BG H.B. 727 75(R)BILL ANALYSIS PUBLIC HEALTH H.B. 727 By: Van de Putte 4-2-97 Committee Report (Amended) BACKGROUND The massage therapy profession, which includes the practice of massage therapy and massage therapy education, is regulated by the Texas Department of Health (TDH) as prescribed by Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes). To become registered as a massage therapist, a person must successfully complete the required state-approved 300-hour course of instruction as offered at private and junior or community college massage schools and by independent massage therapy instructors. A registered massage therapist must also pass a written and practical exam administered by TDH. PURPOSE H.B.727 updates the regulations concerning the practice of massage therapy and massage therapy education and their oversight by TDH. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants rulemaking authority to the Texas Board of Health (board) in SECTION 3 (Article 4512k, Sec. 2(c), Vernon's Texas Civil Statutes) Additionally, the board's rulemaking authority is referenced in SECTION 12(c). SECTION ANALYSIS SECTION 1. Amends Section 1, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Sec. 1. DEFINITIONS. Expands the manipulation of soft tissue definition of "massage therapy" to also include techniques such as: direct pressure, shaking, rocking, assisted stretching, skin lubricants, hydrotherapy, cryotherapy, balneotherapy, and bodywork, but specifies that massage therapy does not constitute physical therapy or athletic training activities. Clarifies the term "massage therapist" to be an individual registered under this Act, as specified. Redefines the terms, as specified, for "massage therapy instructor," "massage school," "instructor," "applicant," and "internship program." Introduces definitions for "commissioner," "advanced program," "advanced program presenter," and "independent massage therapist instructor". Omits the term "advisory council." Makes conforming changes. SECTION 2. Amends Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) by adding Section 1B as follows: Sec. 1B. REGISTRATION REQUIRED. Prohibits practicing or representing to practice massage therapy or using a title such as "massage therapist" without being registered under this Act or exempt. SECTION 3. Amends Section 2, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Sec. 2. MASSAGE THERAPIST REGISTRATION REQUIREMENTS. (a) delineates the requirements for an applicant for registration as a massage therapist to be submission of a written application, evidence of responsibility required by Section 11, and appropriate fees to TDH. Omits language concerning the individual as a massage therapist and any reference to the performance of massage at sexually oriented businesses. Subsection (b) Requires an applicant for examination to present evidence of completion of 300-hours of approved instruction as specified, be licenced, certified, or registered to practice massage therapy in another jurisdiction, or to have practiced as a professional in another jurisdiction for at least five years as specified. Subsection (c) Requires the Texas Board of Health to adopt rules that specify general course content, as specified, and minimum number of hours required for each subject in the 300-hour course of instruction required for registration. Included within the 300 hour course instruction requirements is at least 40 hours of a hands-on internship. Subsection (d) Stipulates certain qualifications for course work as specified. Subsection (e) allows enrolled students, as specified, to perform massage therapy for training purposes and exempts them from registration under this Act. Makes conforming changes. Subsection (f) is added to prohibit a massage therapist from practicing in or for a sexually oriented business regardless of compensation. SECTION 4. Amends Section 2A, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Sec. 2A. MASSAGE SCHOOLS, INDEPENDENT MASSAGE THERAPY INSTRUCTORS, AND INTERNSHIPS. (a) Specifies that any person who seeks to offer the 300-hour course of instruction required for registration as a massage therapist or advanced programs must register as a massage school or an independent massage therapy instructor. Establishes that a school or independent instructor must meet standards as prescribed by board rule and requires that the 300-hour course be approved by TDH. Subsection (b) clarifies that massage therapy instructors, who are employees or retained by a massage therapy school, must also register with TDH. Subsection (c) clarifies that school massage therapy instructors must meet minimum requirements as prescribed by board rule. Subsection (d) adds language to allow an independent massage therapy instructor to also oversee an internship program. Subsection (e) stipulates that a student must successfully complete the education as specified at the school or with an independent massage therapy instructor before entering an internship. Subsection (g) clarifies that a participant in an internship conducted by a massage school must be under supervision as specified. Adds that a student in an internship program conducted by an independent instructor must be under supervision as specified. Subsection (i) omits language referring to the advisory board in regards to internship program qualifications. Subsection (j) requires TDH to regulate all of the 300-hours of course instruction provided by a massage school or an independent massage therapy instructor. Subsections (k) through (m) are revised to include references to independent instructors as well as massage schools. Subsection (n) is added to require a massage school or independent massage therapy instructor to give prior notification and submit the credentials of the advanced program presenter to TDH before offering advanced programs. Subsection (o) is added to stipulate that an advanced program presenter be experienced and credentialed, as specified. Provides that an advanced program presenter is not required to be a registered massage therapist under this Act. SECTION 5. Amends Section 4, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Sec. 4. EXEMPTIONS. Adds exemptions to an employer sponsoring a course, as specified, for its own employees and to trade, business, or professional organizations sponsoring free courses at meetings and conventions. Removes language referring to schools being approved by the Central Education Agency and the exemption for instructors who are otherwise approved to teach in one of the required subject areas. SECTION 6. Amends Section 7(a), (b), (d), and (f), and deletes 7(e) of Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Subsection (a) eliminates references to the advisory council which no longer exists and updates statutory reference to Chapter 2001, Government Code, rather than the Administrative Procedures and Texas Register Act, as providing the manner of the board's rule adoption procedure. Subsection (b) adds language to the requirement that TDH administer this Act to also allow TDH to charge fees to cover administration costs. Subsection (d) eliminates references to the advisory council. Subsection (f) is revised to clarify that hours offered as part of the 300-hour course of instruction required for registration as a massage therapist by "independent" massage therapy instructors and all massage schools are required to be regulated by TDH. SECTION 7. Amends Section 7C, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Sec. 7C. BOARD RULES FOR INDEPENDENT MASSAGE THERAPY INSTRUCTORS. Revises the language of this section by inserting the word "independent" in all references to massage therapy instructors. SECTION 8. Amends Section 11, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) as follows: Sec. 11. REGISTRATION, DENIAL, PROBATION, SUSPENSION OR REVOCATION. Subsection (a) updates the list of persons or entities which may be put on probation or have a registration certificate denied, suspended, or revoked and expands the list of offenses as specified. Conforms penalty language to recent court rulings. Subsection (b) requires TDH to consider the seriousness, the relevance, the extent of any possible criminal opportunity presented, and the relationship of the criminal act to the ability, capacity and fitness of the actor when determining whether to restrict or deny certification due to a factor specified under subsections(a)(8) or (a)(9) of this section . Subsection (c) requires TDH to also consider the extent and nature of the person's past criminal activity, age of the person at time of the crime, time elapsed, the person's conduct and other activities since the crime, evidence of rehabilitation, and other evidence of present fitness including recommendations. Subsection (d) establishes that it is the applicant or registrant responsibility to provide TDH with the information referred to in subsection (c) and requires that the applicant or registrant furnish proof as specified. Subsection (e) notwithstanding Sections 5(c) and 20(a), Article 42.12, Code of Criminal Procedure, allows TDH to include community supervision, a plea, deferred adjudication and other court arraignments in considering certification applications. Omits reference to any individual with crimes involving prostitution or sexual offenses. Subsection (f) adds registration probation placement to denials, suspension, or registration revocations as actions to which an applicant is entitled to a hearing as specified. Makes conforming changes and updates statutory reference regarding the Government Code, Chapter 2001. SECTION 9. Amends Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) by adding Section 11A, entitled "'ADMINISTRATIVE PENALTIES" as follows: Subsection (a) allows TDH to impose administrative penalties against a person who violates this Act or a rule or order adopted under this Act. Subsection (b) allows the penalty to be in an amount not to exceed $1,000. Establishes that each day that a violation continues or occurs is a separate violation for purpose of imposing a penalty. Subsection (c) enumerates the basis for the penalty amount. Subsection (d) stipulates that TDH is allowed to issue a factual report to the commissioner if TDH determines there to be a violation. Requires TDH to make penalty recommendations. Subsection (e) requires TDH to give written notice, as specified, to the person who committed the alleged violation within 14 days of the report's issuance. Allows the notice to be given by certified mail. Provides certain required contents of the notice to be as specified. Subsection (f) establishes that a person has 20 days after receipt of the notice to accept in writing the determination and recommended penalty or to make a written request for a hearing. Subsection (g) requires TDH to issue an order and impose the recommended penalty if the determination is accepted by the person. Subsection (h) requires TDH to set a hearing and give notice of the hearing to the person if requested or no timely response is received. Requires that the hearing is to be held by an administrative law judge as specified. Requires the administrative law judge to make findings of fact and conclusions of law and issue a decision proposal as specified to TDH promptly. Allows TDH, by order, to find that a violation has or has not occurred and impose a penalty based on the judgement. Subsection (i) requires that notice of TDH's order given under Chapter 2001, Government Code, include a statement regarding the right to judicial review. Subsection (j) requires that the person comply as specified within 30 days of TDH's final order. Subsection (k) allows a person, acting under subsection (j)(3), to stay enforcement of the penalty, as specified, or to request the court to stay enforcement of the penalty, as specified, within the 30 day period. Subsection (l) allows TDH to file a contest to an affidavit as specified, under subsection (k)(2) of this section, within 5 days of receipt. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and requires the court to stay the enforcement of the penalty upon findings that the facts are true. Establishes that the burden of proof regarding being financially unable to pay the penalty and give bond as specified is on the person. Subsection (m) allows TDH to refer the matter to the attorney general if the enforcement of the penalty is not stayed and the penalty goes unpaid. Subsection (n) establishes that judicial review of TDH's order be instituted and governed as specified. Subsection (o) allows the court to uphold or reduce the penalty and order the person to pay as specified if the violation is sustained. Requires the court to order that no penalty is owed, if the violation is not sustained. Subsection (p) requires the court to proceed as specified when the judgement becomes final. Requires the court to order the appropriate amount plus accrued interest be remitted as specified. Requires the court to order bond releases as specified. Subsection (q) requires that penalties collected under this section be remitted to the comptroller for deposit in the general revenue fund. Subsection (r) stipulates that all proceedings under this section are subject to Chapter 2001, Government Code. SECTION 10. Amends Sec. 14, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4521k, Vernon's Texas Civil Statutes) as follows: Sec. 14. EFFECT ON LOCAL REGULATION. (a) Provides that this Act supersedes any other regulation as specified. Adds that this provision pertains to legislation relating to the licensing or regulation of massage establishments as well as massage therapists. Subsection (b) prohibits political subdivisions from adopting regulations that are more restrictive for massage therapist or massage establishments than for other health professionals or establishments except as specified. Omits statements pertaining to local regulations and the nonapplicability of this Act. Makes conforming changes. SECTION 11. Repeals Sections 3, 8, 9, and 16, of Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4521k, Vernon's Texas Civil Statutes). SECTION 12. Establishes that the effective date of this Act is September 1, 1997 and that massage therapy instructors, as were defined before the effective date of this Act, are still required to register as specified. Provides that a person or school that was exempt prior to the effective date of this Act, is required to be registered as specified by this Act by March 1, 1998. Establishes that TDH rules in effect on the effective date of this Act remain in effect until the board adopts new rules as specified, unless the rule is in conflict with this Act. SECTION 13. Emergency Clause. EXPLANATION OF AMENDMENTS Amendment 1. Expands the list of specified offenses in Section 8 (Sec. 11(a), Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes) to include: "knowingly providing, or offering to provide diagnosis, or the treatment of illness, injury or disesase." Amendment 2. Adds osteopathic medicine to the fields of practice that are specified as not constituting "message therapy" in Section 1(Sec. 1, Chapter 752, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas Civil Statutes).