Massage Therapy Program Proposed Administrative Rules

Chapter 117. Massage Therapy
Published in the Texas Register:  January 12, 2018
Deadline for Public Comment: February 12, 2018

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.

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.

SUBCHAPTER A. GENERAL PROVISIONS.

§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.

SUBCHAPTER B. MASSAGE THERAPY ADVISORY BOARD

§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.

SUBCHAPTER C.  LICENSED MASSAGE THERAPIST

§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.) 

SUBCHAPTER E. LICENSED MASSAGE THERAPY INSTRUCTORS

§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.) 

SUBCHAPTER F.  LICENSED MASSAGE SCHOOLS

§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.) 

SUBCHAPTER G.  LICENSED MASSAGE ESTABLISHMENTS.

§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.)

SUBCHAPTER J.  ENFORCEMENT PROVISIONS

§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.)

REVIEW BY AGENCY COUNSEL

This agency hereby certifies that the proposed rules have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

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


Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation