TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 92. RESPONSIBLE PET OWNERS

16 TAC §§92.1, 92.10, 92.20 - 92.22, 92.30 - 92.32, 92.51, 92.52, 92.60, 92.80, 92.90, 92.91, 92.95

The Texas Department of Licensing and Regulation (Department) proposes new rules at 16 Texas Administrative Code (TAC), Chapter 92, §§92.1, 92.10, 92.20 - 92.22, 92.30 - 92.32, 92.51, 92.52, 92.60, 92.80, 92.90, 92.91 and 92.95, regarding the Responsible Pet Owners program.

JUSTIFICATION AND EXPLANATION OF THE RULES

House Bill 162 (H.B. 162), 85th Legislature, Regular Session (2017), established the registration of Providers and Online Responsible Pet Owner courses. H.B. 162 authorizes the Texas Commission of Licensing and Regulation and the Department to establish rules to license and regulate providers and online responsible pet owner courses. The new rules are necessary to implement H.B. 162.

SECTION- BY- SECTION SUMMARY

The proposed new §92.1 establishes statutory authority.

The proposed new §92.10 creates the definitions to be used in the Responsible Pet Owners program.

The proposed new §92.20 provides for the course provider registration requirements.

The proposed new §92.21 establishes the renewal requirements for the course provider registration.

The proposed new §92.22 details when a registration may be denied.

The proposed new §92.30 provides for the responsible pet owner online course general requirements.

The proposed new §92.31 details the course requirements for the responsible pet owner online courses.

The proposed new §92.32 details the attendance verification requirements for the responsible pet owner online course.

The proposed new §92.51establishes the responsibilities of course providers.

The proposed new §92.52 requires course providers to update information, including when a change of address occurs.

The proposed new §92.60 details the reporting and audit requirements and the manner the reports must be submitted.

The proposed new §92.80 creates the fees to be used in the responsible pet owners program.

The proposed new §92.90 provides for complaints and investigations.

The proposed new §92.91 allows for administrative sanctions and penalties.

The proposed new §92.95 details the reporting requirements.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the new rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed new rules.

Brian E. Francis, Executive Director, has determined that for each year of the first five years the new rules are in effect, there is an estimated increase in general revenue to state government of $600.00 as a result of enforcing or administering the proposed new rules. The Department anticipates two providers to register under the responsible pet owners program. In addition, the proposed new rules will not increase or decrease revenue to local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed new rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-year period, the proposed new rules are in effect, the public will benefit from the availability of an accredited online responsible pet owners course regulated by the Department.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, the anticipated economic costs to persons who are required to comply with the proposed rules would be $200.00 for the provider application and $100.00 for the course approval totaling $300.00 per business for the first year, and $300.00 annually per business in subsequent years to include the renewal fee and the course approval fee.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed new rules.

Since the agency has determined that the proposed new rules will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed new rules implement legislation which is an exception under §2001.0045(c). Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed new rules will be in effect, the agency has determined the following:

(1) The proposed rules do not create a government program, however, H.B. 162 creates the Responsible Pet Owner program by amending Article 42A.511 of the Code of Criminal Procedure. The proposed new rules implement the intent of the legislature.

(2) Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules require an increase in fees paid to the agency of roughly $600.00 per year. The Department anticipates two providers will register under this program.

(5) The proposed rules create a new regulation by establishing 16 Texas Administrative Code, Chapter 92, §§92.1, 92.10, 92.20 - 92.22, 92.30 - 92.32, 92.51, 92.52, 92.60, 92.80, 92.90, 92.91 and 92.95.

(6) The proposed rules do not expand, limit, or repeal an existing regulation.

(7) The proposed rules increase the number of individuals subject to the rule's applicability from zero to approximately two.

(8) The proposed rules do not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, Texas Department of Licensing Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The new rules are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapter 51 and Code of Criminal Procedure, Article 42A.511. No other statutes, articles, or codes are affected by the proposal.

§92.1.Authority.

These rules are promulgated under the authority of Article 42A.511, Code of Criminal Procedure and Texas Occupations Code Chapter 51.

