Top Legal Mistakes Made by Med Spas in Texas

Med spas are booming across Texas, offering a fusion of medical care and aesthetic services. But with that growth comes increased scrutiny from regulators, particularly the Texas Medical Board (TMB). Med spas that fail to operate within the strict framework of Texas law risk investigations, fines, license suspensions, or even criminal liability. Here are the top legal mistakes made by med spas and how to avoid them.

Improper Ownership Structure

Mistake: Physicians and non-physicians jointly owning a med spa.

Why It's a Problem: Texas prohibits the corporate practice of medicine. Meaning, a spa must be owned either by a physician or a non-physician (or non-physician group). There cannot be joint ownership.

Fix: In a non-physician ownership structure, the spa must have a physician medical director. This can be accomplished via an independent contractor arrangement with adequate oversight procedures and delegations in place

No Good Faith Exam Before Treatment

Mistake: Performing Botox, fillers, or other medical treatments without a prior face-to-face examination.

Why It's a Problem: Texas law requires a proper good faith examination (GFE) by a qualified medical provider before initiating any medical treatment. This includes injectables and laser treatments.

Fix: Ensure a physician, nurse practitioner (NP), or physician assistant (PA) conducts and documents a GFE before any medical treatment. This can be in person or via telemedicine but must meet all TMB standards for such.

Inadequate Medical Supervision

Mistake: Nurses, estheticians, or medical assistants performing medical procedures without oversight.

Why It's a Problem: Only providers may perform medical treatments, and even then, only under appropriate physician supervision. Delegation must follow strict guidelines.

Fix: Clearly document supervision protocols. Ensure physicians regularly review charts, supervise staff, and are readily available for consultation.

Misclassifying Staff as Independent Contractors

Mistake: Treating injectors or estheticians as 1099 independent contractors when they function like employees.

Why It's a Problem: Misclassification can trigger audits, penalties, and back taxes from the IRS and Texas Workforce Commission.

Fix: Evaluate roles using IRS guidelines. If the business controls how, when, and where services are performed, the worker is likely an employee and should be paid and taxed accordingly.

Illegal Advertising and Influencer Promotions

Mistake: Advertising “discounts,” “deals,” or using influencers to promote treatments without proper disclosures.

Why It's a Problem: The Texas Medical Board and Federal Trade Commission (FTC) prohibit false or misleading medical advertising and require full disclosure of financial relationships with influencers.

Fix: Avoid claims of guaranteed results. Ensure influencer agreements are documented and that all posts include proper disclosures such as #ad or #sponsored.

Poor Recordkeeping

Mistake: Incomplete or missing medical records, especially for aesthetic procedures.

Why It's a Problem: Texas law requires full documentation of patient charts, treatment plans, consent forms, and follow-ups. Inadequate records can lead to TMB complaints or legal liability.

Fix: Use electronic medical record (EMR) systems that support full documentation. Keep records for the required retention period (usually 7 years for adults in Texas).

Failure to Use Proper Consent Forms

Mistake: Performing procedures without signed, procedure-specific informed consent forms.

Why It's a Problem: Consent is not just a best practice, it is legally required for medical procedures. If something goes wrong, lack of consent can make liability much worse.

Fix: Use detailed consent forms for each treatment, covering risks, benefits, alternatives, and post-care instructions. Keep signed copies in the patient chart.

No Written Delegation Protocols

Mistake: Delegating tasks to staff without formal delegation protocols or physician standing orders.

Why It's a Problem: Delegation must be documented under Texas law. Without written protocols, treatments performed by non-physician staff may be deemed unauthorized practice.

Fix: Have the physician create standing delegation orders and approve proper protocols for all medical procedures delegated to non-physician staff. Review and update them regularly.

Noncompliance with Telemedicine Standards

Mistake: Relying on remote providers who do not follow Texas telemedicine rules.

Why It's a Problem: The TMB enforces specific rules for telemedicine, including required technology, licensure, and documentation.

Fix: Ensure all telemedicine providers are licensed in Texas and follow TMB guidelines for telemedicine evaluations, including proper video technology and recordkeeping.

Ignoring HIPAA and Privacy Laws

Mistake: Sharing patient photos or testimonials on social media without HIPAA-compliant authorization.

Why It's a Problem: HIPAA violations can lead to large fines, even if unintentional.

Fix: Always obtain a written, specific authorization from the patient before sharing any identifiable information or images. Store these authorizations with the medical record.

Conclusion on Top Legal Mistakes Made by Med Spas in Texas

Texas med spas must walk a fine line between medical and cosmetic services. By avoiding these common legal mistakes, med spa owners can protect their licenses, their businesses, and their patients. And always consult with legal counsel familiar with Texas healthcare regulations to ensure your compliance practices are up to date.

Feel free to reach out if you need more specific information or further clarification.

Weitz Morgan is a leading law firm in Texas in providing comprehensive advice and guidance to med spas. With a deep understanding of the unique challenges and complexities faced by this rapidly growing industry, our team of experienced attorneys is dedicated to helping med spas navigate the legal landscape successfully.

We recognize that med spas operate at the intersection of healthcare and beauty, which necessitates a multifaceted approach to representation. Our firm offers a range of services, including a flat-fee med spa formation package and an outside general counsel subscription, tailored to meet the specific needs of med spas, ensuring compliance, mitigating risks, protecting licenses, and fostering a legally sound business environment.