Massage Therapy Program Proposed Administrative Rules

Chapter 117. Massage Therapy
Proposal Filed: September 30, 2019 – Published in the Texas Register: October 11, 2019
Deadline for Public Comment: November 11, 2019

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 A, §117.2; Subchapter C, §§117.20, 117.21, and 117.23; Subchapter D, §117.31; Subchapter E, §117.40; Subchapter F, §§117.50 - 117.55, 117.57 - 117.59, 117.61, 117.62, and 117.64 - 117.68; Subchapter G, §§117.80, 117.82, and 117.83; Subchapter H, §§117.90, 117.91, and 117.93; Subchapter I, §117.100; new rule Subchapter C, §117.25; and the repeal of Subchapter F, §117.56 and §117.60, regarding the Massage Therapy Program.

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed rules implement necessary changes required by House Bill (HB) 1865 and HB 2747, 86th Legislature, Regular Session (2019).

As required by HB 1865, the proposed rules remove the five-year ban to obtain a license for violations of Chapter 455, Texas Occupations Code; require fingerprint criminal history checks; create a student permit and provides for a fee; and require massage schools report to the Department monthly student progress reports.

As required by HB 2747, the proposed rules prohibit residing on the premises of a licensed massage establishment; require a photograph on the licenses of massage therapists; and require the posting of human trafficking information in massage schools and establishments.

The proposed rules include recommendations from the Massage Therapy Advisory Board (Advisory Board) Standard of Care workgroup to address draping standards and remove the prohibition on using testimonials in advertisements as addressed in two opinions issued by the Office of the Attorney General (JC-0342 and JC-0458).

The proposed rules also include recommendations from the Advisory Board's Education and Examination workgroup to reduce regulatory burdens and streamline processes and procedures for massage schools to provide more efficiencies and clarity to the industry.

The proposed rules were presented to and discussed by the Advisory Board at its meeting on August 29, 2019. 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 §117.2, adding a definition for “linens” to provide clarity for health, safety, and sanitation standards for massage schools and establishments and add a definition for “student permit” as created by HB 1865.

The proposed rules amend the title of Subchapter C, adding student permit, as created by HB 1865.

The proposed rules amend §117.20 ,adding that criminal history background checks must be done in accordance with the Department’s criminal conviction guidelines and Chapter 455, Chapter 51, and Chapter 53 of the Texas Occupations Code. The proposed rules establish the fingerprint requirements for criminal history background checks as required by HB 1865 by adding statutory language to the rule.

The proposed rules amend the title of §117.21, replacing the term “reciprocity” with the term “substantial equivalence,” which more accurately reflects the process by which the Department evaluates applicants from another state.

The proposed rules amend §117.23, adding the requirement to attach a current photo to an individual massage therapist license as required by HB 2747.

The proposed rules add a new §117.25, outlining the general requirements, application process, and license term for student permits as created by HB 1865.

The proposed rules amend §117.31, updating the list of acceptable entities that provide continuing education courses to include those offered by associations and by approved massage therapy schools, instead of having a separate process for approval of individual advanced course work. This will provide clarity for licensees as to what is acceptable continuing education when taken through an acceptable entity, instead of on a course by course basis.

The proposed rules amend §117.40, making a clerical change by fixing a typo.

The proposed rules amend §117.50, removing regulatory burdens for massage school by streamlining the requirements and application process to require only necessary documentation for proof of ownership or lease agreements and financial stability. The proposed rules add that adequate space and equipment must be provided to students, that schools must comply with health and safety standards, and submit information on the school’s designated contact person, if applicable, to the general requirements for an applicant. The proposed rules add requirements for schools when accounting for student hours and the requirement to report on student progress to the Department in accordance with HB 1865. The proposed rules also add that criminal history background checks must be done in accordance with the Department’s criminal conviction guidelines and Chapter 455, Chapter 51, and Chapter 53 of the Texas Occupations Code. The proposed rules establish the fingerprint requirements for criminal history background checks as required by HB 1865 by adding statutory language to rule.

The proposed rules amend §117.51, streamlining the application process for additional massage school locations to match the application process for opening a massage school, clarifying outdated language by properly referencing a massage school and not a massage therapy education program, and adding the current process to change the location of an established massage school to rule.

The proposed rules amend §117.52, clarifying that a massage school must apply for a new massage school license thirty (30) days prior to changing ownership and outlining more clearly what actions may constitute a change of ownership.

The proposed rules amend §117.53, updating outdated language, outlining the process for massage schools using a time clock for tracking student progress and reporting as required by HB 1865, and adding the requirement that a massage school must display a human trafficking sign, as required by statute, that is acceptable to the Department.

The proposed rules amend §117.54, updating the title and including recommendations from the Massage Therapy Advisory Board Education and Examination workgroup to streamline the health and safety requirements for massage schools and provide licensees with more clarity. These changes include removing outdated requirements, using more appropriate terminology, and combining redundant provisions.

The proposed rules amend §117.55, updating inspection requirements to ensure student records are properly maintained because of the creation of a student permit in HB 1865 and providing more details on the process for corrective modifications after school inspections for clarity.

The proposed rules repeal §117.56, removing an overly burdensome process from rule and the requirement for financial stability has been simplified and moved to the general requirements for applicants for massage schools.

The proposed rules amend §117.57, adding that criminal history background checks must be done in accordance with the Department’s criminal conviction guidelines and Chapter 455, Chapter 51, and Chapter 53 of the Texas Occupations Code. The proposed rules also update outdated language for clarity and add that notices may be emailed.

The proposed rules amend §117.58, streamlining the rules to use one term for the massage schools contact person.

The proposed rules amend §117.59, updating outdated language, making clerical changes, and removing the hours cap and approval process for courses and internships. Chapter 455, Texas Occupations Code, provides that the Department shall issue a license to an applicant that presents evidence satisfactory to the Department that they have completed massage therapy studies in a 500-hour minimum course. There is no statutory requirement that the course or internship be capped or separately approved.

The proposed rules repeal §117.60, removing a regulatory burden for schools approved to be course providers and will no longer require additional approval of specific courses.

The proposed rules amend §117.61, removing the burden of submitting copies of admission requirements to the Department and clarifying the process for transcript review.

The proposed rules amend §117.62, removing the requirement that enrollment information include information about being ineligible for a license until the fifth anniversary of the date of conviction for a violation of the Act as removed by HB 1865, updating out of date terminology, and adding requirements for student permits created by HB 1865.

