Proposed Administrative Rules

Chapter 117. Massage Therapy
Proposal Filed: August 9, 2021 – Published in the Texas Register: August 20, 2021
Deadline for Public Comment: September 20, 2021.

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 F, §§117.50, 117.55, 117.58, 117.59, 117.62, 117.66, 117.67, and 117.68, Subchapter G, §117.82, and Subchapter H, §§117.91 and 117.92, 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 bills passed in the 87 th Legislature, Regular Session, and update the Massage Therapy rules. Specifically, the proposed rules implement Senate Bill 1130, 87 th Legislature, Regular Session (2021), which expressly allows massage schools to teach certain subjects through distance learning. The proposed rules also implement House Bill 1540, 87th Legislature, Regular Session (2021), which amended the definition of “sexual contact” in the Massage Therapy statute. Additionally, the proposed rules include clarification and clean-up changes.

The proposed rules also include changes in response to violence and other misconduct against massage therapists, including the shootings at massage establishments near Atlanta, Georgia. These proposed amendments were recommended by department staff and the Massage Therapy Advisory Board’s standard of care workgroup.

The proposed rules were presented to and discussed by the Massage Therapy Advisory Board at its meeting on July 26, 2021. 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 §117.2 by adding a definition for “distance learning” and renumbering the remaining definitions.

The proposed rules amend §117.50 by adding subsection (k), which requires department approval for distance learning.

The proposed rules amend §117.55 to require massage schools to maintain and make available for department inspection the documentation related to distance learning. The proposed amendments to §117.55 also allow the department to inspect a massage school’s instruction, including the instruction offered through distance learning.

The proposed rules amend §117.58 by updating the responsibilities of a massage school’s designated contact person to include the organization of all instruction, including instruction through distance learning.

The proposed rules amend §117.59 to include detail related to distance learning. Specifically, the proposed amendments: update the language in subsection (c) to refer to instructional hours and instruction time; update subsection (d) to require an instructor to be physically present with the student during any in-person hours, and to require that any make-up work completed through distance learning comply with the distance learning provisions in the chapter; require in subsection (e) that the internship be completed at a licensed massage school and not through distance learning; update subsection (h) to require a school to provide all instruction at the physical site where the student enrolled or through distance learning (if otherwise allowed), unless otherwise agreed to by the student and the educational program; and update subsection (i) to refer to instruction. The proposed amendments to §117.59(m) include requirements that massage schools must comply with if they offer distance learning. These requirements relate to verifying the student’s identity, tracking student hours, monitoring the student’s participation, offering an opportunity for direct interaction between the instructor and the student, providing interactive instruction, maintaining documentation, ensuring that students have all necessary educational materials, and using a time clock or similar technology in distance learning. The proposed amendments provide examples of instruction that is interactive. The proposed amendments to subsection (m) also prohibit schools from using distance learning to provide the instruction required by Occupations Code, Section 455.156(b)(1)(A). In addition to distance learning-related amendments, the proposed rules amend subsection (n) to require that massage schools offer information in protecting the safety of massage therapists, including steps to take if a client initiates any verbal or physical contact with the massage therapist that is sexual in nature. This information would be provided as part of the minimum 500-hour supervised course of instruction, and could be provided at any time during the 500 hours. Additionally, the proposed amendments to §117.59(f) clarify that a massage therapy instructor must be available on the premises of the school and be immediately available to a student during the hands-on experience during the internship.

The proposed rules amend §117.62 by updating the language in subsection (d)(3) to refer to all instructional hours, including hours completed through distance learning.

The proposed rules amend §117.66 by updating the language in subsection (d) to refer to instruction rather than classes.

The proposed rules amend §117.67 to clarify that massage schools must report the hours that students successfully complete. The proposed amendments also allow the department to require that massage schools report the location where hours were completed or if hours were completed through distance learning.

The proposed rules amend §117.68 by updating the language in subsection (c) to refer to instruction rather than classes.

The proposed rules amend §117.82 by adding solicitation of prostitution to the definition of “sexual contact” in the section.

