No More Back-Alley Botox: How the Texas Medical Board is Cleaning Up Cosmetic Procedures

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Welcome back to Know your Regulator, the podcast that inspires you to engage. I am your host, simone Murphree, and co-hosting with me today is Melissa Hooper Howdy.

Speaker 2: 0:24

Today we are going to cover a very important topic. This one covers a wide range of professionals across Texas. The Texas Medical Board, or commonly referred to as TMB, has made significant changes to the rules governing non-surgical cosmetic procedures, including Botox and other aesthetic treatments.

Speaker 1: 0:49

Joining us. To break it all down, is Tony Bertolino, managing partner at the Bertolino Law Firm. Tony, thanks for joining us.

Speaker 3: 0:57

Well, thank you. Thank you for having me. You guys, I’m, you know, happy I’m brought back on again. I’ve done several of these podcasts with you. I’ve always enjoyed them and I’m really looking forward to covering a very important topic and helping our listeners out there. This is going to be an interesting topic to cover.

Speaker 1: 1:18

I think so. So let’s get started with the basics, tony, the Texas Medical Board recently reorganized and clarified its regulations around non-surgical medical cosmetic procedures. Can you talk to us about some of these key changes?

Speaker 3: 1:34

Absolutely. You know, and you know the way you address that as key changes. I think that a lot of what these, this new law, really does is it really hasn’t changed a whole lot. What it’s done is it has offered some clarification and, more importantly, reorganizing these laws to make it simpler to understand and, of course, helping people, you know, making sure that they’re in more compliance with Texas law. But what really what this law has done and it took effect in January of this year is that it ultimately repealed the old rule, the Section 193.17, where the rule, the law, addressed the what’s called other delegated acts. And now these new rules and new law that’s in place again has offered some structure to the old law and has reorganized it in a sense. So really, what’s happened in these changes is and then what I want to do is go down the line, addressing each section one by one for the listeners out there to help them understand what that current law is versus section 169.25.

Speaker 3: 2:51

And that new provision says that non-surgical medical cosmetic procedures, such as Botox and fillers, is considered the practice of medicine and therefore must be properly delegated and supervised. So it’s clarifying again what those cosmetic procedures are. And then the next section 169.26,. Under that new rule, what the physicians must ensure is that the licensees that they delegate to you know whether they’re nurses or advanced nurse practitioners or physician assistants. They need to have the proper training and there is also the necessity of having a signed written protocol, sort of directions or rules on what needs to be followed as to these cosmetic procedures Also under that section. Under that new rule, the physicians must also be trained in the procedures that they delegate to. For example, you can’t have a pediatrician delegating these procedures. It’s got to be someone a physician who is actually trained in that procedure him or herself.

Speaker 3: 4:01

Of course, under section 169.26, before a procedure can be delegated, a physician assistant or PA or an advanced practice registered nurse must actually do five things under that section. The first thing is that there must be an established practitioner and patient relationship. The second thing is there must be a maintaining and a creation of the medical records for that particular patient. There’s also a necessity to disclose the identity of the professionals who will be performing these delegated acts, and also they have a duty to disclose their credentials, whether they’re a nurse or a physician’s assistant. And of course, finally, they have to make sure that at least one person with basic life support training is available on site in case there’s any kind of emergency while performing these kinds of procedures. Under that same section 169.26, it also addresses the supervision that is, that the physician, the PA or the advanced practicing registered nurse must be on site now or immediately be available for emergency consultations in case those emergencies do arise, and then the physician must be able to also be available to conduct an emergency appointment if necessary.

Speaker 3: 5:27

Next section that has that has also changed the laws is 169.27. And that one addresses the responsibilities of a delegating physician to develop written treatment orders, or they must review and approve any existing treatment orders, and that includes any medical orders that are in place. And then, finally, 169.28 is the law, the new rule that requires that the names of the delegating physicians and the mandatory complaint notifications must be posted in public areas, of course, these complaint notifications you may have seen these. For example, when you go to your you know your local pharmacy, you see these complaint notices and frames up on the walls where it you know lists the address and the phone numbers where you can file your complaints against people who are in these offices. Also, all the persons who perform delegated medical acts must now have name tags that identify not just their name but also what specific license they possess and what their credentials may be. So that’s another important change as well as part of Section 169.

Speaker 2: 6:42

Wow, that does sound like a lot of changes. Thank you, tony. What do you think the driving force is behind these changes?

Speaker 3: 6:50

Well, you know the changes that came about, you know, really come from an effort, an overall effort, to improve oversight and patient safety. You know, that’s really the biggest factor. And that actually brings me to you know a recent case that came about that you know the viewers may be aware of in the media, which is this increased scrutiny of what’s called these Botox parties. One particular case is actually happened in a city north of Austin called Dublin, texas, in which a lady went into a facility and she was given, or received, a Botox procedure for her lips it’s called a lip flip, I believe and apparently it was done by an alleged unlicensed practitioner and, as a result, she suffered a severe reaction to the Botox and she actually began vomiting and she went into seizures and it, you know, ems had to be called and she was.

Speaker 3: 7:57

I mean, it became a true emergency and of course, under the new rules, you’ve got a doctor that’s supposed to be on site, or at least someone you know that’s available on site that can provide these kinds of medical emergency procedures. But in this case there was a delegating pediatrician almost 200 miles away in Tyler, texas. So these are the kinds of things you know local, I mean media is really picking up on these stories now, which is making this, this area, very, very topical. So, at the end of the day, the Texas Medical Board wants to ensure that only properly trained professionals are performing these procedures and it’s very likely that, as a result of this case up in Dublin, texas, that this practitioner may be prosecuted for a felony Third degree felony, I believe, is what it is for that. So not only that, but you also there’s a possibility of the attorney general’s office imposing civil kind of penalties, let alone the fact, again, they could be facing, you know, criminal charges. So overall, it really has a lot to do with the safety of the public, the safety of patients.

Speaker 1: 9:12

Yeah, and that makes a lot of sense. I mean, like you said, from that story it sounds like you know that safety was not prioritized there at all, and so I think that’s you know really good. I’m glad that we’re kind of looking at these, that the Texas Medical Board is looking at these issues and doing what they can to protect the public. Now we know that these rule changes don’t just affect doctors. They have many implications for other professionals. Who else needs to be paying attention to this?

Speaker 3: 9:49

You know it’s really widespread. I mean it’s really, you know, of course I’ll get into more specifics in a moment but it’s really, you know, anybody who thinks that they could sort of have these back alley kind of Botox parties, whether you’re a licensed professional or not. I mean that’s just improper and unlawful. But, more specifically, it seems like the ones you know, the professionals that should be paying attention, of course are the physicians. The professionals that should be paying attention, of course are the physicians and the physician assistants and these advanced practice registered nurses who are in the job of delegating these procedures. I mean, at the end of the day, they’re going to be on the hook for if they’re not complying with current laws. Of course, another sector of professionals that should be concerned and paying close attention are nurses and other medical professionals who are working in these med spots, and you know they’re certainly going to have to comply with the new laws and make the proper changes and making sure the proper protocols are in place to ensure compliance with these TMB rules. And then, of course, you’ve got, you know, these estheticians and cosmetologists and others who may have previously offered cosmetic treatments without direct physician oversight, and they’re going to certainly need to make sure they’re in compliance with the new laws, because you know you’ve got issues of not just the Texas Medical Board coming down on you in the form of a possible cease and desist letter, but these estheticians and cosmetologists could ultimately be facing board complaints from their own applicable board, like the Texas Department of Licensing and Regulations that regulate these particular types of license holders. So those are specific, you know, professionals that should be paying attention, but really, as I mentioned before, overall you know it’s really anybody and everybody who believes that they’re, you know they’re going to be able to inject, you know, botox and fillers in patients and when they’re, you know just unlawfully doing so and and and really have, you know, little or no compliance with with the laws.

Speaker 2: 12:02

Okay. So to recap, if you’re a medical professional working in aesthetics, what does this mean for their day-to-day practice? Tony?

Speaker 3: 12:11

Well, I think what’ll need to happen and, of course, what the change is is making sure that proper protocols are followed and updated and also ensuring that there’s proper supervision made by a supervising professional, whether it be a physician, you know, an advanced nurse practitioner or a physician’s assistant. In addition, there’s also the need that you know these facilities out there, these spas, these medical facilities. They must now display proper physician information, as I mentioned before. You know it’s all about. You know the new transparency really is what this is and making sure that these you know these physicians are properly identified to the patient. And then, of course, the written orders and emergency plans must be in place as part of these delegated procedures as well.

Speaker 3: 13:15

I mean, you’ve got to, you know, follow written orders and have them documented, which is one of the you know, the big key things that the Texas Medical Board is trying to correct is making sure that everything is in proper writing and, of course, signed off by the physician as needed. You know, if you are, you know, an esthetician or a cosmetologist or someone working in these kinds of fields and you operate a med spa or a facility like this, you know, you’ve got to be aware that if you’re operating in these sort of gray areas. You know, now it’s no longer gray with these clarifications that are that are made, or this reorganization, as I talked about earlier, has been made. You know it’s now clear. The law is somewhat unambiguous now, and now it’s time to make sure that you’re in compliant with the laws and the rules, and you know there really isn’t going to be any excuses if you’re not.

Speaker 2: 14:17

Well, thank you for that clarification, Tony. Now that we have a better understanding of these changes, let’s talk about action steps. What should a licensed professional do to stay compliant?

Speaker 3: 14:31

in these updated Texas Medical Board rules. You know and there’s, you know, certainly going straight to the Texas Medical Board website itself you know it’ll provide a lot of updates to these rules. You know there’s different resources online that you know can better educate you. You know the other thing that is important to be in compliance, particularly if you’re a physician. You know making sure that you know you’re properly delegating this, you know these procedures and or delegating to the proper licensed professionals that are experienced and that you do have, you know, have proper protocols in place. If you’re the actual provider who’s performing these procedures, you need to, of course, confirm that you’re being properly supervised by a physician because, again, that physician oversight is really key to these rules that there’s a need to have a supervising professional overseeing these procedures and then, of course, the you know the requirement now that these clinics should update their signage and, of course, their patient notifications that need to be posted at these facilities as well. All of that needs to be updated.

Speaker 1: 16:01

Are there penalties for noncompliance. I think that those are all things that license holders should absolutely or even you know, like you said, those estheticians, cosmetologists they definitely need to be aware of. You know what happens if a provider is caught violating these rules.

Speaker 3: 16:20

Mm-hmm. Well, the medical board, the Texas Medical Board and a lot of people are not aware of this, but the Texas Medical Board has jurisdiction over folks that violate the law, particularly if you’re unlicensed to practice, and this vast jurisdiction really applies to everybody and anybody who violates the law and they’re practicing medicine without a license. So it really doesn’t matter. You know who you are. You don’t have to necessarily be a physician to be under investigation by the Texas Medical Board and as part of the penalties for noncompliance, specifically, the medical board can issue fines, they can suspend a license holder or even revoke a license if you happen to have a license with the board. As to the unlicensed practitioner, those individuals will very likely receive a cease and desist letter from the Texas Medical Board. And, again, as I said earlier, the Texas Medical Board has jurisdiction to step in and issue these cease and desist, even if you happen to not be a licensed physician. And another thing that could also happen as a result is that the medical board can not only send a cease and desist letter out to you telling you hey, stop the behavior. You’re not authorized to practice medicine without a license, you’re not authorized to be injecting patients with Botox and fillers. And in doing so, what they could also do is refer the matter to a local law enforcement or a district attorney’s office for possible prosecution for felony of an unlicensed practice of medicine.

Speaker 3: 18:07

You know, if you’re not already aware, you know it is a third degree felony if you are practicing medicine without a license.

Speaker 3: 18:17

So it’s of course it’s under the discretion of the local DAs to bring charges if it gets to that point, which is, as I mentioned before, these penalties that are imposed against these, uh, these folks that are violating the current rules and laws. You know, one of the things to avoid this kind of thing is really to, you know, as needed, consult with attorney, um, if you have issues, um, with compliance, or you’re just not sure of what the law is, or if your practice you know, your new practice is trying to, you know, go through the long laundry list of the laws that you have to comply with. Sometimes it requires the interpretation and counsel by an attorney. You know, to avoid all of these penalties for noncompliance, I mean, you, you know, if you’re in a position to invest a short amount of money at the front end to avoid all these headaches on the back end, it’s probably going to be the best for you if you’re you know, if you’re a practitioner, interested in going into this field.

Speaker 2: 19:35

So any final advice for professionals navigating these type of changes, Tony?

Speaker 3: 19:41

First is stay informed, Understand what the laws and the rules are.

Speaker 3: 19:47

If you are going through ChatGPT or you’re Google searching these rules and laws, you know, make sure double make sure that you’re you know you’re following the right rules and you’re understanding what you’re reading, and you know there’s a lot of misinformation out there.

Speaker 3: 20:05

I would suggest that as part of staying informed and following the rules is that you go to the Texas Medical Board website.

Speaker 3: 20:12

It’s got a lot of really good resources to help you really understand what the the current laws and rules are. And, of course, if you’re still unsure about compliance and understanding these new rules, as I mentioned before, consult an attorney and make sure that that attorney is also well-versed and understands what current laws are. You know, don’t you know? Make sure you hire a proper lawyer who’s experienced in these areas and understand the changes. You know, at the end of the day, these changes are really meant to protect the public, to protect patients, but they also, you know, serve as a warning and to not to cut corners, and the Texas Medical Board is certainly watching out for that kind of thing. They’re cracking down now more than ever and, as these new news stories blossom, Texas Medical Board is going to, you know, become more and more aggressive, you know, with these kinds of matters and, as I said, really they’re looking to protect the patients, protect the public from being harmed.

Speaker 2: 21:22

That’s great advice. Thank you very much for your time and breaking all this down for us today, Tony.

Speaker 1: 21:29

Yes. Thank you so much, tony, for carving some time out of your schedule to join us on Know your Regulator again and to our viewers. If you would like to learn more about this topic and this change, you can check out the Texas Medical Board’s website at tmbstatetxus. Be sure to subscribe and follow Know your Regulator as we continue to follow changes in your professional landscape. Until next time, stay inspired and continue engaging with your regulatory agency. Know your Regulator the podcast that inspires you to engage.