§92.10.Definitions.

The following terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Attendance Verification--a system designed for personal validation of course participants with content validation throughout the full length of the course.

(2) Commission--The Texas Commission of Licensing and Regulation.

(3) Course--An online responsible pet owner course provided to a participant and approved by the department.

(4) Course Provider--A person registered by the department to offer online responsible pet owner courses.

(5) Department--The Texas Department of Licensing and Regulation.

(6) Instructional Hour-- One hour of instruction is equivalent to 50 minutes.

(7) Participant--An individual that receives court-ordered community supervision, pursuant to Article 42A.511, Code of Criminal Procedure, and is required to register and complete an online responsible pet owner course.

§92.20.Course Provider Registration Required.

(a) A person must register with and receive department approval, pursuant to Texas Occupations Code Chapter 51, before offering a course.

(b) To register as a course provider, an applicant must:

(1) submit an application on a form approved by the department; and

(2) pay all applicable fees.

§92.21.Course Provider Registration Renewals.

(a) Course provider registration is valid for one year, and may be renewed at the end of each registration period.

(b) To renew a registration, a course provider must:

(1) submit a renewal application on form approved by the department; and

(2) pay all applicable fees.

§92.22.Denial of Registration.

(a) The commission or the executive director may deny a registration, refuse to renew, or revoke a registration or course approval if the applicant or registered course provider has:

(1) violated an order of the commission or executive director, including an order for sanctions or administrative penalties;

(2) knowingly submitted false or incomplete information on the application; or

(3) provided false, misleading, or deceptive information in the application.

(b) If the commission or the executive director denies a registration, refuses to renew, or revokes a registration or course approval, a subsequent application for registration or course approval must contain a statement describing the circumstances leading to the denial or revocation and evidence to demonstrate that the basis for the denial or revocation no longer exists.

§92.30.Responsible Pet Owner Online Courses--General Requirements.

(a) Each course offered by a course provider must be approved by the department before being offered and is valid for one year.

(b) To obtain approval of a course, a provider must file a completed application on a department-approved form and pay all applicable fees.

(c) If a provider's registration expires, all course approvals for that provider shall expire.

§92.31.Responsible Pet Owner Online Courses--Course Requirements.

(a) Each application for course approval must be accompanied by:

(1) a course outline that identifies the educational objectives required by subsection (b); and

(2) the time allotted for each educational objective.

(b) The educational objectives of online responsible pet owner courses must include, but are not limited to the promotion of:

(1) respect and observance of federal and state laws which protect livestock and non-livestock animals, and wildlife;

(2) responsible care for spaying, neutering and tethering of animals;

(3) state and federal laws related to cruelty to livestock and non-livestock animals, attacks on assistance animals and dog fighting;

(4) responsible care concepts to include health, safety and welfare for non-livestock and livestock animals, wildlife and bite prevention; and

(5) Chapter 802, Texas Occupations Code (Dog or Cat Breeders Act) and Title 16, Chapter 91, Texas Administrative Code (Dog or Cat Breeders Program).

(c) The course must be offered online. Each course must be timed and contain a procedure for attendance verification to ensure the participant is active for the full length of the course.

(d) The course must include the log-in information for the course including passwords and the procedure for attendance verification.

(e) Course materials must have the following characteristics:

(1) appropriate grammar, spelling and punctuation;

(2) appropriate illustrations and graphics that are consistent with the educational objectives shown in §92.31(b); and

(3) comprehensive presentation of subject matter that is consistent with the educational objectives shown in §92.31(b).

(f) The course must include:

(1) a minimum of two (2) instructional hours;

(2) built-in timers to ensure the minimum hours of instruction have been completed by the participant; and

(3) attendance verification.

§92.32.Responsible Pet Owner Online Courses--Attendance Verification Requirements.

(a) Personal validation. The course provider shall maintain a system to validate the identity of the person taking the course. The personal validation system shall include the following requirements:

(1) Personal validation questions. The course provider shall ask a minimum of ten (10) personal validation questions throughout the course.

(2) Time to respond. The participant must correctly answer the online personal validation question within ninety (90) seconds. Failure by the participant to respond within ninety (90) seconds will result in the validation question being scored as incorrect.

(3) Placement of questions. At least one personal validation question shall appear in each major unit or section.

(4) Exclusion from the course. The course provider shall exclude the participant from the course after the participant has incorrectly answered more than thirty (30) percent of the personal validation questions.

(5) Correction of answer. The course provider may correct an answer to a personal validation question for a participant who inadvertently missed a personal validation question. In such a case, the course provider shall record both answers and an explanation of the reasons that the course provider corrected the answer.

(b) Alternative methods. Upon approval by the department, the course provider may use alternate methods that are at least as secure as the personal validation question method.

(c) Content validation. The course provider shall incorporate a course content validation process that verifies participant comprehension of course material related to the educational objectives shown in §92.31(b), including the following:

(1) Testing the participant's course comprehension. The course provider shall ask at least one course content validation question following each major unit or section.

(2) Course content validation question difficulty. The question shall be multiple choice. The question shall be difficult enough that the answer may not be easily determined without having viewed the contents of the major unit or section.

(3) Mastery of course content. The course provider shall test the participant's mastery of the course content by asking at least two questions from each major unit or section.

(A) Test bank. The test bank for course content mastery questions shall include at least five (5) questions from each major unit or section.

(B) Failure criteria. The course provider shall exclude the participant from the course after the participant has incorrectly answered more than thirty (30) percent of the content validation questions.

(C) Answer identification. The course provider shall not identify the correct answer to the content validation question to the participant.

§92.51.Responsibilities of Course Providers.

(a) A course provider must:

(1) ensure that courses are delivered online in a manner conducive to learning;

(2) include the department-issued provider and course numbers in all advertisements and webpages; and

(3) issue a certificate of completion to each participant who completes the course.

(b) The certificate of completion must be printable by the person completing the course and include:

(1) title and number of the course;

(2) unique participant registration number;

(3) course provider name, provider number, course name and number, and telephone number;

(4) case or cause number for the offense;

(5) offense type;

(6) court number and county of the offense;

(7) date of the offense;

(8) course completion date;

(9) number of instructional hours;

(10) name of the participant who completed the course;

(11) electronic signature of the course provider authorized representative, and the participant; and

(12) the following statement, signed by the participant: "Under penalty of law, I attest to the fact by name and signature on this document I have successfully completed the number of hours as required under Texas Administrative Code, Title 16, Chapter 92, and that any false information on this document will be used as evidence against me in a court of law and/or administrative proceeding."

(c) A provider may not publish false or misleading advertisements.

(d) Course providers are responsible for the conduct and administration of their courses, including the verification of participant attendance and course performance. Course providers must ensure that their courses are administered in a manner consistent with the representations contained in the application for course approval.

§92.52.Course Provider--Change of Address and Information.

A course provider must notify the department in writing within thirty (30) calendar days of any change in the course provider's address, telephone number, e-mail address, or course website address.

§92.60.Records and Audits.

(a) A course provider must retain participant records, as identified by §92.51(b), for a period of two years after completion of a course.

(b) To determine whether a provider is complying with the requirements of this chapter, department employees and representatives may conduct an audit of the approved course. Audits may be conducted without prior notice to the provider and department employees and representatives may enroll in a course without identifying themselves as employees or representative of the department.

(c) Course providers must maintain a means to ensure the security and integrity of participant information which must include a privacy policy statement. The privacy policy statement must be provided to course registrants at the time of registration.

(d) Upon request, a course provider must provide information, including copies of specified records, to the department within ten business days of the date of the request.

§92.80.Fees.

(a) Course provider application fee--$200.

(b) Course provider renewal application fee--$200.

(c) Online responsible pet owner course-approval fee per course--$100.

(d) Revised/Duplicate/Certificate/Permit/Registration--$25.

(e) Late renewal fees for registrations issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(f) All fees paid to the department are non-refundable.

§92.90.Complaints; Investigations.

