TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 117. MASSAGE THERAPY

The Texas Commission of Licensing and Regulation (Commission) adopts new rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter A, §117.1 and §117.2; Subchapter C, §§117.20 - 117.24; Subchapter D, §§117.30 - 117.34; Subchapter E, §117.40 and §117.41; Subchapter F, §§117.50 - 117.54, 117.56, 117.58 - 117.68; Subchapter G, §§117.80 - 117.85; Subchapter H, §§117.90 - 117.93; Subchapter J, §§117.110 - 117.112, regarding the Massage Therapy program, without changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2094). The rules will not be republished.

The Commission also adopts new rule at 16 TAC, Chapter 117, Subchapter F, §117.55 and §117.57; and Subchapter I, §117.100, regarding the Massage Therapy program, with changes to the proposed text as published in the April 21, 2017, issue of the Texas Register (42 TexReg 2094). 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 Subchapter A provides the General Provisions for the proposed new rules.

The adopted new §117.1 provides the statutory authority for the Commission and the Department to regulate the massage therapy program.

The adopted new §117.2 creates the definitions to be used in the massage therapy program.

The adopted new Subchapter C establishes licensed massage therapist requirements.

The adopted new §117.20 creates the general requirements and applications for the massage therapist license.

The adopted new §117.21 details the reciprocity requirements for the massage therapist license.

The adopted new §117.22 explains the examination required for the massage therapist license.

The adopted new §117.23 explains the issuance of a massage therapist license.

The adopted new §117.24 establishes the massage therapist term and renewal requirements.

The adopted new Subchapter D creates the continuing education requirements.

The adopted new §117.30 establishes the continuing education hours for massage therapist.

The adopted new §117.31 details the approved continuing education courses and providers for massage therapist.

The adopted new §117.32 explains activities that are unacceptable for continuing education for massage therapists.

The adopted new §117.33 establishes the record and audit process for massage therapist continuing education.

The adopted new §117.34 explains the general requirements and applications for continuing education providers to be approved by the Department.

The adopted new Subchapter E creates licensed massage therapy instructors.

The adopted new §117.40 details the general requirements and applications for massage therapy instructors.

The adopted new §117.41 establishes the massage therapy instructor term and renewal requirements.

The adopted new Subchapter F provides for licensed massage schools.

The adopted new §117.50 details the general and application requirements for a massage school license.

The adopted new §117.51 creates massage school location requirements.

The adopted new §117.52 explains change of massage school ownership.

The adopted new §117.53 establishes massage school equipment and facility requirements.

The adopted new §117.54 establishes massage school sanitation requirements.

The adopted new §117.55 provides for massage school inspections.

The adopted new §117.56 explains necessary documents and requirements to establish massage school financial stability.

The adopted new §117.57 establishes massage school license renewal requirements.

The adopted new §117.58 provides for massage school administrative personnel.

The adopted new §117.59 creates the massage school curriculum outline and internship.

The adopted new §117.60 details massage school advanced course work.

The adopted new §117.61 establishes massage school admission requirements.

The adopted new §117.62 explains massage school enrollment procedures.

The adopted new §117.63 establishes massage school tuition and fees.

The adopted new §117.64 provides for massage school transcripts and records.

The adopted new §117.65 creates a massage school conduct and grievance policy.

The adopted new §117.66 establishes massage school cancellation, refund and school closure policies.

The adopted new §117.67 details massage school minimum progress standards.

The adopted new §117.68 provides for a massage school attendance policy.

The adopted new Subchapter G creates licensed massage establishments.

The adopted new §117.80 details the general requirements and applications for massage establishments.

The adopted new §117.81 establishes massage establishment renewal requirements.

The adopted new §117.82 explains general requirements for massage establishments.

The adopted new §117.83 details sanitation requirements for massage establishments.

The adopted new §117.84 provides exemptions to the requirement for massage establishment licensure.

The adopted new §117.85 explains massage establishment change of ownership or location requirements.

The adopted new Subchapter H explains the responsibilities of licensees and code of ethics to be used in the massage therapy program.

The adopted new §117.90 creates general ethical requirements.

The adopted new §117.91 details the consultation document.

The adopted new §117.92 prohibits sexual misconduct.

The adopted new §117.93 explains advertising requirements.

The adopted new Subchapter I creates fees.

The adopted new §117.100 details applicable fees in the massage therapy program.

The adopted new Subchapter J provides enforcement provisions.

The adopted new §117.110 requires massage therapy program licensees to cooperate with the Department regarding complaints.

The adopted new §117.111 allows for administrative penalties and sanctions.

The adopted new §117.112 provides the authority to enforce this chapter and Texas Occupations Code, Chapter 455.