The proposed rules amend §117.64, updating out of date language, adding procedures for schools to report progress to the Department that use time clocks, and removing redundant student registry requirements due to the creation of student permits and reporting requirements as required by HB 1865.

The proposed rules amend §117.65, rewording the section for clarity.

The proposed rules amend §117.66, updating the massage school refund language to reflect current language and process used to determine and calculate refunds.

The proposed rules amend §117.67, outlining the process for reporting of student progress to the Department as required by HB 1865.

The proposed rules amend §117.68, removing a requirement for termination of students based on absences that is outdated and confusing and updating the language of the rule.

The proposed rules amend §117.80, adding that criminal history background checks must be done in accordance with the Department’s criminal conviction guidelines and Chapter 455, Chapter 51, and Chapter 53 of the Texas Occupations Code. The proposed rule amendment establishes the fingerprint requirements for criminal history background checks, as required by HB 1865, by adding statutory language to rule.

The proposed rules amend §117.82, adding the requirement for massage establishments to post a sign with human trafficking information and prohibiting residing on the premises of massage establishments as required by HB 2747.

The proposed rules amend §117.83, streamlining sanitation requirements for massage establishments by removing outdated requirements, using more appropriate terminology, and combining redundant provisions.

The proposed rules amend §117.90, adding required draping standards.

The proposed rules amend §117.91, adding information on draping standards to the requirements for the consultation document.

The proposed rules amend §117.93, removing the prohibition on testimonials being used in advertisements in response to two Office of the Attorney General opinions.

The proposed rules amend §117.100, adding the fee for student permits, as created by HB 1865, and updating language for clarity.

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 are necessary to implement changes made by House Bill (HB) 1865 and HB 2747, 86th Legislature, Regular Session (2019). These statutory changes requiring a massage student to obtain a permit and a massage school to maintain monthly student progress reports will require the Department to update its current licensing database system and build an online portal which will allow the schools to submit that progress, course completion, and exam eligibility to the Department online. However, the Department will replicate the portal which currently exists for similar reporting requirements in the barbering and cosmetology programs and will build that replica with existing resources.

HB 2747 requires massage establishments and schools to post signs concerning services and assistance available to victims of human trafficking and for the signs to be in multiple languages. In order to alleviate the cost to establishments and schools, the Department will develop and provide the required sign free of charge in both a downloadable and printable format in multiple languages.

Although the Department will issue approximately 2,400 student permits each year, these permits have no requirements which must be reviewed, other than enrollment in a massage school. The Department will not need additional personnel or resources to issue the student permits.

It is estimated that the remaining statutory requirements will result in minimal costs, if any, to the state. The activities required to implement the proposed rule changes are one-time program administration tasks that are routine in nature, such as modifying or revising forms, publications, or website information. There will be no additional estimated costs because of the changes to the listed responsibilities for licensees, the code of ethics, the consultation document, and the repeal of the prohibition of a testimonial in advertising.

There is no anticipated reduction in costs to the state. A reduction in costs only results when duties and functions are removed from the Department by the rules. The only requirement proposed to be removed from the rules which could cause a reduction in costs is the removal of the five-year ineligibility for licensure of a person who has been convicted of a violation of the statute. However, not enough of these license denials occur each year to result in a reduction in workload.

Local government does not regulate state licensure of massage therapy. Some local governments do have local ordinances that require certain businesses to obtain a permit to operate, and that may include businesses that provide massage therapy services. However, there would be no additional costs or reductions for 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 is no estimated loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

A loss in revenue only results when fees paid to the Department are removed by the rules. No fees are removed by the proposed rules. There is no anticipated revenue loss to local governments because fees associated with the program are remitted to the state and not to local governments. Additionally, for each of the first five years the proposed rules are in effect, there is no estimated increase in revenue to local governments.

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 will be an estimated increase of revenue to the state as a result of the statutory changes made by HB 1865. There will be an increase in revenue to the state because of the fees collected from student permit applications. There has been an average of 2,345 initial massage therapist licenses issued each year over the past five years and it can be assumed a similar number of students will enter massage schools each year. Applicants for student permits will pay a $25 application fee. Assuming the number of applicants for student permits each year will be close to the number of applicants for an initial massage therapy license each year, the annual revenue increase in the first year will be approximately $35,000, adjusted to account for the June 1, 2020 start date for students to hold permits, and subsequently approximately $58,625 per year.

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 Government Code §2001.022. The Massage Therapy Program regulates individuals and businesses who provide massage therapy services and training across the state. The proposed rules would not change the number of individuals who would seek a license or would be licensed to perform massage therapy or change the number of licensees who would perform services for the public, and therefore would have no anticipated impact on local employment.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be through more effective regulation of the massage therapy industry and profession. Future applicants and current licensees will be required to submit fingerprints to undergo a criminal history background check through the Department of Public Safety and the Federal Bureau of Investigation. Fingerprints background checks will allow for a more certain and detailed criminal history background check and will mean the public will know that the licensee performing their services have not been convicted of dangerous crimes.

Creation of the student permit will allow the Department to know who is enrolled in massage schools, receiving massage therapy education, and track the progress of each student. This will also provide an avenue for the Department to ensure that massage schools are not selling hours to students for licenses.

Requiring draping at all times would protect a client’s safety, provide comfort and maintain privacy, and requiring statements about draping in the consultation document would allow a potential client to know that draping is required at all times.

The proposed removal of the rule prohibiting testimonials in advertising would allow providers to enhance their advertising, thereby possibly increasing business and revenue, and would provide the public more information about a massage establishment and/or therapist to aid in the selection a licensed establishment and/or therapist.

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 will be additional one-time costs to persons who are required to comply with the proposed rules. The implementation of HB 1865 will have a one-time cost of $39 for individuals applying for an initial or renewal massage therapist, massage establishment, or massage school license to submit a set of fingerprints to the Department of Public Safety and for that Department to conduct a state and federal criminal history background check.

Individuals enrolling in a massage school will pay an application fee of $25 to obtain a student permit.

Massage establishments will be required to display a sign concerning services and assistance available to victims of human trafficking. The Department will provide the required sign free of charge in both a downloadable and printable format in multiple languages, so there will be no cost to establishments.