(a) Upon request from the department, a course provider must cooperate with the department, its employees and representatives, and furnish requested information concerning any department investigation.

(b) Within ten business days from the date of the request, a course provider must provide to the department any of its documents or records, unless otherwise prohibited by law.

(c) The course provider's name, address, phone number, and provider number shall appear on all business-related communications, business website and advertisements from the provider. The following information: "Regulated by The Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, 1-800-803-9202 (in-state only), (512) 463-6599; website: "www.tdlr.texas.gov" shall appear for purposes of directing questions or complaints.

§92.91.Sanctions--Administrative Sanctions and Penalties.

If a person or entity violates any provision of Texas Occupations Code Chapter 51, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51, and any associated rules.

§92.95.Reporting Requirements.

A course provider must submit a monthly report to the department containing the:

(1) total number of course completion certificates issued;

(2) name and county of residence of all participants;

(3) location of the court and county where the offenses occurred; and

(4) dates of course completion.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 28, 2017.

TRD-201705401

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


CHAPTER 117. MASSAGE THERAPY

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter A, §117.2; Subchapter C, §117.20; Subchapter E, §117.40; Subchapter F, §§117.50, 117.60, 117.62; Subchapter G, §117.80 and §117.82; Subchapter J, §117.111; and proposes new rules at 16 TAC, Subchapter B §§117.10 - 117.14, regarding the Massage Therapy program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The proposed rules implement legislative changes from the 85th Legislature, Regular Session (2017), for the Massage Therapy Program, which includes updating the rules to reflect statutory requirements for criminal history investigations, conditions for license eligibility, conditions for revoking a license; and adding an advisory board. The proposed rules are necessary to implement legislative changes.

SECTION - BY - SECTION SUMMARY

The proposed amendments to §117.2 adds the definition "applicant" and renumbers the section accordingly.

The proposed new Subchapter B, provides for the Massage Therapy Advisory board.

The proposed new §117.10 establishes the advisory board membership and composition.

The proposed new §117.11 explains the advisory board duties.

The proposed new §117.12 explains the advisory board terms and vacancies.

The proposed new §117.13 establishes the advisory board presiding officer.

The proposed new §117.14 details when the advisory board must meet.

The proposed amendments §117.20 makes editorial corrections.

The proposed amendments §117.40 requires passing a criminal history background check for massage therapy instructor applicants.

The proposed amendments §117.50 requires passing a criminal history background check for massage school license applicants.

The proposed amendments §117.60 makes editorial corrections.

The proposed amendments §117.62 details massage school enrollment procedures and makes editorial corrections.

The proposed amendments §117.80 requires passing a criminal history background check for massage establishment applicants.

The proposed amendments §117.82 makes editorial corrections.

The proposed amendments §117.111 details administrative penalties and sanctions.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Francis has also determined that for each year of the first five-year period, the proposed rules are in effect, the public will benefit by the establishment of the Massage Therapy Advisory Board, which allows stakeholders and the general public to provide input to the Department related to the regulation of the massage therapy profession. The requirement for criminal history background checks for applicants, and specific criminal history standards related to applicants who are ineligible to hold a license, protect consumers by ensuring that they receive massage therapy services from licensees who have not demonstrated a lack of honestly, trustworthiness, or integrity to hold a license.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MIRCO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse affect on small businesses, micro-businesses, or rural communities as a result of the proposed rules.

Since the agency has determined that the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule. There are exceptions for certain types of rules under §2001.0045(c).

The proposed rules do not impose a cost on regulated persons and implement legislation which is an exception under §2001.0045(c). Therefore, the agency is not required to take any further action under Government Code §2001.0045(c).

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed new rules will be in effect, the agency has determined the following:

(1) The proposed rule does not create or eliminate a government program.

(2) Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rule does not require an increase or decrease in fees paid to the agency.

(5) The proposed rule does create a new regulation. House Bill 4007 (85R) created a new advisory board that did not previously exist. The proposed rules reflect the statutory composition and role of the new advisory board, and it will function similarly to the Department's existing advisory boards.