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 2094). 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 the American Massage Therapy Association Texas Chapter and one hundred thirty-four interested parties, including twelve who made comments during the public hearing. The public comments received are summarized by issue below.

Rule Related Comments

Comment--Five commenters noted that the proposed rule §117.57(b)(3) added an additional burden on massage school license renewals by now requiring audited financial statements similar to those required for initial massage school applicants.

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. The department agrees that the proposed rule §117.57(b)(3) as published creates an additional burden for licensed massage therapy schools. The phrase "as prescribed under §117.56" has been removed as a result of these comments.

Comment--One hundred and nine commenters requested retaining proposed rule §117.22(b), specifically the phrase "broadly accepted." The commenters stated that the deletion of this phrase would have long term and damaging effects on the entire industry in Texas and would negatively affect reciprocity.

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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Twelve commenters stated that the proposed rule §117.22(b) uses the phase "broadly recognize" which they believe conflicts with current law. The commenters stated further that the Massage and Bodywork Licensing Exam does not reflect the state curriculum.

Department Response--Proposed rule §117.22(b) reflects existing Department of State Health Services language that was adopted in 2009 (See current 25 Texas Administrative Code §140.313(a)). The Department has determined that the rule is consistent with the statute. The Massage and Bodywork Licensing Exam and the state curriculum have both been in place at the Department of State Health Services since 2009. 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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Four commenters made comments in regards to the definition of massage. Three commenters suggested the need to change the definition of "massage therapy" to distinguish the profession from unlicensed or illicit activity. One commenter encouraged the department to carefully consider any changes to the definition of "massage therapy" and not infringe on many therapists working in the spa industry.

Department Response--The definition of "massage therapy" in proposed rule §117.2(16) uses language found in state law (See Occupations Code Chapter 455, §§455.001(8), 455.001(11), 455.002, and 455.003). The Department lacks authority to revise the definition of a term that is defined by statute. 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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter raised concern with the attendance policy under proposed rule §117.68(e)(2). The commenter opined that if a student is able to complete the 500 hour requirement, regardless of absences, they should not be terminated after missing 15% of the clock hour program.

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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter believed that the gift card policy should be left up to the therapist or have a set expiration date.

Department Response--Proposed rules §117.90(e) requires a licensee to honor an unexpired gift certificate or provide a full refund. The rule does not prohibit or require expiration dates on gift certificates nor does it require a licensee to honor or provide a refund for an expired gift certificate. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Two commenters would like to see a rule that requires draping of clients.

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. At this time, the proposed rule for draping under proposed rules §117.91(a)(4) does not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter stated that the fee of $300 every two years for massage establishments seems burdensome and excessively 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 Massage Therapy 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 some of the fees associated with this program including the initial application fee from $300 to $200; and the renewal application fee from $300 to $200 for all other establishment applicants.

Enforcement Related Comments

Comment--Five commenters expressed concern over unlicensed activity, prohibited activity, and the need for enforcement action.

Department Response--The Department is responsible for administering and enforcing Occupations Code, Chapter 455, including taking appropriate action if a person has violated the law or rules. 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 the department to enforce licensing in malls.

Department Response--The Department is responsible for the administration and enforcement of Occupations Code, Chapter 455 in any setting in which services requiring licensure are provided. 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 would like information relating to pending and resolved enforcement actions kept up to date.

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 the rules concerning advertising are clear and people are not in compliance with the rules.

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 asked for clarification of the term "deviate sexual intercourse."

Department Response--The proposed rule §117.92 states that this term "deviate sexual intercourse" has the meaning as described in Penal Code, Chapters 21, 22, and 43. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like to know if the Department is complaint-driven or if the department will conduct inspections.

Department Response--As described in proposed rule §117.110, any person may file a complaint with the department alleging that a license holder has violated the law or rules. As described in proposed rules §117.55 and §117.82(f), the department will be conducting regular inspections of massage therapy schools and massage therapy establishments. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter expressed concerns that proposed rule §117.111(c) could allow a person charged with certain criminal offenses to continue to practice until the person's criminal case is resolved. The commenter suggested that the Department should revoke the license of a person prior to the outcome of the criminal proceeding.

Department Response--The Department has no authority to revoke a license except as described by law under Chapter 455 of the Occupations Code. The proposed rules reflect the statutory authority afforded to the department found in Occupations Code, §455.251 (Ground for License Denial or Disciplinary Action). The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter recounted two situations of possible violations and described the criminal history criteria the commenter uses for massage school admission.

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.

Education & Exam Related Comments

Comment--One commenter asked the Department to continue using the Massage and Bodywork Licensing Examination.

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 would like support to be afforded to persons who do not speak English.

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 would like to know if there will be a per course fee for continuing education providers.

