attorney.
Changes to Delegation and Supervision-Related Rules
The TMB recently made changes to the rules concerning delegation and supervision. These changes particularly affect medical spas and IV hydration clinics. The TMB consolidated all rules related to delegation and supervision into Chapter 169 of the Texas Administrative Code. This change makes it easier for physicians to find and review these rules when needed.
Next, the revised rules clarify physician delegation requirements, including the following:
- Required documentation of all delegation through:
- Written standing delegation orders;
- Standing medical orders;
- Protocols; or
- Prescriptive authority agreements;
- Delegation documents must be signed by the delegating physician and include:
- Specific instructions and procedures;
- Required supervision levels; and
- Plans for addressing patient emergencies.
Furthermore, the revised rules provide that a physician, physician assistant (PA), or advanced practice registered nurse (APRN) must either be available onsite or for “emergency consultation in the event of an adverse outcome.” However, even if a PA or APRN is available for an emergency consultation, the supervising physician must still be available for emergency consultation.
The supervising physician also must be trained or familiar with and able to perform the delegated medical act according to the relevant standard of care. The physician also must ensure that the person administering the medical treatments has appropriate training concerning:
- Techniques for the delegated act including pre-procedural care, post-procedural care, and infectious disease control;
- Contraindications for the delegated act; and
- Recognition and acute management of potential complications.
Previously, this requirement only applied to medical spas, but it now applies to all delegated medical acts, including those performed at IV hydration clinics, including the following:
- Nonsurgical medical cosmetic procedures, including but not limited to the injection of medication or substances for cosmetic purposes, the administration of colonic irrigations, and the use of a prescription medical device for cosmetic purposes; and
- Using a device to administer for human consumption a nonprescription drug, dangerous drug, or controlled substance.
Furthermore, every individual performing a delegated act must be readily identifiable by a name tag or similar means that clearly identifies their identity and credentials.
The expansion of these transparency requirements acknowledges that the services provided at IV hydration clinics are medical procedures or treatments. Therefore, a Texas-licensed physician must administer the medical acts or properly delegate the acts to PAs or APRNs under the physician’s supervision.
Medical Spas and IV Hydration Clinics
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The TMB established new rules – Rule 169.28 and Rule 164.3 – to increase transparency requirements for medical spas and IV hydration clinics. Rule 169.28 requires that any individuals, facilities, or business providing delegated acts must post the following information in each public area and treatment room:
- Notice of how to file a complaint with the TMB; and
- The name(s) of the delegating physician(s), including their Texas medical license number.
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Rule 164.3 prohibits false, deceptive, or misleading advertising concerning the practice of medicine, professional credentials, and qualifications. The rule refers to prohibited acts outlined in Tex. Occ. Code §101.201, and includes the following as examples of false, deceptive, or misleading advertising by medical providers:
- Using the terms “board eligible,” “board qualified,” or any similar language calculated to convey the same meaning as “board certified;”
- Offering a permanent cure for an incurable disease, sickness, and/or illness;
- Providing a testimonial without:
- A disclaimer or warning as to the credentials of the person making the testimonial; and
- Disclosure of compensation provided in exchange for the testimonial;
- Failing to explicitly identify individuals as models or actors instead of actual patients;
- Providing untruthful or deceptive claims regarding costs and fees, including claims of free service if a third party is billed;
- Claiming a unique or exclusive skill without substantiation and basis for such claim;
- Failing to disclose that the advertisement, article, or infomercial is a “paid for” presentation; or
- Failing to disclose medical directorship, supervision of, or delegation to non-physicians at a location that is not the physician’s primary practice location and where care is delivered under standing orders and protocols.
Get the Advice You Need About Your Medical License
Alleged violations of TMB delegation and supervision rules can lead to the potential loss of your career. When you are facing this situation, you cannot risk navigating this complex situation alone. The medical license defense lawyers at Bertolino LLP help professionals like you defend themselves against disciplinary proceedings by their licensing boards. We can examine your circumstances and help you devise the most effective strategy to protect your license. Call us today at (512) 980-3751 or get more information about us online.
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