(6) The proposed rule does expand, limit, or repeal an existing regulation. The proposed rules repeal a rule based on a statutory repeal in House Bill 4007 (85R). An applicant will no longer be ineligible to hold a massage therapy license based solely upon conviction for a felony or a misdemeanor or moral turpitude in the last five years preceding the application. The criminal history of these applicants will be reviewed in accordance with the existing Department criminal history standards in 16 Texas Administrative Code, Chapter 60.

(7) The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability.

(8) The proposed rule does not positively or adversely affect this state's economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, Texas Department of Licensing Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §117.2

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.2.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (2) (No change.)

(3) Applicant--A person who submits an application to the department. The term includes: owner, owner's agent, operator, principal, officer, or general manager of the applicant.

(4) [(3)] Business practices and professional ethics--The study of standard bookkeeping and accounting practices, office practices, and advertising, and ethical guidelines for massage therapists established by law or the department.

(5) [(4)] Client--An individual or patron seeking or receiving massage therapy services.

(6) [(5)] Commission--The Texas Commission on Licensing and Regulation.

(7) [(6)] Compensation--Any and all forms of payment as remuneration for the provision of massage therapy or other massage therapy services, including but not limited to, fees, tips, memberships, goods, services, barter, or any other exchange or any value made to or on behalf of a licensee, an unlicensed person, or an unlicensed business. Compensation includes discounted, reduced, or waived student fees for tuition, books, supplies, or other educational expenses.

(8) [(7)] Department--The Texas Department of Licensing and Regulation.

(9) [(8)] Executive Director --The executive director of the department.

(10) [(9)] Health and hygiene--The study of recognized methods of sanitation and cleanliness including prophylaxis or disease prevention as applied to massage therapy services and current knowledge of elements of healthy life styles.

(11) [(10)] Hydrotherapy--The use of generally accepted methods of external application of water for its mechanical, thermal, or chemical effect.

(12) [(11)] Instructor--A person employed at a licensed massage school who instructs one or more students in any section of the course of instruction, other than massage therapy techniques, manipulation of soft tissue, or the internship.

(13) [(12)] Kinesiology--The study of the anatomy, physiology, and mechanics of movement of the human body.

(14) [(13)] Licensee--A person or entity licensed under the Act as a massage therapist, massage school, massage therapy instructor, or massage establishment.

(15) [(14)] Massage school--An entity that:

(A) teaches at a minimum the course of instruction required for a massage therapist license; and

(B) has at least two instructors.

(16) [(15)] Massage therapist--A person who practices or administers massage therapy or other massage services to a client for compensation. The term includes a licensed massage therapist, therapeutic massage practitioner, massage technician, masseur, masseuse, myotherapist, body massager, body rubber, or any derivation of those titles.

(17) [(16)] Massage therapy--The manipulation of soft tissue by hand or through a mechanical or electrical apparatus for the purpose of body massage. The term includes effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes, and Swedish gymnastics. Massage therapy may include the use of oil, lubricant, salt glows, heat lamps, hot and cold packs, or tub, shower, jacuzzi, sauna, steam or cabinet baths. Equivalent terms for massage therapy are massage, therapeutic massage, massage technology, myo-therapy, body massage, body rub, or any derivation of those terms. Massage therapy is a health care service when the massage is for therapeutic purposes. The terms "therapy" and "therapeutic" do not include diagnosis, the treatment of illness or disease, or any service or procedure for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. Massage therapy does not constitute the practice of chiropractic.

(18) [(17)] Massage therapy educational program--The minimum 500 hour supervised course of instruction described in the Act, §455.156, required for licensure and provided by a licensed massage school.

(19) [(18)] Massage therapy establishment--A place of business that advertises or offers massage therapy or other massage services unless specifically exempted by the Act. The term includes a place of business that advertises or offers any service described by a derivation of the terms "massage therapy" or "other massage services" as defined by the Act.

(20) [(19)] Massage therapy instructor--A licensed massage therapist who provides to one or more students instruction approved by the department in massage therapy or manipulation of soft tissue and who holds a license issued by the department as a massage therapy instructor.

