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F I S C A L I M P A C T R E P O R T

SPONSOR Gutierrez

ORIGINAL DATE

LAST UPDATED

02/21/07

02/26/07 HB 964/aHHGAC

SHORT TITLE Physician Supervision in Medical Spas

SB

ANALYST Geisler

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

.01,

minimal,

see narrative

Non-

Reccuring General

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Health (DOH)

Attorney General (AG)

Medical Board (NMMB)

Regulation and Licensing Department (RLD)

SUMMARY

Synopsis of HHGAC Amendments

The House Health and Government Affairs Committee amendments to House Bill 964:

1.

Strikes the requirement that medical spas shall have on-site during all business hours and

available for consultation a physician who is board-certified in either dermatology or plastic

surgery and replaces it with the requirement that they have a supervising physician.

2.

Replace the Department of Health with the Medical Board as the agency which shall

promulgate rules necessary to implement the provisions of this section, including specific

provisions setting forth those facilities that fall within the definition of medical spa.

Synopsis of Original Bill

House Bill 964 requires facilities offering medical procedures for aesthetic or cosmetic purposes

including skin treatments using applications of lasers, intense pulsed light or radio frequencies;

deep skin peels; and subcutaneous injections of substances, including botox and tissue fillers to

House Bill 964/aHHGAC – Page

2

have a physician who is board-certified in either dermatology or plastic surgery on-site during all

business hours and available for consultation.

The bill requires the Department of Health to promulgate rules necessary to implement the

provisions of this section, including specific provisions setting forth those facilities that fall

within the definition of medical spa.

The bill authorizes the Attorney General to bring actions under the new law, and allows the court

to impose a civil penalty of up to $1000/day for every day the facility operates in violation of the

law, not to exceed $25,000.

FISCAL IMPLICATIONS

DOH notes that funding to implement the provisions of this legislation is not including in the

bill, or in the executive budget request for DOH. However, the department did not provide an

operating budget impact.

SIGNIFICANT ISSUES

The NM Medical Board provides

:

Medical spas are an area of major growth in the personal health care arena, and they have been a

concern for the Medical Board for some time now. Many states have very detailed rules

regarding training, certification, licensure and allowable procedures; until recently, New Mexico

had next to no regulation in this area.

There are medical spas run by Certified Nurse Practitioners and dentists – and both of these

license types have a regulatory board responsible for oversight of their training and quality of

care. The Medical Board would defer analysis of the impact HB 964 would have on these other

providers types to their respective boards.

The focus of the Medical Board’s concern has been the large number of unlicensed individuals

who are setting themselves up in the medical spa business, with no licensed MD, PA, CNP or

DDS involved, and therefore practicing medicine without a license and without appropriate

supervision or oversight. The public is very confused about the difference between licensure and

certification, as are many providers – the Medical Board receives virtually daily calls from

individuals who have completed a course of training and received some sort of certification, and

who think that they are now “licensed" to perform the types of treatment specified in HB 964.

As a result of these concerns, the Medical Board adopted a strengthened rule 16.10.13, Delegated

Use of Devices and Procedures by Medical Assistants; Cosmetic Injections. This rule establishes

specific training requirements for medical assistants who are unlicensed, and specific

responsibilities for the physicians who supervise them. The rule also clearly draws the line

between those procedures that can be delegated and those that cannot: the injection of cosmetic

or aesthetic substances is considered the practice of medicine and cannot be delegated to medical

assistants.

HB 964 is a much broader response to the problem, requiring on-site supervision of a physician

board-certified in either dermatology or plastic surgery for all medical spas. The bill does define

House Bill 964/aHHGAC – Page

3

the types of procedures offered at medical spas much the same way that the Medical Board’s rule

does, but then tasks the Department of Health with promulgating relevant rules for licensees

governed by the Medical Board, the Board of Nursing, and RLD.

In short, HB 964 seeks to address a serious matter – there are many unregulated “medical spas"

opening up around the state, and the current regulatory environment is almost purely “buyer

beware," in a context where consumers and providers both lack basic information. The Medical

Board agrees that the issue needs careful – and timely – consideration, but it also needs a more

carefully-crafted and comprehensive approach. One option might be to amend HB 964 so that it

requires that all individuals who provide services within medical spas are appropriately trained,

licensed, and supervised, and then task the Medical Board, the Board of Nursing, and the

Regulation and Licensing Department to work together to promulgate appropriate rules. The

boards could then develop a coordinated plan to address which specific functions and procedures

require what specific training and licensure.

ADMINISTRATIVE IMPLICATIONS

If enacted, Section 1C in HB964 would require DOH to employ personnel to promulgate rules

necessary to implement HB964. In addition, DOH would be required to distinguish through rule

those facilities that fall either within or out of the definition of medical spa which would

ultimately include additional program development for surveying and monitoring. The AG notes

that the bill appears to require the Attorney General to bring actions to enforce its provisions.

This will require additional staff time for that litigation.

CONFLICT

DOH provides that if enacted, HB 964 would be in conflict with the Medical Practice Act, §§61-

6-1 through 61-6-35 NMSA 1978, and implementing rule 16.10.13 NMAC, Delegated Use of

Devices and Procedures by Medical Assistants; Cosmetic Injections. These existing rules of

practice and procedure under 16.10.13 NMAC govern the use of medical devices and procedures

by unlicensed medical assistants under the supervision of a physician in New Mexico. While not

entirely encompassing, the New Mexico Medical Broad has regulatory authority, through statute

and rule, to address physician supervision and the cosmetic medical procedures permitted.

Additionally, if enacted Section 1C authorizes DOH to promulgate rules necessary to implement

HB964, however agency jurisdiction is with the New Mexico Medical Board.

OTHER SUBSTANTIVE ISSUES

The Medical Board provides:

Regarding the role of the Office of Attorney General and the fines established by HB 964, the

Medical Board defers to the OAG. The board notes, however, that the Medical Practice Act

categorizes the practice of medicine without a license as a fourth degree felony, and the Medical

Board currently handles these cases by requesting that the court issue a cease and desist order,

and then referring the case to the District Attorney’s office for possible prosecution.

ALTERNATIVES

Amend the bill to involve appropriate agencies, and task them with developing a coordinated

approach to regulation and licensing of medical spas and the providers who work at them.

House Bill 964/aHHGAC – Page

4

AMENDMENTS

The Medical Board suggests:

Page 1, line 25: strike “a physician who" and insert “an appropriately trained and licensed health

care provider." On Page 2, line 2: strike “department of health shall promulgate" and insert

“medical board, board of nursing and the regulation and licensing department shall collaborate

on the development and promulgation of"

GG/mt