By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
So as not to bury the lead, Texas has a new law for IV Drip Bars that takes effect this Monday, September 1, 2025 and requires “elective” IV infusion outside of a doctor’s office or a licensed institution to be administered by at least a registered nurse, following a good faith exam and medical clearance by at least a mid-level, who has a delegation and supervision agreement with a medical doctor or doctor of osteopathy who is licensed in Texas and who exercises proper supervision.
The new statute is to be located in Tex. Occ. Code 172.001 (good luck finding it using Google, which told me “Texas Occupations Code §172.001 does not exist, and there is no Chapter 172 in the Texas Occupations Code.”
Then, adding insult to injury, the patronizing little shit told me, “the user may be confusing it with one of the following statutes concerning arbitration or political subdivisions . . .” But I know better than to trust AI (unless it is right). So, what the heck is this all about?
200 Years of Texas Medical Practice in 500 words or less. Originally, doctors in Texas were simply townsfolk who decided to hang out a shingle and practice medicine; often in exchange for chickens and farm produce. The first licenses were issued by the Republic of Texas’ “Medical Board of Censors,” starting in 1837. But it wasn’t until 1891, that the first medical school in Texas graduated its first class in Galveston.
Not that the delay in education mattered all that much. It took a while for people to trust doctors, hospitals and institutions, because we didn’t know what “germs” were. People were born at home and died at home, because people didn’t get as sick at home as they did at hospitals.
Medical science progressed rapidly, once we figured out what “pathogens” are, and more particularly, what kills them. We first began cleaning up surfaces in institutions (see Joseph Lister, the “Listerine” guy). Then Alexander Fleming noticed bread mold (penicillin) killed germs in both petri dishes and inside people.
Pretty soon, doctors were working miracles and defeating all kinds of diseases. People began trusting hospitals and doctors. There wasn’t as much to fear about a hospital or a doctor’s office, as in-home outcomes were no longer better than medical facilities. And doctors were the “heroes” of the hour. What could possibly go wrong?
“The dream failed to take power into account.” And so it was, the AMA and the Texas Medical Board (founded in 1907) were “living the dream” and enjoyed complete sovereignty over the practice of medicine.
Politicians were scared of the power of the AMA, so much so, they wouldn’t do anything to upset doctors. That is, until Medicare came along in 1965, and for doctors, sovereignty went to hell in a handbasket. (Any time you hear “government promise,” remember two words, “monkey’s paw.”) Here’s why. . . .
Paul Starr’s 1982 The Social Transformation of American Medicine, begins with one of the greatest opening lines of any book ever to win the Pulitzer Prize on the subject of American Medicine. (Okay, I looked it up, there are only eight books that qualify, so it’s not quite the brag I thought it was.)
“The dream failed to take power into account,” simply put, means that doctors thought they could accept government Medicare money and the government would leave doctors alone, because the government isn’t qualified to tell doctors what to do.
Where did doctors get this crazy idea? Because that is what the government statutorily promised doctors in the very first section of the 1965 Medicare law. Here, look:
42 USC §1395. “Prohibition against any Federal interference.” Nothing in this subchapter [Medicare] shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services. . .”
It isn’t that the AMA didn’t warn doctors of this “monkeys paw.” Ronald Reagan Speaks Out Against Socialized Medicine, is an AMA produced album, part of “Operation Teacup” (it’s in Wikipedia) that warns doctors that every aspect of communism will be imported through Medicare regulations. It sounded a bit melodramatically silly, but you can’t say they weren’t warned.
But, “on the other hand, money,” doctors said. “Besides, the government wouldn’t lie to us, they love us,” they said. “There would be hell to pay if Medicare officials crossed the AMA,” others said.
But, there was so much money flying around, with no consequences, that the AMA appeared ridiculous, and membership plummeted (from 75% in 1950 to 15% in the 2000’s). And that’s when the trap was sprung. The government began passing rules (like a monkey stealing your French fries, a few at first. Then, more.) Then all hell broke loose with Stark law and HHS OIG agents who began showing up to work wearing badges and guns like the FBI.
Finding that they could get away with it, CMS began stomping all over the “promise of federal non-interference.” They wrote so many rules, the Fourth Circuit described it this way in Rehab. Ass’n v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994) “Medicare and Medicaid statutes and rules are among the most completely impenetrable texts within human experience.”
All this regulation by the federal government led physicians, mid-level nurse practitioners and physicians assistants to hope to find another dream, a way to earn a living without accepting any insurance (Medicare is a kind of health insurance, just like private Blue Cross and United Healthcare, all of whom follow CMS rules.)
Then, as if by magic, smartphones developed cameras which face the user and “poof,” everybody is starring in their own movie (and they need to look good). MedSpas, IV Bars and all sorts of cash-only shops (a mash-up between medical practices and cosmetic beauty shops) began popping up, with little regulation as to precisely where “medical practice begins” when a customer plops down in a chair and says, “make me pretty.”
Pretty soon, IV Drip bars began advertising “bridal” packages, as a perk for bridesmaids, as much a part of the ritual as circus-tent taffeta gowns and bottomless mimosas.
In 2023, one such customer, Jennifer Cleveland, walked into a Med Spa in Fairfield, Texas, and received IV electrolytes without a medical exam, or medical clearance (probably without any real medical necessity), which was administered by an unlicensed person. There was also no plan for what would happen in an emergency. She died.
The Texas legislature then sprang into action the first chance it got, in 2025, as the Texas legislature only meets every two years (small mercies). The original bill attempted to regulate all MedSpas, but ended up only regulating elective IV therapy outside of a “medical practice.” (No definition of what that means.)
As I said, you can’t find the statute, Occ. Code 172.001 on a search engine, so you have to search the Bill number, House Bill 3749—known as Jenifer’s Law—signed into law on June 20, 2025.