All therapist licenses and student permits will be required to have a current photograph of the therapist attached to the license, or of the student attached to the permit. The cost to accomplish this will be de minimis or none.

All massage schools will be required to report student progress to the Department. Schools may use a time clock to track progress or records of attendance. Schools that do not possess a time clock are not required to purchase one.

All massage schools will be required to maintain an album or database that contains the student permit and a photograph of each student. The cost to accomplish this will be de minimis or none.

Costs for licensees because of the change in draping requirements and consultation document content are expected to be negligible, if any. Sheets or towels are already provided to clients in massage establishments and other locations where massage services take place. The therapist must simply ensure the towel or sheet drapes the required areas at all times. Consultation documents are usually printed at the time services are being discussed and agreed upon. Any establishments which use pre-printed consultation documents will be allowed to attach an addendum or notate on the document in some manner the newly-required language. Establishments which use pre-printed consultation documents will be allowed to use those documents until they have all been used.

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

There will be no adverse effect on rural communities as a result of the proposed rules. However, there will be an adverse effect on small businesses or micro-businesses as a result of the proposed rules. Since the agency has determined that the proposed rule will have an adverse economic effect on small businesses or micro-businesses, the agency has prepared an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed and required under Texas Government Code §2006.002.

Economic Impact Statement:

There are 29,607 massage therapists, 2,434 massage establishments, 1,380 massage therapy instructors, and 72 massage schools, including 7 branch locations. Although the Department does not track how many of these license holders are small or micro-businesses, it is estimated that most of them are either a small or micro-business.

The Department licenses businesses that provide massage therapy education or services and training and could qualify as a micro-business or a small business. However, the Department is unable to project the number of massage therapist, massage establishment and massage school license holders who would qualify as small businesses or micro-businesses. The proposed rule will require a therapist and an owner or owners of a massage establishment or school to submit fingerprints for a criminal history background check in order to be licensed. The cost for the fingerprinting process and background check is $39. Although this will be a cost to small and micro-businesses, this cost is a result of the statutory requirement created by HB 1865. All fingerprint criminal history background checks are submitted to and conducted by the Department of Public Safety (DPS), and DPS determines the method and cost for the submission of the fingerprints. No alternative method or cost is available for small and micro-businesses to comply with the statute.

The fee for the submission of the fingerprints and the background check is a one-time fee and license holders will not have to pay for another background check during license renewals.

Regulatory Flexibility Analysis:

There are no alternative methods of accomplishing the objective of the proposed rule requiring the submission of fingerprints to DPS and the payment of the accompanying fee. The Massage Therapy statute and HB 1865 require all current and future applicants for a massage therapy license to submit fingerprints to DPS for a background check, and pay the fee determined by DPS. TDLR is unable to consider any alternative methods of achieving the purpose of the rule or statute or proposing methods of reducing the adverse impact of a proposed rule.

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

The proposed rules do have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government; however, the proposed rules fall under the exception for rules that are necessary to implement legislation under §2001.0045(c)(9). 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 require an increase or decrease in fees paid to the agency due to the creation of student permits by HB 1865. There will be an increase in fees paid to the Department through the student permit application fee.

5. The proposed rules do create a new regulation. The implementation of HB 1865 and HB 2747 will create new regulation requiring an individual enrolled in a massage school on or after June 1, 2020 to hold a student permit; requiring each applicant for a massage therapist, massage establishment, and massage school license to submit a complete and legible set of fingerprints; requiring a massage school to maintain monthly student progress reports and submit to the Department either an electronic record of each student’s accrued clock hours, or the data in an alternate manner, and to notify the Department when a student is eligible to take the licensure examination; prohibiting an individual from residing on the premises of a massage establishment; requiring licensed massage therapists to attach their photographs to their licenses and students to attach their photographs to their permits; and requires a massage establishment and massage school to display a sign concerning services and assistance available to victims of human trafficking. The proposed rules will also require draping of certain body areas at all times during services and will require the consultation document to contain statements about the requirements for draping.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules repeal the regulation which makes persons who have been convicted of a violation of the massage therapy statute ineligible for licensure until the fifth anniversary of the conviction. The proposed rules repeal the requirement for a massage school to request and receive approval from the Department prior to offering a massage therapy education course of instruction which exceeds the 500-hour minimum required for licensure. The proposed rule also repeals requirements for massage school advanced course work approval. The proposed rules repeal the requirement for a school to terminate a student who accumulates absences more than 15% of total clock hours in a program, or 15% of a portion of the program, and repeal the prohibition that a student who is terminated for violation of the attendance policy from reentering the school before the start of the next grading period. The proposed rules repeal the prohibition of testimonials in advertising.

7. The proposed rules do increase or decrease the number of individuals subject to the rule's applicability. HB 1865 requires individuals who are enrolled in a massage school on or after June 1, 2020 to obtain a Department issued student permit.

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 to Dalma Sotero, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov . 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 proposed rules are also proposed under Texas Government Code, Chapter 411, Subchapter F, and Texas Occupations Code, Chapters 51 and 53, which establish the Department’s statutory authority to conduct criminal history background checks on an applicant for or a holder of a license, certificate, registration, title, or permit issued 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 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) – (14) (No change.)

(15) Linens--Includes, but is not limited to, sheets, towels, and robes or cloth materials used on or comes into contact with a client’s body during a massage.

(16) [ (15) ] 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.

(17) [ (16) ] 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.

(18) [ (17) ] 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.

(19) [ (18) ] 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.

(20) [ (19) ] 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.

(21) [ (20) ] 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.

(22) [ (21) ] 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.

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

(24) [ (23) ] 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.

(25) [ (24) ] 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.

(26) Student permit-- A permit issued by the department to a student enrolled in a licensed massage school which allows the student to practice massage therapy as prescribed by the massage therapy education program.

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

(28) [ (26) ] 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 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) – (6) (No change.)

(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) (No change.)

(b) – (d) (No change.)

(e) A criminal history check performed under this subsection requires an applicant for a license to submit a complete and legible set of fingerprints, on a form prescribed by the department, to the department or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation.

(f) The department may not issue a license to a person who does not comply with the requirements of this section.

(g) The department shall conduct a criminal history record information check of each applicant for a license using information:

(1) provided by the individual under this section; and

(2) made available to the department by the Department of Public Safety, the Federal Bureau of Investigation, and any other criminal justice agency under Chapter 411, Government Code.

§117.21. Massage Therapist License—Substantial Equivalence [ Reciprocity ].

(a) – (d) (No change.)

§117.23. Massage Therapist License--Issuance of License.

(a) – (c) (No change.)

(d) A license displayed under subsection (b) must have attached to the front of the license a current photograph of the individual massage therapist.

§117.25. Student Permit--General Requirements and Application; Term.

(a) To be eligible for a student permit an applicant must:

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

(2) submit all applicable fees as prescribed under §117.100.

(b) A student permit issued under this chapter does not expire.

SUBCHAPTER D. CONTINUING EDUCATION.

§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, [ advanced course work, ] or college and university academic courses that are:

(1) - (4) (No change.)

(b) - (e) (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) – (5) (No change.)

(6) pay the required fee [ 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) (No change.)

[(b) Minimum standards of operation must be maintained by all massage therapy educational programs to ensure educational programs of high quality which will be of benefit to the student, the school, and the public.]

(b) [ (c) ] To be eligible for a massage school license, an applicant must: [ Each applicant for a massage school must submit: ]

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

(2) submit proof of ownership of the building or a lease agreement for the first twelve (12) months of operation; [ supporting documents that shall include: ]

[ (A) lease agreement; ]

[ (B) detailed floor plan; and ]

[ (C) inventory; ]

(3) provide a current financial statement reviewed by a public accountant and finalized no more than 180 days prior to the application date [ the financial stability statements or documents as prescribed under §117.56 ];

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

(5) 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; [ . ]

(6) maintain adequate space and equipment to provide training to enrolled students;

(7) comply with all health and safety standards established by the Act and this chapter; and

(8) submit the name and contact information for the school’s designated contact person, if applicable.

(c) A massage school must be inspected and approved by the department prior to operation.

(d) The department shall conduct an inspection of a massage school before an educational program begins operation. No massage school may be operated, instruction given, or student solicited or enrolled at any location which has not been approved by the department. ]

[ (e) Each massage school shall maintain each instructional location in accordance with applicable state and local fire codes and regulations. ]

(d) [ (f) ] The massage school license must be displayed in an appropriate and public manner at the location of the educational program.

(e) A massage school must properly account for the hours granted to each student, in a manner prescribed by the department.

(f) A school shall not engage in any act, directly or indirectly, that grants or approves student hours that were not accrued in accordance with this chapter.

(g) A criminal history check performed under this subsection requires an applicant for a license to submit a complete and legible set of fingerprints, on a form prescribed by the department, to the department or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation.

(h) The department may not issue a license to a person who does not comply with the requirements of this section.

(i) The department shall conduct a criminal history record information check of each applicant for a license using information:

(1) provided by the individual under this section; and

(2) made available to the department by the Department of Public Safety, the Federal Bureau of Investigation, and any other criminal justice agency under Chapter 411, Government Code.

(j) For purposes of this section, if the applicant for a license is an entity, the applicant must submit fingerprints as required by this section for each individual who:

(1) personally or constructively holds, including as the beneficiary of a trust:

(A) at least 10 percent of the entity's outstanding stock; or

(B) more than $25,000 of the fair market value of the entity;

(2) has the controlling interest in the entity;

(3) has a direct or indirect participating interest through shares, stock, or otherwise, regardless of whether voting rights are included, of more than 10 percent of the profits, proceeds, or capital gains of the entity;

(4) is a member of the board of directors or other governing body of the entity; or

(5) serves as:

(A) an elected officer of the entity; or

(B) a general manager of the entity.

§117.51. Massage School Locations.

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

(c) An application for licensure of an additional location must be in accordance with the requirements of §117.50 and include the [ shall include the department-approved application form, ] fee prescribed under §117.100.[ , and the following documents: ]

[ (1) lease agreement; ]

[ (2) detailed floor plan; and ]

[ (3) inventory. ]

[ (d) Each massage school shall maintain each instructional location in accordance with applicable state and local fire code(s) and regulations. ]

(d) [ (e) ] The department may approve a massage school [ therapy educational program ] to begin operation at an additional location prior to inspection if an inspection of the location has been conducted by the department within the preceding ninety (90) days or if the instruction will be conducted at a public facility, such as a hotel, hospital, university, college, etc.

(e) [ (f) ] An application for a change of [ instructional ] location of a massage school [ therapy educational program ] must be filed and approved by the department before the new location is used. Upon approval of a change of [ instructional ] location, no course work may be provided at the previous location.

(f) An applicant for a change of location must:

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

(2) pay the applicable fee under §117.100;

(3) provide proof of ownership of the building or a lease agreement for the first twelve (12) months of operation;

(4) maintain adequate space and equipment to provide training to enrolled students;

(5) comply with all health and safety standards established by this chapter; and

(6) be inspected and approved by the department prior to the operation of the school at the new location.

(g) Any refunds due to students under the cancellation and refund policy in §117.66, must be made before the department will approve an additional location or a change of location.

(h) The department may issue an emergency approval for a change of [ instructional ] location or additional location on the basis of documented circumstances beyond the massage school’s [ therapy educational program's ] control (e.g., fire, flood, breach of lease, etc.).

(i) [ (1) ] All required documents must be submitted before the emergency approval will be considered.

[ (2) All required fees for the change of location or approval of additional location must be submitted to the department within ten (10) days of issuance of the emergency approval unless the new location is only used once. ]

§117.52. Change of Massage School Ownership.

(a) The license of a massage school may not be sold or transferred to another person or owner.

(b) If a massage school changes ownership, the new owner must apply for a new massage school license within thirty (30) days before the change in ownership. A massage school may continue to operate pending approval by the department. The new owner must submit a massage school application for a new license meeting all requirements as defined in §117.50.

(c) A change of ownership may include the following:

(1) For a sole proprietorship, the licensee no longer owns the massage school.

(2) For a partnership or limited partnership, the partnership is dissolved.

(3) For a corporation or limited liability company, if sold to another person or entity. A change of ownership does not include corporate officer or stockholder restructuring.

(4) The addition or deletion of any person defined as an owner.

(5) Legal incompetence or death.