Department Response--All fees associated with the administration of the Massage Therapy Program are indicated in proposed rule §117.100. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asks what the process will be for submitting continuing education courses to the department for approval.

Department Response--Requirements for continuing education providers are covered in proposed rule §117.34. As is currently in place at the Department of State Health Services, the proposed rule requires approved continuing education providers to offer courses that are in compliance with the rules, but it does not require approval of individual courses. This comment is about process and 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 suggested using a mandatory reporting system for continuing education providers instead of an audit system.

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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The existing Department of State Health Services rule utilizes an audit system for continuing education. The Department did not make any changes to the proposed rules in response to this comment.

Comment--Once commenter expressed concern that current continuing education providers are not being audited.

Department Response--Under proposed rule §117.34(f), the Department may audit approved continuing education providers to ensure compliance. 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 asked about the process for approval and the cost for the 30-hour course on teaching adult learners under proposed rule §117.40.

Department Response--Proposed rule §117.40(a)(4) sets out the acceptable options for the 30-hour course on teaching adult learners. One option is a continuing education course. Requirements for continuing education providers are covered in rule §117.34. As is currently in place at the Department of State Health Services, the proposed rule requires approved continuing education providers to offer courses that are in compliance with the rules, but it does not require approval of individual courses. This comment is about process and 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 the Department continuing to require those who teach massage to both obtain a Massage Therapy Instructor License and become an Approved Continuing Education Provider is economically burdensome for continuing education providers.

Department Response--Not all approved continuing education providers choose to offer courses in massage therapy techniques. For those who do, the Department believes that meeting the experience and education requirements for massage therapy instructor licensure will ensure quality and appropriate instruction. The proposed rule at §117.31(b)(1) reflects the existing Department of State Health Services rule on this topic. 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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asked specifically about the types of courses that will be accepted for continuing education credit.

Department Response--Subchapter D of the proposed rules sets out requirements relating to continuing education, including acceptable and unacceptable course content. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter would like to know how to renew their license because their school has closed and they no longer have a transcript.

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.

Other Related Comments

Comment--One commenter asked when licenses will become effective.

Department Response--Licenses issued by the Department of State Health Services will remain valid until its expiration. When a licensee renews on or after November 1, 2017, the licensee will receive a license from the Texas Department of Licensing and Regulation and the license will become effective upon the Department's approval of the application. This information will be updated daily on the Department's website. 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 would like information provided by the Department to be provided faster and updated in real time.

Department Response--The Department strives to provide on-line licensure information and process applications in a timely manner. 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 would like specific guidelines on use of hydrotherapy, table-showers, and Vichy showers.

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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. 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 would like the consultation document to be regarded and kept confidential in the same manner as physician records.

Department Response--Protected health information is confidential under both state and federal law. The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter asked for points of contact with the Department.

Department Response--The Department's contact information is available on its website. 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 clarified that, contrary to the impression left by her previous comment, she did not change her curriculum, but instead added to it.

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 asked for clarification of exemptions for massage therapy schools.

Department Response--Exemption from licensing are provided for in statute under Occupations Code, Chapter 455, §455.155. The Department did not make in changes to the proposed rules in response to this comment.

At the Commission meeting held on August 18, 2017, three commenters made comments regarding the proposed rules. The comments are summarized below.

Comment--The first commenter expressed concern with the current definition of "massage therapy" as defined in Chapter 455 of the Occupations Code and would like to see it changed to be less ambiguous and link massage therapy with healthcare.

Department Response--The Department lacks authority to revise the definition of a term that is defined by statute. 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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department did not make any changes to the proposed rules in response to this comment.

Comment--The second commenter asked if the jurisprudence exam will still be required for massage therapists when the program is transferred to the Texas Department of Licensing and Regulation. Additionally, the commenter would like to see a reduction in the level of specificity in the rules for schools and what they are required to teach and how they are to operate. The commenter asked how the Department will be interpreting proposed rule §117.51 relating to massage school locations. Finally, the commenter would like to see a change to proposed rule §117.59(k) that prohibits compensation for massage therapy students who provide massage services.

Department Response--The proposed §117.22 requires a massage therapist to pass a jurisprudence exam before being issued a license and this requirement will not change on November 1, 2017. 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. At this time, the proposed rules do not create any additional burdens or make any substantive changes for existing or prospective licensees. The Department intends to review the rules again once the program is officially transferred to ensure effective and efficient operation of the Massage Therapy Program. The Department did not make any changes to the proposed rules based on this comment.

Comment--The last commenter wanted to express his gratitude for the transparency, responsiveness and information provided by the Department.

Department Response--The Department appreciates this comment. The Department did not make any changes to the proposed rules based on this comment.

