79R12595 YDB-F
By: Delisi H.B. No. 1842
Substitute the following for H.B. No. 1842:
By: Gonzales C.S.H.B. No. 1842
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of massage therapists;
providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 455.001(1), (2), (3), (6), (7), and
(9), Occupations Code, are amended to read as follows:
(1) ["Board" means the Texas Board of Health.
[(2)] "Department" means the [Texas] Department of
State Health Services.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(3) "Instructor" means a person who instructs a
student in any section of the course of instruction required for
issuance of [registration as] a massage therapist license.
(6) "Massage school" means an entity that:
(A) teaches at a minimum the course of
instruction required for issuance of [registration as] a massage
therapist license; and
(B) has at least two instructors.
(7) "Massage therapist" means a person who practices
or administers massage therapy to a client for compensation. The
term includes a licensed [registered] massage therapist,
therapeutic massage practitioner, massage technician, masseur,
masseuse, myotherapist, body massager, body rubber, or any
derivation of those titles.
(9) "Massage therapy instructor" means a licensed
[registered] massage therapist who provides to one or more students
instruction approved by the department in massage therapy.
SECTION 2. Sections 455.003 and 455.004, Occupations Code,
are amended to read as follows:
Sec. 455.003. PRACTICES INCLUDED IN MASSAGE THERAPY.
Massage therapy includes the application of hydrotherapy or
temperature for mechanical, thermal, or chemical effect and may
include the use of oil, salt glows, heat lamps, hot and cold packs,
and tub, shower, or cabinet baths.
Sec. 455.004. APPLICABILITY OF CHAPTER. This chapter does
not apply to:
(1) a person licensed in this state as a physician,
chiropractor, physical therapist, nurse, cosmetologist, or
athletic trainer or as a member of a similar profession subject to
state licensing while the person is practicing within the scope of
the license;
(2) a school approved by the Texas Education Agency or
otherwise approved by the state; or
(3) an instructor otherwise approved by the state to
teach in an area of study included in the required course of
instruction for issuance of [registration as] a massage therapist
license.
SECTION 3. Section 455.005(b), Occupations Code, is amended
to read as follows:
(b) This chapter does not affect a local regulation that:
(1) relates to zoning requirements or other similar
regulations for massage establishments;
(2) authorizes or requires an investigation into the
background of an owner or operator of, or an investor in, a massage
establishment; or
(3) does not relate directly to the practice of
massage therapy as performed by a licensed [registered] massage
therapist, including a regulation related to a license holder
listed in Section 455.004, while the therapist:
(A) performs under the applicable licensing law;
and
(B) works with a licensed [registered] massage
therapist.
SECTION 4. The heading to Subchapter B, Chapter 455,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. POWERS AND DUTIES OF EXECUTIVE COMMISSIONER AND
DEPARTMENT [BOARD]
SECTION 5. Section 455.051, Occupations Code, is amended to
read as follows:
Sec. 455.051. GENERAL RULEMAKING AUTHORITY. The executive
commissioner [board] shall adopt rules consistent with this chapter
as necessary for the performance of the department's [its] duties
under this chapter.
SECTION 6. Sections 455.052-455.057, Occupations Code, are
amended to read as follows:
Sec. 455.052. RULES REGARDING MASSAGE ESTABLISHMENTS.
Rules adopted under this chapter relating to a massage
establishment must contain minimum standards for:
(1) the issuance, denial, renewal, suspension,
revocation, or probation of a license [certificate of registration]
under this chapter;
(2) the qualifications of professional personnel;
(3) the supervision of professional personnel;
(4) the equipment essential to the health and safety
of massage establishment personnel and the public;
(5) the sanitary and hygienic conditions of a massage
establishment;
(6) the provision of massage therapy by a massage
establishment;
(7) the records kept by a massage establishment;
(8) the organizational structure of a massage
establishment, including the lines of authority and the delegation
of responsibility;
(9) fire prevention and safety in a massage
establishment;
(10) the inspection of a massage establishment; and
(11) any other aspect of the operation of a massage
establishment necessary to protect massage establishment personnel
or the public.
Sec. 455.053. RULES REGARDING MASSAGE SCHOOLS. Rules
adopted under this chapter relating to a massage school must
contain minimum standards for:
(1) the issuance, denial, renewal, suspension,
revocation, or probation of a license [certificate of registration]
under this chapter;
(2) the qualifications of professional personnel;
(3) the supervision of professional personnel;
(4) the equipment essential to the education, health,
and safety of students, massage school personnel, and the public;
(5) the sanitary and hygienic conditions of a massage
school;
(6) the provision of massage therapy by a massage
school or student;
(7) the maximum number of hours a student may
accumulate in a massage school's internship program before the
student is required to be licensed [register] under this chapter;
(8) the educational and clinical records kept by a
massage school;
(9) the organizational structure of a massage school,
including the lines of authority and the delegation of
responsibility;
(10) fire prevention and safety in a massage school;
(11) the massage school's curriculum and educational
material;
(12) massage school inspections; and
(13) any other aspect of the operation of a massage
school that the department [board] considers necessary to protect
students, massage school personnel, or the public.
Sec. 455.054. RULES REGARDING MASSAGE THERAPISTS. Rules
adopted under this chapter relating to a massage therapist must
contain minimum standards for:
(1) the issuance, denial, renewal, suspension,
revocation, or probation of a license [certificate of registration]
under this chapter;
(2) the qualifications of a massage therapist;
(3) the sanitary and hygienic conditions of the
physical environment in which a massage therapist practices massage
therapy;
(4) the records kept by a massage therapist;
(5) the inspection of the records, equipment, and
sanitary and hygienic conditions of the physical environment used
by a massage therapist in practicing massage therapy; and
(6) any other aspect of the practice of a massage
therapist necessary to protect the public.
Sec. 455.055. RULES REGARDING MASSAGE THERAPY
INSTRUCTORS. Rules adopted under this chapter relating to a
massage therapy instructor must contain minimum standards for:
(1) the issuance, denial, renewal, suspension,
revocation, or probation of a license [certificate of registration]
under this chapter;
(2) the qualifications of a massage therapy
instructor;
(3) the supervision of a student by a massage therapy
instructor;
(4) the maximum number of hours a student may
accumulate in an internship program under the supervision of a
massage therapy instructor before the student is required to be
licensed [register] under this chapter;
(5) the equipment essential to the education, health,
and safety of students and the public;
(6) the sanitary and hygienic conditions of the
physical environment in which a massage therapy instructor teaches;
(7) the provision of massage therapy by a student or a
massage therapy instructor;
(8) the educational and clinical records kept by a
massage therapy instructor;
(9) the curriculum taught and educational material
used by a massage therapy instructor;
(10) the inspection of the records, equipment, and
physical environment of a massage therapy instructor; and
(11) any other aspect of a massage therapy
instructor's instruction or operation of any portion of the course
of instruction required for [registration as] a massage therapist
license.
Sec. 455.056. RULES REGARDING ADVERTISING OR COMPETITIVE
BIDDING [BY REGISTRANT]. (a) The executive commissioner [board]
may not adopt rules restricting advertising or competitive bidding
by a person licensed [registered] under this chapter except to
prohibit false, misleading, or deceptive practices.
(b) In [its] rules to prohibit false, misleading, or
deceptive practices, the executive commissioner [board] may not
include a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the use of a licensed [registered]
person's personal appearance or voice in an advertisement;
(3) relates to the size or duration of an
advertisement by the licensed [registered] person; or
(4) restricts the licensed [registered] person's
advertisement under a trade name.
Sec. 455.057. CONTINUING EDUCATION. The department
[board] shall recognize, prepare, or administer continuing
education programs for persons licensed [registered] under this
chapter. A licensed [registered] person must participate in the
programs to the extent required by the department [board] to keep
the person's license [certificate of registration].
SECTION 7. Section 455.103(b), Occupations Code, is amended
to read as follows:
(b) A memorandum must:
(1) be adopted by rule; and
(2) limit the total amount of the fees charged by the
department and the Texas Education Agency for registering a massage
school to an amount equal to the amount of the fees the department
would charge for licensing [registering] the massage school in the
absence of the memorandum.
SECTION 8. Section 455.104, Occupations Code, is amended to
read as follows:
Sec. 455.104. INSPECTIONS; INVESTIGATIONS. The department
or its authorized representative may enter the premises of an
applicant for a license [certificate of registration] or a license
[certificate] holder at:
(1) reasonable times to conduct an inspection
incidental to the issuance of a license [certificate of
registration]; and
(2) other times that the department considers
necessary to ensure compliance with this chapter and the rules
adopted under this chapter.
SECTION 9. The heading to Subchapter D, Chapter 455,
Occupations Code, is amended to read as follows:
SUBCHAPTER D. LICENSING [REGISTRATION]
SECTION 10. Sections 455.151 and 455.152, Occupations Code,
are amended to read as follows:
Sec. 455.151. LICENSE [REGISTRATION] REQUIRED. (a) Unless
the person is exempt from the licensing [registration] requirement,
a person may not act as a massage therapist, massage school, massage
therapy instructor, or massage establishment unless the person
holds an appropriate license [certificate of registration] issued
under this chapter.
(b) Unless the person is exempt from the licensing
[registration] requirement, a person may not represent that the
person is a massage therapist unless the person holds a license
[certificate of registration] under this chapter.
Sec. 455.152. INELIGIBILITY FOR LICENSE [REGISTRATION].
(a) A person is not eligible for a license [registration] as a
massage establishment, massage school, massage therapist, or
massage therapy instructor if the person is an individual and has
been convicted of, entered a plea of nolo contendere or guilty to,
or received deferred adjudication for an offense involving
prostitution or another sexual offense.
(b) A person convicted of a violation of this chapter is
ineligible for a license [registration] as a massage establishment,
massage school, massage therapist, or massage therapy instructor
until the fifth anniversary of the date of the conviction.
SECTION 11. Sections 455.153-455.156, Occupations Code,
are amended to read as follows:
Sec. 455.153. APPLICATION FOR LICENSE [REGISTRATION]. An
applicant for a license [registration] under this chapter must:
(1) submit an application form provided by the
department; [and]
(2) include with the application the application fee
set by the department; and
(3) for a massage therapist applicant, submit proof
the applicant has successfully completed the requirements adopted
under Section 455.156.
Sec. 455.154. GENERAL PROVISIONS RELATING TO LICENSES
[REGISTRATION]. (a) The holder of a license [certificate of
registration] may exercise all professional rights, honors, and
privileges relating to the practice of massage therapy.
(b) A license [certificate of registration] is the property
of the department and must be surrendered on demand.
Sec. 455.155. LICENSE [REGISTRATION] EXEMPTION [FOR
MASSAGE ESTABLISHMENT]. (a) Section 455.151 does not apply to an
establishment that:
(1) holds a license, permit, certificate, or other
credential issued by this state under another law; and
(2) offers or performs massage therapy under the scope
of that credential.
(b) A licensed [registered] massage therapist who practices
as a solo practitioner is not required to hold a license [register]
as a massage establishment.
(c) The executive commissioner [board] by rule shall
provide for a fair and reasonable procedure to grant exemptions
from the licensing [registration] requirements of this chapter
[section]. The rules must provide that a person is exempt if the
person shows that the advertising or provision of massage therapy
services is incidental to the person's primary enterprise.
(d) A sexually oriented business may not:
(1) hold a license [register] under this chapter; or
(2) operate as a massage establishment under this
chapter.
Sec. 455.156. LICENSE [REGISTRATION] REQUIREMENTS FOR
MASSAGE THERAPIST. (a) The department shall issue a license
[certificate of registration] to each qualified applicant who
applies for [registration as] a massage [message] therapist
license.
(b) An applicant for a license [registration] under this
section must be an individual and:
(1) present evidence satisfactory to the department
[board] that the person:
(A) has satisfactorily completed massage therapy
studies in a [300-hour,] supervised course of instruction of at
least 500 hours provided by a massage therapy instructor, a
licensed [registered] massage school, a state-approved educational
institution, or any combination of instructors or schools, in
which:
(i) at least 200 [125] hours are taught by a
massage therapy instructor and are dedicated to the study of
[Swedish] massage therapy techniques, theory, and practice and
manipulation of soft tissue by hand or through the use of a
mechanical or electrical apparatus, with at least 75 hours
dedicated to Swedish massage techniques, and may include the study
of Eastern techniques and theory [and taught by a massage therapy
instructor];
(ii) at least 165 [50] hours are dedicated
to the study of anatomy, physiology, and pathology and may include
Eastern physiology;
(iii) at least [25 hours are dedicated to
the study of physiology;
[(iv)] 15 hours are dedicated to the study
of hydrotherapy;
(iv) at least 20 [(v) 15] hours are
dedicated to the study of business practices;
(v) at least 10 hours are dedicated to [and]
professional ethics [standards];
(vi) at least 20 hours are dedicated to the
study of health and hygiene; [and]
(vii) at least 40 [50] hours are spent in
hands-on experience in an internship program, provided that the
hours spent in an internship program may not exceed 15 percent of
the total program hours of instruction; and
(viii) at least 30 hours are dedicated to
topics related to the massage profession; or
(B) has practiced massage therapy as a profession
for not less than five years in another state or country that the
department determines does not maintain standards and requirements
of practice and licensing or registration that substantially
conform to the standards and requirements of this state; [and]
(2) pass the state-approved [practical and written
portions of the state] examination; and
(3) be at least 18 years of age.
SECTION 12. Sections 455.1565(a) and (d), Occupations Code,
are amended to read as follows:
(a) Not later than the 30th day after the date a person takes
a licensing [registration] examination under this chapter, the
department shall notify the person of the results of the
examination.
(d) If requested in writing by a person who fails a
licensing [registration] examination administered under this
chapter, the department shall furnish the person with an analysis
of the person's performance on the examination.
SECTION 13. Sections 455.1571-455.158, Occupations Code,
are amended to read as follows:
Sec. 455.1571. APPLICANT LICENSED [REGISTERED] IN ANOTHER
JURISDICTION. (a) The department [board] may waive any
prerequisite to obtaining a license [certificate of registration]
for an applicant for licensing [registration] as a massage
therapist or massage therapy instructor after reviewing the
applicant's credentials and determining that the applicant holds a
license or certificate of registration issued by another
jurisdiction that has licensing or registration requirements
substantially equivalent to those of this state.
(b) The department [board] may waive any prerequisite to
obtaining a license [certificate of registration] for an applicant
for licensing [registration] as a massage therapist or massage
therapy instructor who holds a license or certificate of
registration issued by another jurisdiction with which this state
has a reciprocity agreement. The department [board] may make an
agreement, subject to the approval of the governor, with another
state to allow for licensing [registration] by reciprocity.
Sec. 455.1572. PROVISIONAL LICENSE [REGISTRATION]. (a)
The department [board] may issue a provisional license [certificate
of registration] to an applicant for licensing [registration] as a
massage therapist or massage therapy instructor currently licensed
or registered in another jurisdiction who seeks a license
[certificate of registration] in this state and who:
(1) has been licensed or registered in good standing
as a massage therapist or massage therapy instructor, as
applicable, for at least two years in another jurisdiction,
including a foreign country, that has licensing or registration
requirements substantially equivalent to the requirements of this
chapter;
(2) has passed a national or other examination
recognized by the department [board] relating to the practice of
massage therapy; and
(3) is sponsored by a person licensed [registered] by
the department [board] under this chapter with whom the provisional
license holder [registrant] will practice during the time the
person holds a provisional license [certificate of registration].
(b) The department [board] may waive the requirement of
Subsection (a)(3) for an applicant if the department [board]
determines that compliance with that subsection would be a hardship
to the applicant.
(c) A provisional license [certificate of registration] is
valid until the date the department [board] approves or denies the
provisional license [certificate] holder's application for
licensing [registration]. The department [board] shall issue a
license [certificate of registration] under this chapter to the
provisionally licensed [registered] person if the person:
(1) is eligible for a license [certificate of
registration] under Section 455.1571; or
(2) passes the part of the examination under Section
455.101 that relates to the applicant's knowledge and understanding
of the laws and rules relating to the practice of massage therapy in
this state and:
(A) the department [board] verifies that the
person meets the academic and experience requirements for licensing
[registration] under this chapter; and
(B) the person satisfies any other licensing
[registration] requirements under this chapter.
(d) The department [board] must approve or deny a
provisionally licensed [registered] person's application for a
license [certificate of registration] not later than the 180th day
after the date the provisional license [certificate of
registration] is issued. The department [board] may extend the
180-day period if the results of an examination have not been
received by the department [board] before the end of that period.
(e) The department [board] may establish a fee for a
provisional license [certificate of registration] in an amount
reasonable and necessary to cover the cost of issuing the license
[certificate of registration].
Sec. 455.158. STUDENT EXEMPTION FROM LICENSING
[REGISTRATION] REQUIREMENTS. A student who provides massage
therapy as part of an internship program or without compensation is
exempt from licensing [registration] under this chapter if the
student is enrolled in a state-approved course of instruction that
consists of at least 500 [300] hours.
SECTION 14. Sections 455.159(a) and (b), Occupations Code,
are amended to read as follows:
(a) An internship program must:
(1) meet the qualifications established by the
department [board];
(2) provide a student with a minimum of 40 hours of
hands-on massage therapy experience; and
(3) be conducted on the school grounds or in a clinic
or classroom setting provided by the massage school or massage
therapy instructor.
(b) A student must complete at least [the first] 250 hours
of required training at a massage school or with a massage therapy
instructor before the student is eligible to enter an internship
program.
SECTION 15. Sections 455.160 and 455.161, Occupations Code,
are amended to read as follows:
Sec. 455.160. LICENSE [REGISTRATION] RENEWAL. (a) A
person licensed [registered] under this chapter must periodically
renew the person's license [certificate of registration]. The
license [certificate] expires unless the license [certificate]
holder submits an application for renewal accompanied by the
renewal fee prescribed by the department or by the late fee
prescribed by this section.
(b) The department shall adopt a system under which licenses
[certificates of registration] expire on various dates during the
year. Fees must be prorated so that a licensed [registered] person
pays only for that part of the renewal period for which the license
[registration] is issued until the expiration date of the license
[registration].
(c) A person who is otherwise eligible to renew a license
[certificate of registration] may renew an unexpired license
[registration] by paying the required renewal fee to the department
before the expiration date of the license [registration]. A person
whose license [registration] has expired may not engage in
activities that require a license [registration] until the license
[registration] has been renewed.
(d) A person whose license [registration] has been expired
for 90 days or less may renew the license [registration] by paying
to the department a renewal fee that is equal to 1-1/2 times the
normally required renewal fee.
(e) A person whose license [registration] has been expired
for more than 90 days but less than one year may renew the license
[registration] by paying to the department a renewal fee that is
equal to two times the normally required renewal fee.
(f) A person whose license [registration] has been expired
for one year or more may not renew the license [registration]. The
person may obtain a license [register] by complying with the
requirements and procedures, including the examination
requirements, for obtaining a new license [originally
registering].
(g) Not later than the 30th day before the date a person's
license [registration] is scheduled to expire, the department shall
send written notice of the impending expiration to the person at the
person's last known address according to the records of the
department.
Sec. 455.161. RENEWAL OF EXPIRED LICENSE [REGISTRATION] OF
OUT-OF-STATE PRACTITIONER. (a) A person who was registered or
licensed in this state, moved to another state, and is currently
registered or licensed and has been in practice in the other state
for the two years preceding the date of application may obtain a
license [register] without reexamination.
(b) The person must pay to the department a fee that is equal
to two times the normally required license renewal fee [for
registration].
SECTION 16. The heading to Subchapter E, Chapter 455,
Occupations Code, is amended to read as follows:
SUBCHAPTER E. PRACTICE BY LICENSE [CERTIFICATE] HOLDERS
SECTION 17. Sections 455.201 and 455.202, Occupations Code,
are amended to read as follows:
Sec. 455.201. REFERRAL FROM PHYSICIAN. A person issued a
license [certificate of registration] may receive referrals from a
physician to administer massage therapy.
Sec. 455.202. PRACTICE BY MASSAGE ESTABLISHMENT. A massage
establishment may employ only licensed [registered] massage
therapists to perform massage therapy.
SECTION 18. Sections 455.203(a), (b), and (c), Occupations
Code, are amended to read as follows:
(a) A massage school must meet the minimum standards of
operation established by executive commissioner [board] rule.
(b) An instructor must meet the minimum requirements
established by executive commissioner [board] rule.
(c) A massage school or massage therapy instructor licensed
[registered] under this chapter shall give each prospective student
a notice that clearly states the number of course hours that the
student must successfully complete before the student is eligible
to hold [register as] a massage therapist license under this
chapter.
SECTION 19. Section 455.204, Occupations Code, is amended
to read as follows:
Sec. 455.204. DISPLAY OF LICENSE [CERTIFICATE]. (a) A
person who holds a license [certificate of registration] shall
publicly display the license [certificate] as specified by the
department [board].
(b) Each massage establishment must post in plain sight the
license [certificate of registration] for each massage therapist
who practices in the massage establishment.
(c) Each massage school, massage establishment, massage
therapy instructor, or massage therapist shall present the person's
license [certificate of registration] on the request of the
department, an authorized representative of the department, or a
peace officer.
SECTION 20. Sections 455.205(b) and (c), Occupations Code,
are amended to read as follows:
(b) A massage school or a massage therapy instructor may not
award a diploma or a certificate of completion to a student that has
not successfully completed at least [require the successful
completion of more course hours than] the number of course hours
required for licensing [registration] as a massage therapist under
this chapter.
(c) A person who is not licensed [registered] under this
chapter may not use the word "massage" on any form of advertising
unless the person is expressly exempt from the licensing
[registration] requirements of this chapter.
SECTION 21. The heading to Subchapter F, Occupations Code,
is amended to read as follows:
SUBCHAPTER F. LICENSE [REGISTRATION] DENIAL OR
DISCIPLINARY PROCEDURES
SECTION 22. Section 455.251, Occupations Code, is amended
to read as follows:
Sec. 455.251. GROUNDS FOR LICENSE [REGISTRATION] DENIAL OR
DISCIPLINARY ACTION. (a) The department [board] may refuse to
issue a license [certificate of registration] to a person and shall
suspend, revoke, or refuse to renew the license [certificate of
registration] of a person or shall reprimand a person licensed
[registered] under this chapter if the person:
(1) obtains a license [certificate of registration] by
fraud, misrepresentation, or concealment of material facts;
(2) sells, barters, or offers to sell or barter a
license [certificate of registration];
(3) violates a rule adopted by the executive
commissioner [board];
(4) engages in unprofessional conduct as defined by
executive commissioner [board] rule that endangers or is likely to
endanger the health, welfare, or safety of the public;
(5) violates an order or ordinance adopted by a
political subdivision under Chapter 243, Local Government Code; or
(6) violates this chapter.
(b) The department shall revoke the license [certificate of
registration] of a person licensed [registered] as a massage
therapist or massage therapy instructor if:
(1) the person is convicted of, enters a plea of nolo
contendere or guilty to, or receives deferred adjudication for an
offense involving prostitution or another sexual offense; or
(2) the department determines the person has practiced
or administered massage therapy at or for a sexually oriented
business.
(c) The department shall revoke the license [certificate of
registration] of a person licensed [registered] as a massage school
or massage establishment if the department determines that:
(1) the school or establishment is a sexually oriented
business; or
(2) an offense involving prostitution or another
sexual offense that resulted in a conviction for the offense, a plea
of nolo contendere or guilty to the offense, or a grant of deferred
adjudication for the offense occurred on the premises of the school
or establishment.
SECTION 23. Section 455.252(a), Occupations Code, is
amended to read as follows:
(a) A person whose application for a license [certificate of
registration] is denied, whose license [certificate of
registration] is suspended or revoked, or who has been reprimanded
is entitled to a hearing before the department if the person submits
a written request to the department.
SECTION 24. Section 455.253, Occupations Code, is amended
to read as follows:
Sec. 455.253. PROBATION. The department [board] may place
on probation a person, including a massage school, massage therapy
instructor, or massage establishment, whose license [certificate
of registration] is suspended. If a license [registration]
suspension is probated, the department [board] may require the
person to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
department [board]; or
(3) continue or review professional education until
the person attains a degree of skill satisfactory to the department
[board] in those areas that are the basis of the probation.
SECTION 25. Sections 455.254(a) and (b), Occupations Code,
are amended to read as follows:
(a) The department shall temporarily suspend the license
[certificate of registration] of a license [certificate] holder if
the department determines from the evidence or information
presented to it that continued practice by the license
[certificate] holder would constitute a continuing and imminent
threat to the public welfare.
(b) A license [certificate of registration] may be
suspended under this section without notice or hearing on the
complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
SECTION 26. Section 455.304(b), Occupations Code, is
amended to read as follows:
(b) If the person accepts the department's determination,
the executive commissioner [of public health] or the commissioner's
designee by order shall approve the determination and require the
person to pay the recommended penalty.
SECTION 27. Section 455.305(b), Occupations Code, is
amended to read as follows:
(b) The hearings examiner shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the executive commissioner [of
public health] or the commissioner's designee a proposal for
decision as to the occurrence of the violation, and, if the examiner
determines a penalty is warranted, the amount of the proposed
administrative penalty.
SECTION 28. Section 455.306, Occupations Code, is amended
to read as follows:
Sec. 455.306. DECISION BY EXECUTIVE COMMISSIONER. (a)
Based on the findings of fact, conclusions of law, and
recommendations of the hearings examiner, the executive
commissioner [of public health] or the commissioner's designee by
order may determine that:
(1) a violation occurred and may impose an
administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the
person. The notice must include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) the amount of any penalty imposed; and
(3) a statement of the right of the person to judicial
review of the order.
SECTION 29. Section 455.310(b), Occupations Code, is
amended to read as follows:
(b) The department may assess reasonable expenses and costs
against a person in an administrative hearing if, as a result of the
hearing, an administrative penalty is assessed against the person.
The person shall pay expenses and costs assessed under this
subsection not later than the 30th day after the date the order of
the executive commissioner [of public health] or the commissioner's
designee requiring the payment of expenses and costs is final. The
department may refer the matter to the attorney general for
collection of expenses and costs.
SECTION 30. Sections 455.351(a) and (b), Occupations Code,
are amended to read as follows:
(a) The attorney general, a district or county attorney, or
the department may institute an action for injunctive relief to
restrain a violation by a person who appears to be in violation of
or threatening to violate this chapter or a rule adopted by the
executive commissioner [board] under this chapter.
(b) The attorney general, a district or county attorney, or
the department may institute an action to collect a civil penalty
from a person who appears to be in violation of this chapter or a
rule adopted by the executive commissioner [board] under this
chapter. The amount of a civil penalty shall be not less than $100
or more than $1,000 for each violation.
SECTION 31. Section 455.352(a), Occupations Code, is
amended to read as follows:
(a) A person commits an offense if the person is required to
be licensed [registered] under this chapter and the person:
(1) knowingly violates Section 455.151, 455.159,
455.202, 455.203(a) or (c), 455.204(b) or (c), or 455.205; or
(2) collects a fee or any other form of compensation
for massage therapy without being licensed [registered] under this
chapter.
SECTION 32. Sections 455.102 and 455.157, Occupations Code,
are repealed.
SECTION 33. (a) As soon as practicable after the effective
date of this Act, the Department of State Health Services shall
prescribe the forms and procedures and the executive commissioner
of the Health and Human Services Commission shall adopt the rules
that are necessary to implement Chapter 455, Occupations Code, as
amended by this Act.
(b) The changes in law made by this Act with regard to the
requirements for issuing a license under Chapter 455, Occupations
Code, apply only to an application filed with the Department of
State Health Services on or after September 1, 2007. An application
filed before that date is governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose.
(c) The Department of State Health Services shall treat a
person who holds a certificate of registration under Chapter 455,
Occupations Code, immediately before the effective date of this
Act, as if the person holds a license under Chapter 455, Occupations
Code, as amended by this Act. A person who holds a certificate of
registration under Chapter 455, Occupations Code, on the effective
date of this Act is entitled to issuance of a license on expiration
of the certificate of registration if the person otherwise meets
the requirements for renewal of a license.
(d) A person who holds a certificate of registration under
Chapter 455, Occupations Code, immediately before the effective
date of this Act, or is issued a certificate of registration under
Subsection (b) of this section, and otherwise complies with Chapter
455 is not subject to disciplinary action or penalties, including a
criminal penalty under Section 455.352, Occupations Code, as
amended by this Act, for failure to hold a license under Chapter 455
until the certificate of registration's expiration date.
SECTION 34. This Act takes effect September 1, 2005.