TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 118. LASER HAIR REMOVAL

16 TAC §§118.1 - 118.3, 118.10, 118.20, 118.30 - 118.35, 118.40, 118.50, 118.60, 118.61, 118.70, 118.71, 118.80, 118.90, 118.91, 118.100, 118.110

The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 118, §§118.1 - 118.3, 118.10, 118.20, 118.30, 118.31, 118.32, 118.33, 118.35, 118.40, 118.50, 118.60, 118.61, 118.70, 118.71, 118.90, 118.91, 118.100 and 118.110, regarding the Laser Hair Removal program, without changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2114). The rules will not be republished. The Commission also adopts new rules at 16 TAC, Chapter 118, §118.34, regarding Laser Hair Removal Professionals and Senior Laser Hair Removal Technicians--Auditing and Supervision Requirements, and §118.80, regarding Fees, with changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2114). The rules will be republished.

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Commission and the Texas Department of Licensing and Regulation (Department). The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs are being transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department will take effect on September 1, 2017.

The new rules were adopted to enable the Commission and the Department to regulate the six Phase 2 programs listed above. The adopted new rules provide for the Department to perform the various functions, including licensing, compliance, and enforcement, necessary to regulate these transferred programs. The effective date of the adopted rules is November 1, 2017. The effective date will coincide with the completion of the transfer of the programs to the Commission and the Department.

The adopted new §118.1 provides the statutory authority for the Commission and the Department to regulate laser hair removal.

The adopted new §118.2 establishes the purpose of this chapter.

The adopted new §118.3 details the scope of this chapter in regards to laser hair removal.

The adopted new §118.10 creates the definitions to be used in the laser hair removal program.

The adopted new §118.20 details who is prohibited from performing laser hair removal.

The adopted new §118.30 details the requirements and necessary application for a laser hair removal facility certificate.

The adopted new §118.31 explains the responsibilities for a laser hair removal facility.

The adopted new §118.32 establishes the laser safety officer designation and responsibilities.

The adopted new §118.33 provides the requirements and application for a laser hair removal individual certificate.

The adopted new §118.34 establishes auditing and supervision requirements for laser hair removal professionals and senior laser hair removal technicians.

The adopted new §118.35 creates continuing education requirements.

The adopted new §118.40 details the license terms and renewal requirements.

The adopted new §118.50 explains the requirements for certifying entities and examinations.

The adopted new §118.60 establishes responsibilities and protocols for consulting physicians.

The adopted new §118.61 details audits of laser hair removal facility protocols and operations for consulting physicians.

The adopted new §118.70 creates general and operating requirements for laser hair removal devices.

The adopted new §118.71 describes reporting requirements for laser hair removal devices that are stolen, lost, or missing.

The adopted new §118.80 details applicable fees in the laser hair removal program.

The adopted new §118.90 allows for administrative penalties and sanctions.

The adopted new §118.91 provides the authority to enforce Health and Safety Code, Chapter 401, Subchapter M, this chapter and any provision within.

The adopted new §118.100 establishes records retention requirements.

The adopted new §118.110 explains disclosure and confidentiality requirements.

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the April 21, 2017, issue of the Texas Register (42 TexReg 2114). The deadline for public comments was May 22, 2017. The Department held a public hearing during the public comment period on May 12, 2017. During the 30-day public comment period the Department received comments from two interested parties at the public hearing. The public comments received are summarized by issue below.

Comment--Two commenters stated that requiring a registered facility to have a consulting physician and a designated physician on contract is burdensome. Both commenters suggested that physician extenders, such as a licensed physician assistant or advanced practice nurse, should be allowed to act in the designated physician capacity.

Department Response--Chapter 401, Subchapter M, of the Health and Safety Code provides for the regulation of laser hair removal. Section 401.519 (Consulting Physician) of the Health and Safety Code provides that facilities are required to have a written contract with a consulting physician. Section 401.519(c) specifically requires that "if the consulting physician is unavailable for an emergency consultation, another designated physician must be available for the consultation with the facility relating to care for the client." The statute clearly requires two physicians without exception. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter is concerned that medical professionals, or their delegates, are able to perform laser hair removal procedures with no guarantee that the person providing the services has been properly educated or appropriately trained.

Department Response--Chapter 401, Subchapter M, of the Health and Safety Code provides for the regulation of laser hair removal. The statute provides for specific exemptions from licensing requirements for certain individuals under Sections 401.504 (c) and (d) and facilities under Section 401.508(c). The Department is bound by the statutory authority provided in Chapter 401 of the Health and Safety Code and cannot alter them by rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that proposed rule §118.10(17) only provides for four procedure areas on the body and that currently, the Department of State Health Services recognizes 22 different procedure areas.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services. The Department cannot speak to the current internal procedures or policies at the Department of State Health Services. The Department intends to enforce the proposed rules which are substantively similar to the current Department of State Health Services rules. They do not create any additional burdens or make any substantive changes for existing or prospective registrants. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like the rules to distinguish between non-ablative and ablative procedures.

Department Response--The term "Nonablative hair removal procedure" is defined in Chapter 401 of the Health and Safety Code in §401.501(6) and by rule in §118.10(23). The term "ablative" is not defined in statute, or current Department of State Health Services rules; furthermore, laser hair removal registrants are not authorized under the statute to perform ablative procedures. The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services and the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective registrants. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter raised concerns about unapproved training programs operating in this state.

Department Response--Under proposed rule §118.33, training programs must apply to the department for approval and comply with all education requirements. Activity in violation of the rules or statute may result in enforcement actions. This comment has been referred to the appropriate division for review. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that the fee for a laser hair removal facility is high.

Department Response--The purpose of the proposed rules is to ensure a smooth transfer from the Department of State Health Services to the Texas Department of Licensing and Regulation. Texas Occupations Code, Chapter 51, requires the Texas Commission of Licensing and Regulation to set fees in amounts reasonable and necessary to cover the costs of administering the program. The Department recently conducted a fee analysis for the Laser Hair Removal program. The Department found that the fees in the proposed rules are above the amounts that will be required for the Department to cover its costs. Therefore, the Department has reduced the facility certificate of LHR registration initial fee from $1,260 to $900 and the renewal fee from $1,260 to $750.

Comment--One commenter stated that facility owners are not allowing Laser Safety Officers to properly perform their duties.

Department Response--The Department does not have control over business practices or operations. This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter expressed concern that not all registrants are well-educated in safety and sanitation issues that may be associated with laser hair removal.

Department Response--This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that it is difficult to obtain continuing education because there are not many places that offer courses and there isn't a way to look up course providers.

Department Response--This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter requested that better information be provided on the state website concerning approved education providers.

Department Response--This comment does not address any current proposed rule. It has been referred to the appropriate division for review. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that according to the Texas Medical Board, laser hair removal is not considered a medical practice. The commenter questions why it is considered a medical procedure when the Texas Medical board does not consider it a medical practice.

Department Response--The proposed rules do not define laser hair removal as a medical procedure. The Department cannot speak to the policies of the Texas Medical Board. This comment does not address any current proposed rule. The Department did not make any changes to the proposed rules in response to this comment.

During the rulemaking process the Department conducted a fee analysis for the Laser Hair Removal program. Section 51.202 of the Texas Occupations Code, requires the Commission to set fees in amounts reasonable and necessary to cover the costs of administering the programs under the Department's jurisdiction. Additionally, Article VIII, Section 2 of the General Appropriations Act requires the Department's revenue cover the cost of the Department's appropriations and other direct and indirect costs. The Department found that the fees in the proposed rules are above the amounts that will be required for the Department to cover its costs. Therefore, the Department has reduced the facility certificate of LHR registration initial fee from $1,260 to $900 and the renewal fee from $1,260 to $750. The decrease in this fee will not adversely affect the administration and enforcement of the program. The reduction in the renewal fee will result in approximately $73,440 of lost revenue to the state each year.

At its meeting on August 18, 2017, the Commission adopted the proposed rules with changes as recommended by the Department.

The new rules are adopted under Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 401, Sections 501 - 522, 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 adoption are those set forth in Texas Occupations Code, Chapter 51 and Health and Safety Code, Chapter 401, Sections 501 - 522. No other statutes, articles, or codes are affected by the adoption.

§118.34.Laser Hair Removal Professionals and Senior Laser Hair Removal Technicians--Auditing and Supervision Requirements.

(a) A physician or other licensed health professional shall not perform the auditing activities of a LHR professional in accordance with §118.33(c), unless that individual meets the requirements for a LHR professional specified in §118.33(b).

(b) A physician or other licensed health professional shall not perform the direct supervision activities of a LHR professional or senior LHR technician in accordance with §118.33(d), unless that individual meets the requirements of §118.33(b) and §118.33(c).

(c) A LHR professional shall audit and ensure that there was direct supervision of the 100 LHR procedures performed by a LHR technician while obtaining the requirements of §118.33(c)

§118.80.Fees.

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

(b) The two-year initial certification fee for a facility certificate of LHR registration is $900.

(c) The two-year renewal fee for a facility certificate of LHR registration is $750.

(d) The two-year initial certification fees and two-year renewal fees for individual LHR certificates are as follows:

(1) LHR professional--$150;

(2) senior LHR technician--$100;

(3) LHR technician--$70; and

(4) LHR apprentice-in-training--$50.

(e) A duplicate/replacement fee for registrations and certificates issued under this chapter are $25.

(f) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

(g) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 1, 2017.

TRD-201703474

Brian E. Francis

Executive Director

Texas Department of Licensing and Regulation

Effective date: November 1, 2017

Proposal publication date: April 21, 2017

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