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

During the rulemaking process the Department conducted a fee analysis on the Massage Therapy 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 following fees for: massage therapists renewal application fee from $100 to $75; all other establishment applicants initial application fee from $300 to $200 and the renewal application fee from $300 to $200; massage schools offering the massage therapy educational program initial application fee from $2,800 to $1,500, renewal application fee from $2,000 to $1,000, change of instructional address from main campus fee from $375 to $300, application fee for an additional massage school location separate from the main campus from $750 to $500, and renewal fee for an additional massage school location separate from the main campus from $750 to $500; and massage therapy instructors initial application fee from $200 to $100 and renewal application fee from $200 to $100. 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 $483,775 of lost revenue to the state each year.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §117.1, §117.2

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703578

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


SUBCHAPTER C. LICENSED MASSAGE THERAPIST

16 TAC §§117.20 - 117.24

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703579

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


SUBCHAPTER D. CONTINUING EDUCATION

16 TAC §§117.30 - 117.34

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703580

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


SUBCHAPTER E. LICENSED MASSAGE THERAPY INSTRUCTORS

16 TAC §117.40, §117.41

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703581

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


SUBCHAPTER F. LICENSED MASSAGE SCHOOLS

16 TAC §§117.50 - 117.68

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

§117.55.Massage School Inspections.

(a) There will be at least one unannounced inspection at the primary instructional location of each massage school and at each additional location every year.

(b) Other inspections may be performed, announced or unannounced, at the discretion of the department.

(c) If deficiencies are found, the massage school shall be notified at the end of the inspection of the deficiencies in writing. If deficiencies are not serious or do not raise health and safety concerns, the department shall give the educational program thirty (30) days to correct the deficiencies.

§117.57.Massage School License Renewal.

(a) The license of a massage school is valid for a two-year period beginning on the date of issuance of the initial license.

(b) To renew a massage school license, the licensee must submit:

(1) the renewal fee prescribed under §117.100;

(2) the completed renewal application on a department-approved form;

(3) the complete annual financial statements for the most recently completed fiscal year, demonstrating the massage therapy educational program is financially stable and capable of fulfilling its commitments for instruction; and

(4) any other information deemed necessary by the department to determine compliance with the Act and this subchapter.

(c) At least thirty (30) days before the license expiration date, the department shall send a notice of the expiration date and the amount of the renewal fee due. The notice will be mailed to the address in the department's records. Each massage school must file a renewal form in a manner prescribed by the department.

(d) The department shall issue a renewal license to a massage school once all renewal requirements are met.

(e) A massage school which operates a massage therapy educational program with an expired license may be subject to disciplinary action. Course hours taught during the time the license is expired will not apply toward the minimum 500-hour course of instruction. For the purpose of establishing the date of late renewal, the postmark date shall be considered the date of mailing.

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 11, 2017.

TRD-201703582

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


SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS

16 TAC §§117.80 - 117.85

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703583

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


SUBCHAPTER H. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS

16 TAC §§117.90 - 117.93

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703584

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


SUBCHAPTER I. FEES

16 TAC §117.100

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

§117.100.Fees.

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

(b) Fees related to massage therapists are as follows:

(1) initial application fee--$100;

(2) renewal application fee (for two-year license)--$75.

(c) Fees related to massage establishments are as follows:

(1) initial application fee:

(A) for each massage school primary instructional location or approved additional location--$100;

(B) for all other establishment applicants--$200;

(2) renewal application fee (for two-year license):

(A) for each massage school primary instructional location or approved additional location--$100;

(B) for all other establishment renewal applicants--$200.

(d) Fees related to massage schools offering the massage therapy educational program are as follows:

(1) initial application fee (includes inspection)--$1,500;

(2) renewal application fee (for a two-year period)--$1,000;

(3) change of instructional address for main campus (includes inspections)--$300;

(4) application fee for an additional massage school location separate from the main campus (includes inspection) --$500; and

(5) renewal fee for an additional massage school location separate from the main campus--$500.

(e) Fees related to massage therapy instructors are as follows:

(1) initial application fee--$100;

(2) renewal application fee (for a two-year period)--$100;

(f) The fees related to approved providers for continuing education are as follows:

(1) initial application fee--$200;

(2) renewal application fee (for a two-year period)--$200.

(g) A duplicate/replacement fee for licenses issued under this chapter is $25.

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

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

(j) Late renewal fees for licenses 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 11, 2017.

TRD-201703585

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


SUBCHAPTER J. ENFORCEMENT PROVISIONS

16 TAC §§117.110 - 117.112

The new rules are adopted under Texas Occupations Code, Chapters 51 and 455, 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, Chapters 51 and 455. No other statutes, articles, or codes are affected by the adoption.

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 11, 2017.

TRD-201703587

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