(21) [(20)] Owner--An owner is, in the case of a massage school or establishment, an individual, a partnership and any partners, a corporation, or any other legal business entity.

(22) [(21)] Pathology--The scientific study of the nature of disease and its causes, processes, development, and consequences.

(23) [(22)] Physiology--The study of the normal vital processes of the human body including the processes of cells, tissues, and organs including the contractibility of muscle tissue; coordination through the nervous system; digestion; circulatory; reproduction; and secretions.

(24) [(23)] State approved educational institution--An institution which is approved by the Texas Education Agency or which is an institution of higher education as defined in the Texas Codes Annotated, Texas Education Code, Chapter 61 or a higher education institution approved by a similar agency in another state.

(25) [(24)] Swedish gymnastics--Passive and active joint movements, nonspecific stretches, passive and active exercise, or any combination of these.

(26) [(25)] Swedish massage therapy techniques--The manipulation of soft tissue utilizing effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve stroke, and Swedish gymnastics.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705352

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


SUBCHAPTER B. MASSAGE THERAPY ADVISORY BOARD

16 TAC §§117.10 - 117.14

The new rules are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal option are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.10.Advisory Board Membership.

The advisory board consists of nine members appointed by the presiding officer of the commission with the approval of the commission as follows:

(1) Two members who are licensed massage therapists;

(2) Two members who represent licensed massage schools;

(3) Two members who represent licensed massage establishments;

(4) One member who is a peace officer with expertise in the enforcement of Chapter 20A, Penal Code, and Subchapter A, Chapter 43, Penal Code; and

(5) Two members of the public.

§117.11.Duties of Advisory Board.

The advisory board shall provide advice and recommendations to the department on technical matters relevant to the administration of this chapter.

§117.12.Terms; Vacancies.

(a) Members of the advisory board are appointed for staggered six-year terms. The terms of three members expire September 1 of each odd-numbered year.

(b) If a vacancy occurs on the advisory board during a member's term, the presiding officer of the commission, with the commission's approval, shall appoint a replacement who meets the qualifications for the vacant position to serve the remainder of the term.

(c) A member of the advisory board may be removed from the advisory board pursuant to Texas Occupations Code §51.209, Advisory Boards; Removal of Advisory Board Member.

§117.13.Presiding Officer.

(a) The presiding officer of the commission shall designate a member of the advisory board to serve as presiding officer of the advisory board for a term of one year.

(b) The presiding officer of the advisory board may vote on any matter before the advisory board.

§117.14.Meetings.

The advisory board shall meet at the call of the executive director or the presiding officer of the commission.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705359

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


SUBCHAPTER C. LICENSED MASSAGE THERAPIST

16 TAC §117.20

The amendments are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.20.Massage Therapist License--General Requirements and Application.

(a) To be eligible for a Massage Therapist license an applicant must:

(1) - (7) (No change.)

(8) satisfactorily complete massage therapy studies in a minimum 500-hour [500 hour] department approved course at a licensed massage school in which includes at least:

(A) 200 hours of massage therapy techniques and theory and the practice of manipulation of soft tissue, with at least 125 hours of Swedish massage therapy techniques;

(B) 50 hours of anatomy;

(C) 25 hours of physiology;

(D) 50 hours of kinesiology;

(E) 40 hours of pathology;

(F) 20 hours of hydrotherapy;

(G) 45 hours of massage therapy laws and rules, business practices and professional ethics;

(H) 20 hours of health, hygiene, first aid, universal precautions, and cardiopulmonary resuscitation (CPR); and

(I) 50-hour [50 hour] internship program.

(b) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705353

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


SUBCHAPTER E. LICENSED MASSAGE THERAPY INSTRUCTORS

16 TAC §117.40

The amendments are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.40.Massage Therapy Instructor--General Requirements and Application.

(a) (No change.)

(b) To qualify for massage therapy instructor license, a person shall:

(1) - (2) (No change.)

(3) submit a statement of assurance that the licensee has been engaged in the practice of massage therapy for at least one year and has conducted 500 hours of hands-on experience (does not include internship hours); [and]

(4) (No change.)