[ (b) The department may consider the addition or deletion of any person defined as an owner as a change in ownership. ]

[ (c) The massage school must notify the department of the change in ownership at least thirty (30) days before the change in ownership to request that the department, in lieu of a full application, accept a partial application. All fees for initial application will apply. ]

[ (d) The department may require submission of a complete application for licensure if:]

[(1) the department has a reasonable basis to believe the change in ownership of the school may significantly affect the massage therapy educational program's continued ability to meet the criteria for approval; or]

[(2) the educational program fails to file notice of the change of ownership at least thirty (30) days before the ownership transfer. ]

[ (e) The department may require a partial application for licensure if the department reasonably believes the change in ownership will not significantly affect the educational program's continued ability to meet the criteria for approval. ]

[ (f) Before a change in ownership of a massage school, the purchaser shall furnish the department with appropriate information to establish financial stability as prescribed under §117.56. ]

(d) [ (g) ] The new owner [ purchaser ] of a massage school shall accept responsibility for all refund liabilities of the previous owner.

[ (h) The department may issue a new license, resulting from a change of ownership, without conducting an inspection if an inspection of the facility has been conducted within the previous year and if the new owner verifies that no changes will be made to existing facilities. ]

§117.53. Massage School Equipment and Facility Requirements.

(a) Each massage school [ therapy education program ] shall provide adequate equipment in good working order. The equipment required for instruction shall be determined by the program objective(s). The equipment shall be comparable to that commonly found in the practice of massage therapy.

(b) – (c) (No change.)

(d) The facilities shall meet any state and local ordinances or requirements governing building and safety for the designated use , including applicable state and local fire codes.

(e) If adequate facilities and equipment are available, the following maximum ratios are recommended for the supervised course of instruction, and may be varied at the discretion of the massage school [ therapy educational program ] to conform to specific conditions:

(1) laboratory--12 tables to 1 instructor and 3 students to 1 table; and

(2) classroom--36 students to 1 instructor.

(f) If a massage school is using a time clock to track student hours, the computer time clock must indicate the specific date of each day.

(g) A massage school shall display the massage school license in a conspicuous place for public view.

(h) A massage school must display a sign containing human trafficking information as required by Texas Occupations Code, Chapter 455, §455.207, in a form and manner prescribed by the commission that is:

(1) in a conspicuous place clearly visible to the public; and

(2) acceptable to the department.

§117.54. Massage School Health and Safety [ Sanitation ] Requirements.

(a) Each massage school [ instructional location ] shall be maintained in accordance with applicable state and local [ sanitary or ] health and safety codes and regulations.

(b) A massage school [ An instructional location ] and all fixed equipment shall be:

(1) thoroughly cleaned on a routine basis;

(2) [ be ] rendered free from harmful organisms by the application of an accepted bactericidal agent;[ : and ]

(3) [ be ] in good working condition at all times; and[ . ]

(4) adequately ventilated.

(c) Toilet facilities shall be kept clean and sanitary [ without offensive odor and in working order ] at all times. Restrooms shall not be used as storage rooms.

(d) Each massage school [ location ] shall provide hand washing facilities, including hot and cold running water, located near or adjacent to the toilet room or rooms. [ Hot air blowers or suitable holders for sanitary towels and dispensers for soap shall be provided, and be adequately supplied at all times. ]

(e) All trash containers must be emptied daily and kept clean [ by washing or using plastic liners ].

(f) Disposable sheets, towels, or protectors which cannot be disinfected must [ will ] be disposed of in a waste receptacle immediately after use.

(g) (No change.)

(h) Clean linens [ sheets ] shall be used on each client.

(i) [ Soiled sheets are to be discarded. ] After linens have [ a sheet has ] been used once, they must [ it shall ] be deposited in a partially closed or fully closed[ receptacle, ] container[ , or basket, ] and shall not be used again until properly laundered and disinfected in chlorinated bleach and hot water.

[ (j) Used towels shall be laundered in chlorinated hot water either by regular commercial laundering or by a non-commercial laundering process ].

(j) [ (k) ] Lubricants, including oils, [ Oil ] must be kept in closed containers.

[ (l) Each instructional site must have adequate ventilation. ]

§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. The massage school owner or the designated contact person must be available.

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

(c) A school must maintain and make available for department or student inspection the following documents for a period of the student’s enrollment through thirty-six (36) months after the student completes the curriculum, withdraws, or is terminated:

(1) daily record of attendance;

(2) the following documents if a time clock is used:

(A) time clock record(s); and

(B) time clock failure and repair record(s); and

(3) all other relevant documents that account for a student’s hours under this chapter .

[ (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. ]

(d) Upon completion of the inspection, the owner shall be advised in writing of the results. The inspection report will indicate whether the inspection was approved or not approved and will describe any violations identified during the inspection. For inspections that are not approved, the inspection report will identify violations that must be corrected by the owner of the school within ten (10) days. Verification of corrected violations must be provided, in a manner prescribed by the department, within thirty (30) days of completion.

§117.57. Massage School License Renewal.

(a) (No change.)

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

(1) – (2) (No change.)

(3) 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 [ 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) (No change.)

(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 or emailed 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 renew [ issue a renewal license to ] a massage school license 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.

§117.58. Massage School Administrative Personnel.

(a) Each massage school that operates a massage therapy educational program shall notify the department of the designated contact person. The designated contact person [ name of the person designated as the director of the educational program. The director ] is responsible for the educational program, the organization of classes, the maintenance of the physical location and the instructional site(s), the maintenance of proper administrative records and all other procedures related to the administration of the educational program.

[ (b) The director shall designate an individual to perform all the functions of, and succeed to, the authority of the named director when the director is unavailable or absent from the educational program. The director shall notify the department of the name of the designated individual. ]

(b) [ (c) ] The owner or designated contact person [ director or his or her designee ] must be available during scheduled inspections by the department.

§117.59. Massage School Curriculum Outline and Internship.

(a) Each massage school [ that operates a massage therapy educational program ] shall follow the curriculum outline prescribed by the department for the minimum 500-hour supervised course of instruction.

(b) (No change.)

(c) A classroom hour shall include at least 50 clock minutes of actual classroom time and may include a maximum of 10 minutes of break time. Break time for hours which are taught consecutively in one sitting (i.e., in one evening) may be aggregated into a single break time during those consecutive hours, not to exceed 3-hour [ 3 hour ] blocks of instruction, but not at the end of those hours. The 10 minutes of break time may not be accumulated and used in lieu of lunch or dinner breaks.

(d) – (e) (No change.)

(f) During the hands-on experience, a massage therapy instructor must be available on the premises of the massage school [ educational program ] and be immediately available to the student(s).

