Massage Therapy Program Proposed Administrative Rules

Please note: The text below has been updated to accurately reflect the proposed rule changes published in the Texas Register. This text previously contained errors.

Chapter 117. Massage Therapy

Proposal Filed: November 9, 2020 – Published in the Texas Register: November 20, 2020
Deadline for Public Comment: December 21, 2020
Underlined text is new language.

[ Strikethrough text ] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 117, Subchapter C, §117.20 and §117.24, Subchapter D, §117.30 and §117.31, Subchapter F, §117.64, Subchapter G, §117.82, Subchapter H, §117.90 - §117.92; and new rule at Subchapter D, §117.35 regarding the Massage Therapy Program. These proposed changes are referred to as “proposed rules.”

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 117 implement Texas Occupations Code, Chapter 455.

The proposed rules are necessary to implement House Bill (HB) 2059, 86th Legislature, Regular Session (2019). HB 2059 requires massage therapists and other health care practitioners to complete a human trafficking prevention training course in order to renew their license. The Executive Commissioner of the Health and Human Services Commission (HHSC) approves human trafficking prevention courses, including at least one course that is available without charge, and posts a list of approved courses on the HHSC website. The statutory provisions created by HB 2059 are located in Texas Occupations Code, Chapter 116. The proposed rules implement this training requirement and allow the training to count for up to three hours of continuing education during each license term. The proposed rules also clearly require that a new written consent be obtained before each session involving breast massage of a female client. Additionally, the proposed rules make clean-up and clarification changes designed to update the rules and make them easier to understand.

The proposed rules were presented and discussed at the Massage Therapy Advisory Board at its meeting on October 29, 2020. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §117.20 by requiring massage therapist applicants to ensure that a certified transcript or other record of all relevant coursework is submitted to the Department. This change allows for massage schools in Texas to send a record of coursework electronically to the Department, through the new PALMS system for reporting hours and enrolled students. The proposed change also allows applicants from out-of-state schools to send the Department a certified transcript.

The proposed rules amend §117.24 by requiring massage therapists to complete an HHSC-approved human trafficking prevention training and provide proof of completion to renew their massage therapist license. This training must be completed before each license renewal.

The proposed rules amend §117.30 by correcting a typographical error.

The proposed rules amend §117.31 by re-wording subsection (a) for clarity.

The proposed rules add new §117.35, which would allow an HHSC-approved human trafficking prevention training course to count for up to three hours of continuing education credit each license term. Providers of an HHSC-approved human trafficking prevention training course would not be required to obtain department approval as a continuing education provider and would not be required to comply with the requirements of §117.34.

The proposed rules amend §117.64 to require massage schools to provide certified, rather than certified or original, copies of student transcripts on request, for a reasonable charge, if the student has fulfilled the financial obligation to the school.

The proposed rules amend §§117.82, 117.90, and 117.92 to refer to the new written consent that must be obtained before each massage therapy session involving breast massage of a female client.

The proposed rules amend §117.91 to clearly require a new written consent be obtained before each session involving breast massage of a female client. The proposed rules also re-title §117.91 to refer to written consent.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, 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. The proposed rules will not affect the amount of resources or personnel needed by the Department, and local governments do not enforce or administer the proposed rules.

Mr. Couvillon 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. The proposed rules will not increase or decrease the amount of fees paid to the Department, and local governments do not enforce or administer the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon 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 Texas Government Code §2001.022. The human trafficking prevention training course required by HB 2059 and the proposed rules is applicable to all geographical areas of Texas and may be completed without cost to the licensee. Additionally, the proposed rules will not change the process of becoming a massage therapist or obtaining a massage therapist license and will not change the number of individuals who are seeking to become licensed massage therapists. Therefore, the proposed rules will not have an impact on local employment.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be training licensees to identify the signs of human trafficking and assist in the prevention of human trafficking. Additionally, several rule language corrections and improvements will make the rules clearer and easier to understand. The proposed changes also take into account that Texas massage schools will submit electronic records of coursework to the Department, and the proposed rules clarify that massage schools must make available certified transcripts rather than the original transcript itself. Finally, the proposed rules add language to clearly require a new written consent before each session involving breast massage of a female client. This sets clear expectations regarding each session for both the client and the licensee.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon 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. HB 2059 requires HHSC to approve at least one human trafficking prevention course that is available free of charge. Other changes in the proposed rules are designed to correct errors and clarify and update the rule language. They will not impose costs on any person or entity. Additionally, the Department does not anticipate any economic costs as a result of the requirement for a new written consent before each session involving breast massage of a female client. The Department does not prescribe a particular format for the written consent, and not all massage therapists offer this service. Any costs associated with updating forms or documents would be discretionary in nature, and costs would be minimal if the form is needed.

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 rules. The Department regulates massage therapists, massage establishments, schools, and continuing education course providers, some of which may operate a micro or small business.

The proposed rules do not impose additional fees on these businesses, nor do they create requirements that would cause small or micro-businesses to expend funds for equipment, staff, supplies, or infrastructure, other than printing a form if a breast massage will be performed on a female client. It is not anticipated that this will have any adverse economic effect. Moreover, although massage therapists will be required to expend time completing a human trafficking training, this requirement is imposed by HB 2059, and any cost of attending the required course once every two years will not have an adverse impact on a small or micro-business or rural community. Finally, the proposed rules will not decrease the availability of licensed massage therapists in rural communities or increase the cost of their services in these communities. 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 a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

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

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

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 rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

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 do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do create a new regulation. The proposed rules add new §117.35, which would allow an HHSC-approved human trafficking prevention training course to count for up to three hours of continuing education credit each license term. Providers of an HHSC-approved human trafficking prevention training would not be required to obtain department approval as a continuing education provider and would not be required to comply with §117.34.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules implement HB 2059 by expanding the renewal requirements for massage therapists. Licensed massage therapists must complete human trafficking prevention training for each license renewal. Additionally, the proposed rules expand the written consent requirements relating to breast massage. Under the proposed rules, a new written consent must be obtained before each session involving breast massage of a female client.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules’ applicability.

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

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner’s rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department’s website at https://ga.tdlr.texas.gov:1443/form/gcerules ; by facsimile to (512) 475-3032; or by mail to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 455, which authorize the Texas Commission of Licensing and Regulation, 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 proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 455. No other statutes, articles, or codes are affected by the proposed rules.

SUBCHAPTER C. LICENSED MASSAGE THERAPIST AND STUDENT PERMIT.

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

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

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

(2) pay the fee required under §117.100;

(3) be at least 18 years of age;

(4) ensure that a certified transcript or other record of all relevant course work is submitted to the department [ submit a transcript(s) of all relevant course work, acceptable to the department ];

(5) provide proof of successfully passing the required exam;

(6) provide proof of successfully passing the jurisprudence exam;

(7) successfully pass a criminal history background check performed by the department in accordance with the Act, the department’s criminal conviction guidelines, and pursuant to Texas Occupations Code, Chapters 51 and 53; and

(8) satisfactorily complete massage therapy studies in a minimum 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 internship program.

(b) - (g) (No change.)

§117.24. Massage Therapist License Term; Renewals.

(a) (No change.)

(b) To renew a massage therapist license, a licensee must:

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

(2) complete all applicable continuing education requirements; [ and ]

(3) submit all applicable fees as prescribed under §117.100; and [ . ]

(4) complete the human trafficking prevention training required under Occupations Code, Chapter 116, and provide proof of completion as prescribed by the department. This training must be completed before each renewal.

(c) - (e) (No change.)

SUBCHAPTER D. CONTINUING EDUCATION.

§117.30. Massage Therapist Continuing Education--Hours.

(a) Massage therapists [ therapist ] must successfully complete at least twelve hours of approved continuing education per license term.

(b) - (c) (No change.)

§117.31. Massage Therapist--Approved Continuing Education Courses and Providers.

(a) Acceptable continuing education includes attendance at and completion of department-approved or -recognized[ , ] institutes, seminars, workshops, state or national conferences, associations, courses provided by an approved massage therapy school, or college and university academic courses . These programs must be designed to increase and enhance professional knowledge, skills, or competence in the practice of massage therapy. The subject matter must be [ that are ]:

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

(2) first aid and/or CPR, not to exceed six hours total each renewal period; or

(3) advanced massage therapy or bodywork techniques acceptable to the department. [ ; and ]

[ (4) designed to increase and enhance professional knowledge, skills, or competence in the practice of massage therapy. ]

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

§ 117.35. Continuing Education Credit for Human Trafficking Prevention Training.

(a) Notwithstanding any other provision in this chapter, a human trafficking prevention training course approved by the Health and Human Services Commission (HHSC) in accordance with Occupations Code, Chapter 116, will count as acceptable continuing education.

(b) No more than three hours of credit per license term may be awarded for completing human trafficking prevention training. The number of hours credited will be determined by the number of hours indicated on the certificate of completion, or, if the number of hours is not indicated, by the amount of time the course takes to complete, as determined by the department.

(c) A provider of an HHSC-approved human trafficking prevention training course is not required to obtain department approval as a continuing education provider or comply with the requirements of §117.34.

SUBCHAPTER F. LICENSED MASSAGE SCHOOLS.

§117.64. Massage School Transcripts and Records.

(a) - (c) (No change.)

(d) Each massage school shall maintain student transcripts of academic records permanently. Certified [ Original or certified ] copies of transcripts (official transcripts) shall be available to students and any person authorized by the student at a reasonable charge if the student has fulfilled the financial obligation to the school. Transcripts must be made available to students who have satisfied the terms of the enrollment agreement within ten (10) calendar days of the date the terms are satisfied. The transcript of a student shall include the following:

(1) name and license number of massage therapy educational program;

(2) the name of the student;

(3) student's social security number;

(4) student's date of birth;

(5) inclusive dates of attendance;

(6) list of subjects and number of course hours taken by the student at the massage school;

(7) dates of courses;

(8) address of student;

(9) signature of the school owner or designated contact person; and

(10) pass/fail score.

(e) (No change.)

SUBCHAPTER G. LICENSED MASSAGE ESTABLISHMENTS.

§117.82. Massage Establishments--General Requirements.

(a) - (g) (No change.)

(h) A massage establishment shall:

(1) properly maintain and secure for each client the initial consultation documents, all session notes, written consent documents, and related billing records; and

(2) maintain a current list of all establishment employees and/or contractors at all times which includes:

(A) full name; and

(B) license number and expiration date (if licensed as a massage therapist).

(i) For purposes of this section:

(1) "Nude" means a person who is:

(A) entirely unclothed; or

(B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts or any portion of the genitals or buttocks.

(2) "Sexual contact" includes:

(A) any touching of any part of the genitalia or anus;

(B) any touching of the breasts of a female client, unless the touching is breast massage that is specifically authorized by the client as required [ through the signed consultation document referenced ] in §117.91;

(C) any offer or agreement to engage in any activity described in subparagraph (A) or (B);

(D) kissing;

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

(F) any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or

(G) inappropriate sexual comments about or to a client, including sexual comments about a person's body.

(j) - (k) (No change.)

SUBCHAPTER H. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS.

§117.90. General Ethical Requirements.

(a) - (t) (No change.)

(u) A licensee shall provide draping and treatment services sufficient to protect a client’s safety, comfort, and privacy, and must drape:

(1) the genital area and gluteal cleavage of all clients at all times [ time ] and

(2) the breasts of female clients at all times, unless performing breast massage that is [ as ] specifically authorized by the client as required [ through the signed consultation document referenced ] in §117.91.

§117.91. Consultation Document and Written Consent.

(a) A licensee shall provide an initial consultation to each client before the first massage therapy session and obtain the signature of the client on the consultation document. The consultation document shall include:

(1) the type of massage therapy services or techniques the licensee anticipates using during the massage therapy session;

(2) the parts of the client's body that will be massaged or the areas of the client's body that will be avoided during the session, including indications and contraindications;

(3) a statement that the licensee shall drape the breasts of all female clients and not engage in breast massage of female clients unless the client gives [ without the ] written consent before each session involving breast massage [ of the client ];

(4) a statement that draping of the genital area and gluteal cleavage will be used at all times during the session for all clients;

(5) a statement that if uncomfortable for any reason, the client may ask the licensee to cease the massage and the licensee will end the massage session; and

(6) the signature of both the client and the licensee.

(b) (No change.)

(c) A licensee shall obtain a new written consent, signed and dated by the client, before each session in which breast massage of a female client will be performed. This written consent may be documented on a new consultation document or in a separate document.

§117.92. Sexual Misconduct.

(a) A licensee shall not engage in sexual contact during a session with a client. For the purposes of this section, sexual contact includes:

(1) any touching of any part of the genitalia or anus;

(2) any touching of the breasts of a female client, unless the touching is breast massage that is specifically authorized by the client as required [ through the signed consultation document referenced ] in §117.91;

(3) any offer or agreement to engage in any activity described in paragraph (1) or (2);

(4) kissing;

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

(6) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual; or

(7) inappropriate sexual comments about or to a client, including making sexual comments about a person's body.

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

REVIEW BY AGENCY COUNSEL

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 November 9, 2020.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation