Proposed Repeal of Duplicate Massage Therapy Administrative Rules

Chapter 147. Massage Therapy Program
Proposal Filed: January 18, 2018 – Published in the Texas Register:  February 2, 2018
Deadline for Public Comment: March 5, 2018

[Strike-thru text] is deleted language.

The Texas Department of Licensing and Regulation (Department) proposes the repeal of existing rules at 16 Texas Administrative Code (TAC), Chapter 147, §§147.1 - 147.55, regarding the Massage Therapy program.

JUSTIFICATION AND EXPLANATION OF THE RULES

The Texas Legislature enacted Senate Bill 202 (S.B. 202), 84th Legislature, Regular Session (2015), which, in part, transferred 13 occupational licensing programs in two phases from the Department of State Health Services (DSHS) to the Texas Commission of Licensing and Regulation (Commission) and the Department. The Commission and Department completed the Phase 1 transition of seven programs on October 3, 2016.

Under Phase 2, the following six programs were transferred from DSHS to the Commission and the Department: (1) Laser Hair Removal, Texas Health and Safety Code, Chapter 401, §§401.501 - 401.522; (2) Massage Therapy, Texas Occupations Code, Chapter 455; (3) Code Enforcement Officers, Texas Occupations Code, Chapter 1952; (4) Sanitarians, Texas Occupations Code, Chapter 1953; (5) Mold Assessors and Remediators, Texas Occupations Code, Chapter 1958; and (6) Offender Education Programs, Alcoholic Beverage Code, Chapter 106, §106.115 (Alcohol Education Program for Minors); Transportation Code, Chapter 521, Sections §§521.374 - 521.376 (Drug Offender Education Program); Code of Criminal Procedure, Chapter 42A, Articles 42A.403, 42A.405 and 42A.406 (formerly Chapter 42, Article 42.12, §13(h)) (DWI Education Program); and Code of Criminal Procedure, Chapter 42A, Articles 42A.404, 42A.405, and 42A.406 (formerly Chapter 42, Article 42.12, §13(j)) (DWI Intervention Program). The statutory amendments transferring regulation of these six Phase 2 programs from DSHS to the Commission and the Department took effect on September 1, 2017.

On August 18, 2017, the Commission adopted its own set of rules for the Massage Therapy program located at 16 TAC Chapter 117. The Commission’s rules were effective November 1, 2017. (42 TexReg 4991). The Department officially commenced all regulatory functions for the Massage Therapy program on November 1, 2017. 

The current 16 TAC Chapter 147 rules were transferred from DSHS to be repealed to eliminate possible industry and public confusion (42 TexReg 6202).  These rules were formerly located at 25 TAC Chapter 140, Subchapter H. The proposed repeal is necessary to complete the implementation of S.B. 202.

SECTION- BY- SECTION SUMMARY

The proposed repeal of §§147.1-147.55 eliminates possible industry and public confusion by removing duplicate, obsolete, and inactive rules for the Massage Therapy program.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Brian E. Francis, Executive Director, has determined that for each year of the first five years the proposed repeal is 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 repeal. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government costs.

Mr. Francis has determined that for each year of the first five years the proposed repeal is 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 repeal. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on state or local government revenues.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Francis has determined that the proposed repeal will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on the local economy. 

PUBLIC BENEFITS

Mr. Francis also has determined that for each year of the first five-year period the proposed repeal is in effect, the public will benefit from the elimination of duplicate, obsolete, and inactive rules and the elimination of confusion that would result from having two sets of rules for the Massage Therapy program in Chapter 16 of the Texas Administrative Code. 

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Francis has determined that for each year of the first five-year period the proposed repeal is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeal. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no economic costs to persons required to comply with the rules.

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

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed repeal. 16 TAC Chapter 117 has been implemented and therefore the rules in the proposed repeal are obsolete and have no effect on small businesses, micro-businesses, or rural communities.

Since the agency has determined that the proposed repeal will have no adverse economic effect on small businesses, micro-businesses or rural communities, preparation of an Economic Impact Statement and Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

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

Under Government Code §2001.0045, a state agency may not adopt a proposed rule if the fiscal note states that the rule imposes a cost on regulated persons, including another state agency, a special district, or a local government, unless the state agency: (a) repeals a rule that imposes a total cost on regulated persons that is equal to or greater than the total cost imposed on regulated persons by the proposed rule; or (b) amends a rule to decrease the total cost imposed on regulated persons by an amount that is equal to or greater than the cost imposed on the persons by the rule.  There are exceptions for certain types of rules under §2001.0045(c).

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

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal.  For the first five years the proposed repeal will be in effect, the agency has determined the following:

(1) The proposed repeal does not create or eliminate a government program.
(2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions.
(3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency.
(4) The proposed repeal does not require an increase or decrease in fees paid to the agency.
(5) The proposed repeal does not create a new regulation.
(6) The proposed repeal does repeal an existing regulation. The transferred rules from DSHS are proposed for repeal because they are duplicative, obsolete, and inactive.
(7) The proposed repeal does not increase or decrease the number of individuals subject to the rule’s applicability.
(8) The proposed repeal does not positively or adversely affect this state’s economy.

PUBLIC COMMENTS

Comments on the proposal may be submitted by mail to Pauline Easley, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711; or by facsimile to (512) 475-3032, or electronically to erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The repeal is proposed under Texas Occupations Code, Chapter 51, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposal are those set forth in Texas Occupations Code, Chapters 51 and 455.  No other statutes, articles, or codes are affected by the proposal.

[§147.1 Definitions.]
[§147.2 Fees.]
[§147.3 Processing Applications.]
[§147.4 General Ethical Requirements.]
[§147.5 Consultation Document.]
[§147.6 Sexual Misconduct.]
[§147.7 Advertising.]
[§147.8 Massage Therapy Licenses.]
[§147.9 Qualifications for Licensure as a Massage Therapist.]
[§147.10 Massage Therapist Application Procedures and Documentation.]
[§147.11 Provisional Massage Therapist License.]
[§147.12 Examinations Required for Licensure as a Massage Therapist.]
[§147.13 Massage Therapist License Renewal.]
[§147.14 Hour Requirements for Continuing Education for Massage Therapists.]
[§147.15 Acceptable Continuing Education for Massage Therapists.]
[§147.16 Activities Unacceptable as Continuing Education for Massage Therapists.]
[§147.17 Pre-approved Continuing Education Providers.]
[§147.18 Reporting Continuing Education.]
[§147.19 Massage School General Provisions and Inspections.]
[§147.20 Massage School Application Procedures and Documentation.]
[§147.21 Massage School Administrative Personnel.]
[§147.22 Massage School Instructors.]
[§147.23 Massage School Financial Stability.]
[§147.24 Change of Massage School Ownership.]
[§147.25 Massage School License Renewal.]
[§147.26 Massage School Locations.]
[§147.27 Massage School Curriculum Outline and Internship.]
[§147.28 Advanced Course Work.]
[§147.29 Massage School Admission Requirements.]
[§147.30 Massage School Enrollment Procedures.]
[§147.31 Massage School Tuition and Fees.]
[§147.32 Massage School Conduct Policy.]
[§147.33 Massage School Cancellation and Refund Policy.]
[§147.34 Massage School Minimum Progress Standards.]
[§147.35 Massage School Attendance Standards.]
[§147.36 Massage School Equipment and Facility Requirements.]
[§147.37 Massage School Transcripts and Records.]
[§147.38 Student Grievances.]
[§147.39 Massage School Fire Safety.]
[§147.40 Massage School Sanitation.]
[§147.41 Massage Establishment Application Procedures and Licensure.]
[§147.42 General Requirements for Massage Establishments.]
[§147.43 Sanitation Requirements for Massage Establishments.]
[§147.44 Massage Establishment Renewal.]
[§147.45 Massage Establishment Exemptions.]
[§147.46 Massage Establishment Change of Ownership or Change of Location.]
[§147.47 Filing Complaints.]
[§147.48 Investigation of Complaints.]
[§147.49 Grounds for Denial of License or Disciplinary Action.]
[§147.50 Formal Hearings.]
[§147.51 Suspension of License for Failure to Pay Child Support.]
[§147.52 Informal Disposition.]
[§147.53 Licensing of Persons with Criminal Background.]
[§147.54 Request for Criminal History Evaluation Letter.]
[§147.55 Licensing of Military Service Members, Military Veterans, and Military Spouses.]

REVIEW BY AGENCY COUNSEL

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency’s legal authority.

Filed with the Office of the Secretary of State, on January 18, 2018.

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