(g) A massage school shall not require a student to advertise for clients or to obtain clients as part of the internship program. At the student's option and with the massage school’s [ educational program's ] permission, a student may obtain clients for the student's hands-on massage therapy experience.

(h) – (i) (No change.)

(j) [ Approved internship programs may not exceed 120 hours. ] Individuals who have completed the required minimum 500-hour supervised course of instruction, including the 50-hour internship, are eligible for examination and licensure. [ For the purposes of Texas Occupations Code, §455.053(7), 50 hours is the maximum number of hours a student can accumulate in an internship before the student is required to be licensed unless the student is enrolled in a massage school with an internship of up to 120 hours which has been approved by the department in accordance with subsection (m) of this section. No student may complete more than one internship program. ]

(k) A massage school shall not allow a [ an unlicensed ] student to receive any form of compensation for massage therapy or other massage therapy services.

(l) A massage school shall not allow, authorize, or contract with a [ an unlicensed ] student enrolled in any course or portion of a course offered by the school to provide massage therapy or other massage therapy services to the public for compensation in excess of the internship [ approved by the department ].

[ (m) A massage school shall request and receive approval to offer a course of instruction designed as a massage therapy educational program which exceeds the 500-hour minimum required for licensure and is otherwise conducted in accordance with all rules pertaining to a massage therapy educational program. A massage school shall not offer a massage therapy educational program which exceeds the 500-hour minimum required for licensure without receiving approval in writing from the department. Such approval shall only be granted by the department if: ]

[ (1) the massage school is accredited by an accrediting body approved by the U.S. Department of Education; or ]

[ (2) the massage school is approved by the department and meets the following requirements: ]

[ (A) the massage school also offers the 500-hour minimum course of instruction required for licensure concurrently and the student is allowed to choose whether or not to enroll in a program that exceeds the minimum number of hours required for licensure; ]

[ (B) the massage therapy educational program shall follow the curriculum outline prescribed by the department for the minimum 500 hour supervised course of instruction; ]

[ (C) all classroom hours in excess of 450 hours are structured to achieve specific educational goals approved by the department which are directly related to one or more of the competencies included in the curriculum approved by the department; ]

[(D) all internship hours in excess of 50 hours are structured to achieve specific educational goals approved by the department which are directly related to the clinical application of theory pertaining to the practice of massage therapy and the manipulation of soft tissue;]

[(E) the total number of classroom hours does not exceed 880 hours;]

[(F) the total number of internship hours does not exceed 120 hours;]

[(G) the massage school:]

[(i) provides the student with a department form designed to inform the student that the massage therapy educational program exceeds the minimum number of hours required by law for licensure;]

[(ii) obtains the student's signature on the form before enrollment;]

[(iii) provides a copy of the signed form to the student; and]

[(iv) maintains a copy of the signed form in the student's file; and]

[(H) Failure to comply with this subchapter shall constitute grounds for the department to deny or withdraw approval of programs or to take disciplinary action against a massage school.]

§117.61. Massage School Admission Requirements.

(a) Each massage school shall develop and maintain [ submit a copy of its ] admission requirements [ for the department's approval. Justification shall be submitted for each of the admission requirements ].

(b) – (c) (No change.)

(d) Official transcripts and documentation of course work obtained at colleges, universities, or out of state institutions must be submitted for evaluation on a department-approved form. The department will provide the student with the allowed approved credit which the student must provide to the massage school. The massage school must place [ placed ] in the student's file [ along with ] a copy of the department's [ written ] evaluation.

(e) (No change.)

§117.62. Massage School Enrollment Procedures.

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

(1) - (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, or another sexual offense.[ ; or ]

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

(b) Each prospective student shall be given a reasonable time to review the material in subsection (a) and offered the opportunity to tour the instructional facility and inspect equipment before signing an enrollment agreement. [ The prospective student may decline the tour. ]

(c) (No change.)

(d) Each massage school [ therapy educational program ] shall develop an enrollment agreement which shall be used to enroll each student. The agreement shall include but is not limited to:

(1) the full and correct name and location of the massage school[ , massage therapy educational program, ] and the massage school director(s) and owner(s);

(2) – (6) (No change.)

(e) (No change.)

(f) Each massage school must maintain an album or database that contains each student permit, including a picture of each enrolled student.

(g) Each student enrolled in a massage school must have a student permit. No student may accrue hours without a student permit subject to department approval. No student permit is valid unless the student’s photo is included.

§117.64. Massage School Transcripts and Records.

(a) Massage schools shall make available for inspection by the department, all records relating to the massage school [ therapy educational program ] and necessary data required for approval and to show compliance with the Act and this subchapter. A copy of the accreditation authorization and the letter of eligibility from the U.S. Department of Education shall be available for review, if applicable.

(b) A massage school may use a time clock to track student hours and maintain a daily record of attendance.

(c) A massage school using a time clock shall post a sign at the time clock that state the following department requirements:

(1) Each student must personally clock in or out on their own;

(2) No credit shall be given for any times written in, except in a documented case of time clock failure or any other situation which is documented by a licensed instructor;

(3) If a student is in or out of the massage school for lunch, the student must clock out;

(4) Students leaving the massage school for any reason, including smoking breaks, must clock out, except when an instructional area, on a campus, is located outside the main school building and students are under the supervision of a licensed instructor.

(d) [ (b) ] Each massage school shall maintain student transcripts of academic records permanently. 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 [ therapy educational program ];

(7) dates of courses;

(8) address of student;

(9) signature of the school owner or designated contact person [ authorized representative of the massage therapy educational program ]; and

(10) pass/fail score.

(e) [ (c) ] Each massage school [ therapy educational program ] shall retain the following student records for at least three years:

(1) enrollment agreements and contracts;

(2) written record and evaluation of previous education and training on a form provided by the department; and

(3) official transcript(s) from all previous post-secondary schools attended by the student.[ ; and ]

[ (4) a master student registration list of any person who signs an enrollment agreement, makes a down payment to attend the class, or attends a class. The list must contain: ]

[ (A) the date of the entry; ]

[ (B) the name of student; ]

[ (C) the address of the student including city, state, and zip code; ]

[ (D) the telephone number of the student with area code; ]

[ (E) the social security number of the student; ]

[ (F) the date of birth of the student; and ]

[ (G) the name and dates of supervised education course work. ]

(f) [ (d) ] Financial records must be retained as required by federal retention requirements, if applicable.

