The Texas medical spa industry — a rapidly growing sector blending aesthetic services with traditional medical procedures — faces a transformed regulatory landscape following the passage of several pieces of legislation during the 89th Texas legislative session this year.

These bills, prompted by concerns over patient safety and medically trained professional oversight, introduce significant changes to the operational, supervisory and contractual frameworks governing med spas in Texas. For attorneys advising med spa owners, medical directors and practitioners, understanding the nuances of these laws is critical to ensuring compliance, mitigating legal risks and structuring enforceable contracts.

This article examines the provisions of H.B. 3749 and S.B. 1318, their impact on med spa operations and the contractual implications for stakeholders in Texas.

S.B. 268, which was also introduced during the 89th session, was vetoed by Gov. Greg Abbott on June 22. It would have affected the Texas Medical Board's ability to process complaints regarding individuals licensed by other professional boards.

H.B. 3749: Jenifer's Law and Elective Intravenous Therapy Regulation

H.B. 3749, dubbed Jenifer's Law, was introduced by state Rep. Angelia Orr on March 4, in response to the tragic death of Jenifer Cleveland in July 2023 at Luxe Med Spa in Wortham, Texas.

Cleveland's death following an IV infusion administered by an unlicensed individual without proper supervision highlighted gaps in med spa oversight, particularly for elective IV therapy. The bill, which passed both the Texas House of Representatives and Senate and was signed into law by Abbott on June 20, will take effect on Sept. 1.

Originally, H.B. 3749 proposed sweeping regulations for both cosmetic medical procedures and elective IV therapy, including stringent physician oversight requirements and restrictions on nonphysician providers like nurse practitioners and physician assistants.

However, following significant pushback from the medical aesthetics community, the bill was revised to focus exclusively on elective IV therapy provided outside traditional medical settings, such as physician offices, licensed healthcare facilities or hospitals.

Key Provisions of H.B. 3749

Provider Restrictions

Only registered nurses, nurse practitioners, physician assistants or physicians may administer elective IV treatments. Licensed vocational nurses, paramedics and medical assistants are prohibited from performing these procedures.

Physician Oversight

While the original bill required physicians to be immediately available on-site, the revised version aligns with existing Texas law, allowing physicians to delegate diagnosis and prescription to trained nurse practitioners and physician assistants under a prescriptive authority agreement.

Elective vs. Medical Necessity

The bill recharacterizes elective IV therapy as a wellness service rather than a medically necessary treatment, potentially reducing documentation burdens for providers by eliminating the need to establish medical necessity for each procedure.

H.B. 3749's Operational Impact

For med spas offering elective IV therapy, H.B. 3749 necessitates operational adjustments. Med spas must ensure that only registered nurses, nurse practitioners, physician assistants or physicians administer IV treatments, which may require restructuring staffing models.

Facilities relying on licensed vocational nurses, paramedics or medical assistants for IV administration must hire or train qualified personnel, increasing operational costs.

Additionally, med spas must verify that their medical directors and supervising physicians comply with delegation protocols under Texas Medical Board rules, ensuring proper training and oversight.

H.B. 3749's Contractual Implications

Med spa owners and operators should focus on the following contractual considerations.

Medical Director Agreements

Contracts with medical directors must explicitly outline responsibilities for overseeing IV therapy, including delegation protocols and compliance with Texas Medical Board rules. These agreements should specify training requirements and ensure that the medical director is actively involved in supervising nonphysician providers.

Employment and Independent Contractor Agreements

Contracts with registered nurses, nurse practitioners and physician assistants should detail their scope of practice for IV therapy, including training certifications and adherence to prescriptive authority agreements.

For med spas transitioning away from licensed vocational nurses or medical assistants, termination or retraining clauses may be necessary.

Patient Consent Forms

Consent forms must be updated to reflect that only qualified providers administer IV therapy, with clear disclosures about the elective nature of the treatment to mitigate liability risks.