The proposed rules amend §117.91 by adding two required statements to the consultation document: one statement that the licensee may end the massage session if the licensee feels uncomfortable for any reason, and one statement that the licensee must immediately end the massage statement if a client initiates any verbal or physical contact that is sexual in nature. The proposed rules also include clean-up changes in subsection (b). These changes would require the initial consultation to be updated if a client’s reason for seeking massage therapy changes at any time or any of the information in subsections (a)(1) through (a)(3) is modified.

The proposed rules amend §117.92 by adding solicitation of prostitution to the description of “sexual contact” in the section.

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 Government Code §2001.022. Although there may be additional massage therapy students because of the addition of distance learning, the overall increase would not be large enough to have an 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, there will be public benefit from implementing SB 1130, regarding distance learning. Specifically, the opportunities offered through distance learning could make massage therapy education available to more individuals, thereby increasing attendance at massage schools and increasing the number of license holders who serve the public. There could also be a decrease in the overall cost of massage therapy education, as students may have fewer expenses associated with commuting to class. Additionally, the proposed rules ensure that massage students who participate in distance learning receive all required instruction.

The proposed changes to the consultation document will benefit the public by setting clear expectations for the client and the licensee. Requiring massage schools to provide information in protecting the safety of the massage therapist may help reduce risk of harm to students once they become licensed.

The proposed changes implementing HB 1540 bring the rules up to date with the language in the massage therapy statute and changes to the Texas Penal Code. And finally, several rule language improvements and clarifications help make the rules clearer and easier for the reader to understand.

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. Specifically, any costs associated with updating forms such as consultation documents or enrollment agreements would be minimal, if any. And updating course curriculum to include information in protecting the safety of a massage therapist would have minimal cost to schools, if any.

There would be no economic costs to massage schools to comply with the proposed rules regarding distance learning since schools are not required to offer distance education. However, if a school chooses to offer distance learning, the school may have to purchase a program or other system to verify the identity of the student, monitor student participation, accurately track the number of hours completed, and document its compliance with these requirements. If a school offers a class, lecture, or recitation through distance learning, the school would also be required to offer an opportunity for direct interaction between the instructor and the student. And if a school offers distance learning through a method other than live instruction, that instruction must be interactive. There are many available resources at a variety of costs. A sampling of the various programs shows that costs can range from monthly fees of $15 to $200, or annual fees of $500 to $1,500.

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

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. The Department regulates massage therapists, massage establishments, and massage schools, some of which are small or micro-businesses. The Department does not collect data indicating how many of these licensees can be classified as small or micro-businesses.

The proposed rules would not have an anticipated adverse economic effect on any licensees. No school is required to offer distance learning, and if a school determines that meeting the requirements in the proposed rules would have an adverse economic effect on the school, the school can choose to not offer distance learning. Additionally, any potential costs associated with updating forms and curriculum would be so minimal as to not have an adverse economic effect on any business.

Since the agency has determined that the proposed rule 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 have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Specifically, if a massage school chooses to offer distance learning, there may be a cost associated with meeting the requirements in the proposed rules relating to distance learning. However, the proposed rules fall under the exception for rules that are necessary to protect the health, safety, and welfare of the residents of this state under §2001.0045(c)(6), and 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 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 requirements that must be met if a massage school offers distance learning. These requirements include obtaining approval from the Department, verifying student identity, accurately tracking student hours, monitoring student participation, and documenting compliance with distance learning requirements. The requirements also include: for classes and similar methods of instruction, providing an opportunity for direct interaction between the instructor and the student; and when distance learning is provided through a method other than live instruction, providing interactive instruction.

6. The proposed rules do expand, limit, or repeal an existing regulation. The proposed rules expand requirements for the consultation document to include certain language. The proposed rules also expand the requirements for the 500-hour supervised course of instruction to include information in protecting massage therapist safety, and expand the requirements for the enrollment agreement to include information about distance learning. Additionally, the proposed rules expand the Department’s inspection authority to allow the Department to inspect a massage school’s instruction that is offered through distance learning. The proposed rules also allow the Department to require massage schools to identify the location where student hours were completed or if hours were completed through distance learning.

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 Monica Nuñez, 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 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) – (8) (No change.)

(9) Distance learning--A formal instructional process in which the student and instructor are separated by physical distance and communication technology is used to deliver instruction to the student. The process may also be known as “distance education.”

(10) [ (9) ] Executive Director --The executive director of the department.

(11) [ (10) ] Health and hygiene--The study of recognized methods of sanitation and cleanliness including prophylaxis or disease prevention as applied to massage therapy services and current knowledge of elements of healthy life styles.

(12) [ (11) ] Hydrotherapy--The use of generally accepted methods of external application of water for its mechanical, thermal, or chemical effect.

(13) [ (12) ] Instructor--A person employed at a licensed massage school who instructs one or more students in any section of the course of instruction, other than massage therapy techniques, manipulation of soft tissue, or the internship.

(14) [ (13) ] Kinesiology--The study of the anatomy, physiology, and mechanics of movement of the human body.

(15) [ (14) ] Licensee--A person or entity licensed under the Act as a massage therapist, massage school, massage therapy instructor, or massage establishment.

(16) [ (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.

(17) [ (16) ] 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.

(18) [ (17) ] 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.

(19) [ (18) ] 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.

(20) [ (19) ] 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.

(21) [ (20) ] 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.

(22) [ (21) ] 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.

(23) [ (22) ] 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.

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

(25) [ (24) ] 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.

(26) [ (25) ] 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.

(27) [ (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.

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

(29) [ (28) ] 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 F LICENSED MASSAGE SCHOOLS

§117.50. Massage School License--General Requirements and Application.

(a) – (j) (No change.)

(k) A massage school must obtain department approval in writing before offering instruction through distance learning. A school must obtain additional written approval before changing the technology or method of providing distance learning or before offering additional instruction through distance learning.

§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) for a student completing instruction through distance learning, all documentation required under §117.59(m); and

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

(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.

(e) The department may inspect a school’s instruction, including observing or auditing any instruction offered through distance learning.

§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 is responsible for the educational program, the organization of classes and other instruction including distance learning, 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) (No change.)

§117.59. Massage School Curriculum Outline and Internship.

(a) Each massage school shall follow the curriculum outline prescribed by the department for the minimum 500-hour supervised course of instruction.

(b) A student must successfully complete the first 250 hours of the supervised course of instruction, including the successful completion of at least 100 hours of massage therapy techniques and theory, before the student is eligible to enter the internship program.

(c) A classroom hour or instructional hour shall include at least 50 clock minutes of actual instruction [ 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 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) An instructor must be physically present with the student(s) during any in-person [ the ] classroom hours, including in-person make-up work. Any make-up work completed through distance learning must comply with the distance learning provisions in this chapter.

(e) An internship program must provide a student with a minimum of 40 hours of hands-on massage therapy experience at the location of the student's enrollment. A student enrolled at an additional location shall not be required to travel to another location to complete the internship. The internship may not be offered through distance learning. The internship must be completed at a massage school licensed under this chapter.

(f) During the hands-on experience during the internship, a massage therapy instructor must be available on the premises of the massage school 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 permission, a student may obtain clients for the student's hands-on massage therapy experience.

(h) Unless otherwise agreed to by both the student and the massage therapy educational program, a [ A] massage school must provide all of the minimum 500 hours of the supervised course of instruction at the physical location of the licensed massage school [ site ] where the student enrolled or, if otherwise allowed under this chapter and the Act, through distance learning. [ , unless otherwise agreed to by both the student and the massage therapy educational program .]

(i) A massage school shall schedule instruction [ classes ] and internship clients so that the students will be able to complete the program during the length of time stipulated in the pre-enrollment information. No evening class or required instruction may be scheduled to extend beyond a reasonable time.

(j) Individuals who have completed the required minimum 500-hour supervised course of instruction, including the 50-hour internship, are eligible for examination and licensure.

(k) A massage school shall not allow a 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 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.

(m) Distance learning.

(1) A massage school must verify the identity of a student receiving instruction through distance learning.

(2) A massage school must accurately track the hours each student completes through distance learning.

(3) A massage school must monitor each student’s participation in distance learning to ensure that the student is receiving instruction. Any class, lecture, or recitation, whether offered through live instruction or not, must offer an opportunity for direct interaction between the instructor and the student. Additionally, when distance learning is provided through a method other than live instruction, the instruction must be interactive. This includes but is not limited to:

(A) participating in an activity where there is an opportunity for interaction between the instructor and the student;

(B) submitting an academic assignment;

(C) taking an assessment or an exam;

(D) participating in an interactive tutorial, webinar, or other interactive computer-assisted instruction;

(E) participating in a study group, group project, or an online discussion that is assigned by the school; and

(F) interacting with an instructor about academic matters.

(4) A massage school must document compliance with paragraphs (1)-(3) for each student who receives instruction through distance learning.

(5) A massage school must ensure that students receiving instruction through distance learning have the educational materials necessary to fulfill all course requirements.

(6) A massage school may not use distance learning to provide the instruction required by Section 455.156(b)(1)(A) of the Act.

(7) A massage school using a time clock or similar technology to track student hours completed through distance learning may not alter the time clock records, except in a documented case of technological failure or other situation which is documented by the school.

(n) As part of the minimum 500-hour supervised course of instruction, a massage school shall provide information in protecting the safety of a massage therapist, including steps to take if a client initiates any verbal or physical contact with the massage therapist that is intended to arouse or gratify the sexual desire of either person. This information may be provided at any time in the 500 hours.

§117.62. Massage School Enrollment Procedures.

(a) – (c) (No change.)

(d) Each massage school 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 and the massage school director(s) and owner(s);

(2) the program title, tuition, fees, reasonable estimated cost of books and supplies, any other expenses, total cost of the program, items subject to cost change, method of payment and payment schedule, disclosure statement (if interest is charged on more than three payments), student's right to cancel;

(3) the number of instructional hours included in the program, including internship hours, hours completed in a classroom, and hours completed through distance learning [ classroom and internship hours included in the program ];

(4) the date the program is to begin, the course length and course schedule;

(5) the name and address of the student; and

(6) a statement that the student has received a copy of the information in subsection (a) of this section.

(e) – (g) (No change.)

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

(a) – (c) (No change.)

(d) In all refund computations, leaves of absence, suspensions, school holidays, days when instruction is [ 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) – (i) (No change.)

§117.67. Massage School Student Progress Requirements.

(a) Appropriate standards must be implemented to ascertain the progress of the students enrolled. Each massage school shall have a progress evaluation system of a type and nature to reflect whether the student is making satisfactory progress to the point of being able to complete all subjects within the allotted time provided in the pre-enrollment information.

(b) Massage schools must submit to the department an electronic record of each student’s successfully completed [ accrued ] clock hours at least one time per month in a manner and format prescribed by the department. The department may require massage schools to identify the location where hours were completed or if hours were completed through distance learning. A massage school’s initial submission of clock hours shall include all hours successfully completed [ 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 successfully 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.

§117.68. Massage School Attendance Policy.

(a) – (b) (No change.)

(c) An absence shall be charged for a full day when a student attends none of the scheduled instruction[ classes ] on that day. A partial day of absence shall be charged for any period of absence during the day.

(d) – (j) (No change.)

SUBCHAPTER G LICENSED MASSAGE ESTABLISHMENTS

§117.82. Massage Establishments--General Requirements.

(a) – (h) (No change.)

(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 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, solicitation of 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

§ 117.91. 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 written consent before each session involving breast massage;

(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) a statement that the licensee may end the massage session if the licensee feels uncomfortable for any reason;

(7) a statement that the licensee must immediately end the massage session if a client initiates any verbal or physical contact that is sexual in nature; and

(8) [ (6) ] the signature of both the client and the licensee.

(b) If the client's reason for seeking massage therapy changes at any time or [ and ] any of the information in subsection (a)(1) – (3)[ (4) ], is modified, the licensee must provide an updated consultation reflecting any changes and modifications to the techniques used or the parts of the client's body to be massaged.

(c) (No change.)

§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 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, solicitation of 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 August 9, 2021.


Brad Bowman
General Counsel
Texas Department of Licensing and Regulation