§117.65. Massage School Conduct and Grievance Policy.

[ (a) ] A massage school shall develop and implement a written policy pertaining to the conduct of students, including a grievance policy. The policy shall [ include ]:

(1) include conditions for dismissal; [ and ]

(2) include conditions for re-entrance of those students dismissed for violating the conduct policy;[ . ]

[ (b) Each massage school shall establish a written grievance policy and procedure that is disclosed to all students at the time of enrollment. ]

[ (c)] [The grievance policy and procedure shall: ]

(3) [ (1) ] attempt to resolve disputes between students, including drops and graduates, and the school or instructor;

(4) [ (2) ] require that adequate records be maintained of grievances and resolutions;

(5) [ (3) ] require that every effort to resolve grievances and complaints is made; and

(6) [ (4) ] prohibit a massage school from disciplining or retaliating against a student for filing a complaint with the department.

§117.66. Massage School Cancellation, Refund, and School Closure Policies.

(a) Each massage school shall develop and implement a cancellation and refund policy which must provide a full refund of all monies paid by a student if:

(1) (No change.)

(2) the enrollment of the student was procured as the result of any misrepresentation in advertising, in promotional materials of the massage school [ therapy educational program ] or by the owner, [ the massage school, ] or massage therapy instructor; or

(3) (No change.)

(b) The policy must provide for the refund of the unused portion of tuition, fees, and other charges in the event the student, after expiration of the 72-hour cancellation privilege, fails to enter, withdraws from, or is terminated from the program at any time before completion. The policy must provide that:

(1) – (2) (No change.)

(3) if tuition is collected in advance of the first day of the program, and if, after expiration of the 72-hour cancellation privilege, the student does not enter the program, not more than $200 shall be retained by the massage school [ therapy educational program ];

(4) if a student enrolls in [ enters ] a massage school [ therapy educational program ] and is terminated or withdraws, the minimum refund of the tuition will be:

(A) during the first week or one-tenth of the program, whichever is less, 90% of the unused [ remaining ] tuition, fees, and charges;

(B) after the first week or one-tenth of the program, whichever is less, but within the first three weeks of the program, 80% of the unused [ remaining ] tuition, fees, and other charges;

(C) after the first three weeks of the program, but within the first quarter of the program, 75% of the unused [ remaining ] tuition, fees, and other charges;

(D) during the second quarter of the program, 50% of the unused [ remaining ] tuition, fees, and other charges;

(E) during the third quarter of the program, 10% of the unused [ remaining ] tuition, fees, and other charges; and

(F) (No change.)

(5) (No change.)

(6) if a program is discontinued by the massage school and this prevents the student from completing the program:

(A) all tuition, fees and other charges [ and fees ] paid shall be refunded if the student is not provided with a transcript of all successfully completed hours within thirty (30) days of discontinuance of the program; or

(B) in the event an additional or changed location is ten (10) miles or more from the previously approved location of instruction and an enrolled student is unable to complete the program at the additional or changed location as determined by the department:

(i) all tuition, fees and other charges [ and fees ] paid shall be refunded if the student is not provided with a transcript of all successfully completed hours within thirty (30) days of the change of location; or

(ii) all unused [ unearned ] tuition, fees, and other charges [ and fees ] shall be refunded if a transcript of all successfully completed hours is provided within thirty (30) days of the change of location; and

(7) (No change.)

(c) The school will determine the value of any refund due to the student. If the school received any money designated for the payment of tuition, fees, and other charges and the value of the money is determined to be more than the portion used during the student’s enrollment, then the student is eligible for a refund of the unused portion of the money received by the school.

(d) [ (c) ] In all refund computations, leaves of absence, suspensions, school holidays, days when classes are not offered, and summer vacations shall not be counted as part of the elapsed time for purposes of calculating a student's refund.

(e) [ (d) ] A massage school [ therapy educational program ] is considered to have made a good faith effort to consummate a refund if the student's file contains evidence of the following attempts:

(1) certified mail to student's last known address;

(2) certified mail to the student's permanent address; and

(3) certified mail to the address of the student's parent, if different from the permanent address and if known.

(f) [ (e) ] If the department determines that the method used to calculate refunds is not in compliance with this section and if the massage school does not provide the correct refund promptly, the school shall submit a report of an audit conducted by a certified public accountant or public accountant of the refunds due former students. The audit report shall be accompanied by a schedule of student refunds due which shall disclose the following information for the previous four years for each former student:

(1) – (4) (No change.)

(g) [ (f) ] The department may take disciplinary action against the license of a massage school for a violation of this section; however, the department has no authority to recover a refund on behalf of a student.

[ (g) If a massage school suspends enrollments or closes, the school shall not advertise, solicit, or in any way advise prospective students, either directly or indirectly, of the program offerings. ]

(h) (No change.)

(i) Refunds shall be made in accordance with the massage school’s refund policy. The effective date of termination for purposes of refunds shall be the last day the student attended school.

§117.67. Massage School Student [ Minimum ] Progress Requirements [ Standards ].

(a) (No change.)

(b) Massage schools must submit to the department an electronic record of each student’s accrued clock hours at least one time per month in a manner and format prescribed by the department. A massage school’s initial submission of clock hours shall include all hours accrued at the school. Upon department approval, a massage school may submit data required under this subsection in an alternate manner and format as determined by the department, if the massage school demonstrates that the requirements of this subsection would cause a substantial hardship to the school.

(c) Except for a documented leave of absence, a massage school shall electronically submit a student’s withdrawal or termination to the department within ten (10) calendar days after the withdrawal or termination. Except for a documented leave of absence, a school shall terminate a student who does not attend a massage school for thirty (30) school days.

(d) Upon a student’s completion of the massage therapy educational program, the school shall notify the department that the student has completed the required number of hours and is eligible to take the appropriate examination.

(e) Upon notification from the massage school, the department shall make the student eligible to take the appropriate examination.