(5) submit a completed application on a department-approved form; [and]

(6) pay the required feed under §117.100; and [.]

(7) successfully pass a criminal history background check performed by the department.

(c) - (d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705354

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


SUBCHAPTER F. LICENSED MASSAGE SCHOOLS

16 TAC §§117.50, 117.60, 117.62

The amendments are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.50.Massage School License--General Requirements and Application.

(a) - (b) (No change.)

(c) Each applicant for a massage school must [submit]:

(1) submit a completed application on a department-approved form;

(2) submit supporting documents that shall include:

(A) lease agreement;

(B) detailed floor plan; and

(C) inventory;

(3) provide the financial stability statements or documents as prescribed under §117.56; [and]

(4) pay the required fee under §117.100; and [.]

(5) successfully pass a criminal history background check performed by the department.

(d) - (f) (No change.)

§117.60.Massage School Advanced Course Work.

(a) Advanced course work offered by a massage school which is beyond and not a part of the minimum 500-hour [500 hour] course of instruction must be:

(1) directly related to the theory or clinical application of theory pertaining to the practice of massage therapy and the manipulation of soft tissue, business practices, professional ethics, massage therapy laws and rules, universal precautions, anatomy, physiology, kinesiology, pathology, hydrotherapy, and health and hygiene; and

(2) designed to increase and enhance professional knowledge, skills, or competence in the practice of massage therapy or other massage therapy services.

(b) - (e) (No change.)

§117.62.Massage School Enrollment Procedures.

(a) Before enrollment, each massage school shall provide each prospective student with the following:

(1) - (8) (No change.)

(9) the student-teacher [pupil-teacher] ratio;

(10) - (15) (No change.)

(16) a statement that the Act sets out that a person is ineligible for licensure:

(A) if the person has been convicted of, entered a plea of nolo contendere or guilty to, or received deferred adjudication to crimes or offenses under Chapter 20A, Penal Code, or Subchapter A, Chapter 43, Penal Code, [involving prostitution] or another sexual offense; or

[(B) until the fifth anniversary of the date of a conviction for a misdemeanor involving moral turpitude or a felony; or]

(B) [(C)] until the fifth anniversary of the date of a conviction of a violation of the Act.

(b) (No change.)

(c) Each massage school shall use a department-approved acknowledgment form to verify the prospective student's receipt of the information required in subsection (a). A signed copy of the form shall be given to the prospective student and the original shall be maintained in the student's file. The form shall include the following or similar statements:

(1) - (3) (No change.)

(4) "I have been made aware that the State of Texas requires only the minimum 500-hour [500 hour] course of instruction for licensure as a massage therapist, and anything beyond that is strictly voluntary."

(d) - (e) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705356

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS

16 TAC §117.80, §117.82

The amendments are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.80.Massage Establishment Application Procedures and Licensure.

(a) - (b) (No change.)

(c) Each applicant for a massage establishment must [submit]:

(1) submit a completed application on a department approved form; [and]

(2) pay the fee as prescribed under §117.100; and[.]

(3) successfully pass a criminal history background check performed by the department.

§117.82.Massage Establishments--General Requirements.

(a) - (h) (No change.)

(i) For purposes of this section:

(1) (No change.)

(2) "Sexual contact" includes:

(A) - (D) (No change.)

(E) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotion [promotions] of prostitution as described in Texas Penal Code, Chapters 21, 22, and 43, or any offer or agreement to engage in such activities;

(F) - (G) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705357

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179


SUBCHAPTER J. ENFORCEMENT PROVISIONS

16 TAC §117.111

The amendments are proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposal.

§117.111.Administrative Penalties and Sanctions.

(a) - (b) (No change.)

(c) The commission or executive director shall revoke the license of a person if:

(1) the person is convicted of, enters a plea of nolo contendere or guilty to, or receives deferred adjudication for an offense under Chapter 20A, Penal Code, or Subchapter A, Chapter 43, Penal Code [involving prostitution] or another sexual offense; or

(2) (No change.)

(d) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705358

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 463-8179