Jennifer’s Law: Texas’ new IV Med Spa statute

Martin Merritt, Esq.

On Sept. 1, “Jennifer’s Law” will take effect under Tex. Occ. Code 172.001, which provides additional requirements for qualifications, physician supervision and delegation of prescriptive authority in the delivery of IV therapy in Texas.

In 2023, Jenifer Cleveland died during an IV procedure at Luxe Med Spa in Wortham, Texas. In a MedSpa, some treatments are considered “medical” procedures and thus constitute “the unauthorized practice of medicine” (a felony) if not performed under proper Medical supervision.

Generally, medical procedures in Texas may only be performed after a physician (or mid-level under a physician’s supervision) establishes a provider-patient relationship, performs a good-faith exam, including a history, then clears the patient for treatment through written orders.

It is only after the patient has been medically cleared, that the physician or mid-level is allowed to delegate the performance of certain acts to a “qualified person.”Texas law is fairly deferential to the physician’s judgement, as to what constitutes a “qualified” person. But the Texas Medical Board will hold the physician accountable for any delegated act.

Texas is also a “corporate practice of medicine state,” which means only a physician or certain mid-levels can own a medical practice.This has led to the bifurcation of the ownership of the“professional” from the ownership of the MSO which provides the managerial or administrative activities.

Unfortunately, MedSpas frequently do not follow any of these rules, opting instead for a single layperson owner, with no medical training, who then pays a “medical director” a small monthly fee for doing practically nothing. (The title “medical director” is practically meaningless in Texas in a MedSpa context.)

Jennifer’s Law makes clear that in MedSpa IV therapy settings (the rule doesn’t apply to doctor’s clinics or hospital settings):

• Elective IV therapy sessions are considered “medical” procedureswhich must be ordered or prescribed by a physician, PA, or APRN under a valid prescriptive authority agreement and adequate physician supervision.
• Delegation to a “qualified person” is limited to RNs and higher (only physicians, PAs, APRNs, or RNs may administer elective IV therapy), and only under adequate physician supervision.
• Supervising physicians are responsible for ensuring that all delegated providers are properly qualified and that protocols and standard operating procedures are in place.

This, in addition to existing corporate practice of medicine requirements as to ownership and structure of a MedSpa.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.