Compliance Audits

Med spas should incorporate compliance audit provisions into contracts with third-party vendors or management companies to ensure adherence to H.B. 3749's requirements.

Med spa owners and operators should also monitor Texas Medical Board guidance on implementing H.B. 3749, as the board's interpretation of elective IV therapy standards may influence contractual obligations.

S.B. 1318: Reforming Noncompete Agreements for Healthcare Practitioners

S.B. 1318, also signed by Abbott on June 20, reforms noncompete agreements for physicians and certain healthcare practitioners, including nurse practitioners, physician assistants and nurses, by amending the Texas Business and Commerce Code.

The bill aims to balance practitioner mobility with employers' interests, ensuring patient access to care while protecting med spa investments in training and patient relationships.

Key Provisions of S.B. 1318

S.B. 1318 introduces the following restrictions on noncompete agreements:

• Duration and scope: Noncompetes are limited to one year and a five-mile radius from the practitioner's primary practice location.
• Buyout clause: Agreements must include a buyout option capped at the practitioner's annual salary at the time of termination.
• Expanded applicability: The bill extends protections to nurse practitioners, physician assistants and nurses, in addition to physicians, ensuring uniformity across healthcare disciplines.
• Preemption: S.B. 1318 preempts conflicting state laws, establishing a consistent standard for noncompetes in healthcare.

S.B. 1318's Operational Impact

For med spas, S.B. 1318 places limits on the duration and geographic scope of restrictive covenants, potentially increasing practitioner turnover. Med spas may face challenges retaining nurse practitioners and physician assistants, who can more easily join competing practices within a year or relocate beyond the five-mile radius.

However, the bill's buyout clause provides a mechanism for med spas to recover investments in practitioner training.

S.B. 1318's Contractual Implications 

Med spa owners and operators should consider the following contractual implications.

Noncompete Clauses

Noncompete provisions must comply with S.B. 1318's one-year duration and five-mile radius limits. Buyout clauses should be clearly defined, specifying payment terms and conditions for early termination.

Training Agreements

To protect investments in practitioner training, med spas may include repayment clauses for training costs if practitioners leave within a specified period, provided these comply with S.B. 1318's buyout cap.

Retention Strategies

Contracts may incorporate incentives, such as performance bonuses or equity stakes, to encourage practitioner loyalty without relying on overly restrictive noncompetes.

Geographic Analysis

Owners and operators should assess the med spa's location relative to competitors within the five-mile radius to evaluate the practical impact of noncompete restrictions.

Broader Implications for Med Spa Compliance and Contracting

The passage of H.B. 3749 and S.B. 1318 signals a broader trend of increased regulatory scrutiny in the Texas med spa industry. Med spa owners and operators should consider developing a multifaceted compliance strategy that addresses the following.

Staffing and Training

Med spas must invest in training registered nurses, nurse practitioners and physician assistants to meet H.B. 3749's requirements for IV therapy and ensure compliance with Texas Medical Board delegation rules.

Contractual Restructuring

Employment, medical director and vendor contracts must be updated to reflect new regulatory standards, including supervision protocols, compliance obligations and S.B. 1318-compliant noncompete terms.

Risk Management

Med spas should implement robust compliance programs, including regular audits and documentation systems, to mitigate risks of Texas Medical Board investigations and legal challenges related to noncompetes under S.B. 1318.

Patient Safety Communications

Consent forms and marketing materials should emphasize compliance with H.B. 3749's provider requirements and the elective nature of IV therapy to enhance transparency and reduce liability.

Conclusion

H.B. 3749 and S.B. 1318 mark a pivotal shift in the regulatory framework for Texas med spas, driven by a commitment to patient safety and professional accountability.

While H.B. 3749 focuses on elective IV therapy and S.B. 1318 enhances practitioner mobility, collectively, these laws require med spas to adapt their entire operations and contractual practices. By proactively addressing these changes, med spas can maintain operational efficiency, ensure patient safety and thrive in a competitive market.

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