[ (b) The progress evaluation system shall be based on grading periods. A grading period shall not cover more than 25% of the required program hours. ]

[ (c) A student who is making unsatisfactory progress at the end of a grading period shall be placed on probation for the next grading period. If the student on probation achieves satisfactory progress for the subsequent grading period but has not achieved the required grades for overall satisfactory progress, the student may be continued on probation for one more grading period. ]

[ (d) When a student is placed on probation, that student will be counseled before returning toclass, and the date, action taken, and terms of the probation shall be clearly indicated on the appropriate permanent records. ]

[ (e) If the student on probation fails to achieve satisfactory progress for the first probationary grading period, the student's enrollment may be terminated. ]

[ (f) The enrollment of a student who fails to achieve overall satisfactory progress for the program at the end of two successive probationary grading periods shall be terminated. ]

[ (g) A student whose enrollment was terminated for unsatisfactory progress may reenter after a minimum of one grading period. ]

[ (h) Refunds shall be made in accordance with the massage school’s refund policy. The effective date of termination for purposes of refunds shall be the last day of the last probationary grading period. ]

[ (i) A student who returns after the enrollment was terminated for unsatisfactory progress shall be placed on probation for the next grading period. The student shall be advised of this action and the student's file documented accordingly. If the student does not maintain satisfactory progress during or by the end of this probationary period, the student will be terminated.]

§117.68. Massage School Attendance Policy.

(a) Each massage school shall develop and implement a written policy relating to attendance for students enrolled in a massage school [ therapy educational program ] or any portion of the course of instruction.

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

(e) The attendance policy shall require the termination of students who accumulate absences of[ : ]

[ (1) ] more than ten (10) consecutive school days.[ ; or ]

[ (2) more than 15% of the total clock hours in a program, or 15% of a portion of the program if a student enrolls in less than the total minimum 500 hours. ]

(f) Refunds shall be made in accordance with massage school’s refund policy. The effective date of termination for purposes of refunds shall be the last date of absence under subsection (e). [ A student whose enrollment is terminated for violation of the attendance policy may not reenter before the start of the next grading period. ]

(g) – (h) (No change.)

(i) A leave of absence for reasonable purposes acceptable to the massage school [ therapy educational program ] shall not exceed the lesser of thirty (30) school days or sixty (60) calendar days.

(1) (No change.)

(2) Attendance records shall clearly show the dates for which the leave of absence was granted. A written statement as to why the leave of absence was granted, signed by both the student and the director of the massage school [ therapy educational program ] indicating approval, shall be placed in the student's file.

(3) (No change.)

(j) Each massage school [ therapy educational program ] must maintain a master record of attendance which clearly indicates the number of scheduled hours each day and the hours of absence for each student. Entries to the attendance log must indicate whether or not a student was in attendance and must be permanent.

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:

(1) – (2) (No change.)

(3) 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 .

(d) A criminal history check performed under this subsection requires an applicant for a license to submit a complete and legible set of fingerprints, on a form prescribed by the department, to the department or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation.

(e) The department may not issue a license to a person who does not comply with the requirements of this section.

(f) The department shall conduct a criminal history record information check of each applicant for a license using information:

(1) provided by the individual under this section; and

(2) made available to the department by the Department of Public Safety, the Federal Bureau of Investigation, and any other criminal justice agency under Chapter 411, Government Code.

(g) For purposes of this section, if the applicant for a license is an entity, the applicant must submit fingerprints as required by this section for each individual who:

(1) personally or constructively holds, including as the beneficiary of a trust:

(A) at least 10 percent of the entity's outstanding stock; or

(B) more than $25,000 of the fair market value of the entity;

(2) has the controlling interest in the entity;

(3) has a direct or indirect participating interest through shares, stock, or otherwise, regardless of whether voting rights are included, of more than 10 percent of the profits, proceeds, or capital gains of the entity;

(4) is a member of the board of directors or other governing body of the entity; or

(5) serves as:

(A) an elected officer of the entity; or

(B) a general manager of the entity .

§117.82. Massage Establishments--General Requirements.

(a) – (i) (No change.)

(j) A massage establishment must display a sign containing human trafficking information as required by Texas Occupations Code, Chapter 455, §455.207, in a form and manner prescribed by the commission that is:

(1) in a conspicuous place clearly visible to the public; and

(2) acceptable to the department.

(k) A massage establishment shall not allow any individual, including a student, license holder, or employee, to reside on the premises of the massage establishment. This does not apply to a place of business exempted by Texas Occupations Code Chapter 455, §455.155(c)(2), from the requirement to hold a license as a massage establishment or to a licensed massage therapist who practices as a solo practitioner and who is exempted under Texas Occupations Code Chapter 455, §455.155(b), from the requirement to hold a license as a massage establishment.

§117.83. Sanitation Requirements for Massage Establishments.

(a) – (g) (No change.)

(h) Clean linens [ sheets ] shall be used on each client.

(i) [ Soiled sheets are to be discarded. ] After linens have [ a sheet has ] been used once, they must [ it shall ] be deposited in a fully closed or partially closed [ receptacle, ] container[ , or basket, ] and shall not be used again until properly washed and disinfected in chlorinated bleach and hot water.

[ (j) Used towels shall be washed in chlorinated hot water. ]

(j)[ (k) ] Lubricants, including oils, [ Oil ] must be kept in closed containers.

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 time; and

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

§117.91. Consultation Document.

(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) – (2) (No change.)

(3) a statement that the licensee shall drape the breasts of all female clients and not engage in breast massage of female clients without the written consent of the client;

(4) a statement that drapingof the genital area and gluteal cleavage will be used at all times during the session for all clients[ , unless otherwise agreed to in writing by both the client and the licensee ];

(5) – (6) (No change.)

(b) (No change.)

§117.93. Advertising.

(a) (No change.)

(b) A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that:

(1) – (3) (No change.)

[ (4) contains a testimonial; ]

(4)[ (5) ] causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

(5) [ (6) ] advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

(6) [ (7) ] advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

(7)[ (8) ] makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of client; or

(8) [ (9) ] advertises or represents in the use of a professional name, title or professional identification that is expressly or commonly reserved to or used by another profession or professional.

(c) – (f) (No change.)

SUBCHAPTER I. FEES.

§117.100. Fees.

(a) (No change.)

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

(1) student permit fee--$25;

(2) [ (1) ] initial application fee--$100;

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

(c) (No change.)

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

(1) – (2) (No change.)

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

(4) – (5) (No change.)

(e) – (j) (No change.)

SUBCHAPTER F. LICENSED MASSAGE SCHOOLS.

[ 117.56. Massage School Financial Stability--Documents and Requirements. ]

[ 117.60. Massage School Advanced Course Work. ]

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 September 30, 2019.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation