79R9837 MSE-F
By: Truitt H.B. No. 3178
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of laser hair removal facilities;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 9, Occupations Code, is amended by adding
Chapter 1604 to read as follows:
CHAPTER 1604. LASER HAIR REMOVAL
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1604.001. DEFINITIONS. In this chapter:
(1) "Certified laser hair removal professional" means
a person authorized under this chapter to perform laser hair
removal.
(2) "Department" means the Department of State Health
Services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Laser hair removal" means the use of a laser or
pulsed light device for nonablative procedures for the removal of
hair.
(5) "Laser hair removal facility" means a business
location that provides laser hair removal.
(6) "Laser or pulsed light device" means a device
approved by the department and the United States Food and Drug
Administration and registered with the department for laser hair
removal.
(7) "Laser safety officer" means an individual working
at a laser hair removal facility who is responsible for regularly
inspecting the laser equipment, safety eyewear, logs,
recordkeeping, and annual inspection of the laser hair removal
facility.
(8) "Operator" means the owner of a laser hair removal
facility, an agent of an owner, or an independent contractor of a
laser hair removal facility.
Sec. 1604.002. PRACTICE OF MEDICINE. (a) Laser hair
removal procedures under this chapter are neither the practice of
medicine nor a medical procedure.
(b) This chapter does not authorize a person to engage in
the practice of medicine in violation of Subtitle B, Title 3.
[Sections 1604.003-1604.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF EXECUTIVE COMMISSIONER AND
DEPARTMENT
Sec. 1604.051. RULES. The executive commissioner shall
adopt rules as necessary to implement this chapter.
Sec. 1604.052. INSPECTION. (a) The department or an
authorized agent may enter and inspect a laser hair removal
facility at a reasonable time to determine compliance with this
chapter.
(b) A person who is required to maintain records under this
chapter or a person in charge of the custody of those records shall,
at the request of the department or an authorized agent or health
authority, permit access to copy or verify the records at a
reasonable time.
Sec. 1604.053. AUTHORITY TO SET FEES. The executive
commissioner by rule shall set fees required by this chapter in
amounts necessary to cover the costs of administering the programs
to which the fees relate.
Sec. 1604.054. RECORDS. The executive commissioner shall
adopt rules describing the records that a laser hair removal
facility must keep, including a record of:
(1) the name of the person on whom a procedure is
performed;
(2) the date and time of the procedure;
(3) the signature of the laser hair removal technician
who performed the procedure; and
(4) a summary of the procedure, including the affected
part of the body, the outcome of the procedure, and any follow-up
required.
Sec. 1604.055. EXAMINATION. The executive commissioner may
adopt rules to govern the development and administration of an
examination for an applicant under this chapter.
Sec. 1604.056. APPLICATION PROCESS. (a) An application
for a certificate or license under this chapter must be made on a
form prescribed by the executive commissioner and provided by the
department.
(b) The application must require an applicant to provide
sworn statements relating to the applicant's education and to
provide other information required by the department.
[Sections 1604.057-1604.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE FOR INDIVIDUALS
Sec. 1604.101. CERTIFICATE REQUIRED. (a) A person may not
perform or attempt to perform laser hair removal unless the person
holds the appropriate certificate under this subchapter.
(b) This chapter does not require a health professional
licensed under another law to hold a certificate under this chapter
to perform laser hair removal if the performance of laser hair
removal is within the scope of that professional's practice as
determined by the professional's licensing board.
Sec. 1604.102. ELIGIBILITY FOR LASER HAIR REMOVAL
PROFESSIONAL CERTIFICATE. An applicant for a laser hair removal
professional certificate must:
(1) be certified by a recognized certifying agency,
including the Society for Clinical and Medical Hair Removal or
another certification entity approved by the department; and
(2) meet the requirements for a senior laser hair
removal technician certificate in Section 164.103.
Sec. 1604.103. ELIGIBILITY FOR SENIOR LASER HAIR REMOVAL
TECHNICIAN CERTIFICATE. (a) Except as provided by Subsection (b),
an applicant for a senior laser hair removal technician certificate
must:
(1) have at least 24 hours of training in safety, laser
physics, skin typing, skin reactions, treatment protocols, and
posttreatment protocols; and
(2) have performed at least 100 laser hair removal
procedures and performed or supervised at least 300 procedures.
(b) The qualifications for eligibility for an applicant for
a senior laser hair removal certificate who is a licensed health
professional shall be established by the entity that issues
licenses for that profession.
Sec. 1604.104. ELIGIBILITY FOR LASER HAIR REMOVAL
TECHNICIAN CERTIFICATE. (a) An applicant for a laser hair removal
technician certificate must:
(1) have at least 24 hours of training in safety, laser
physics, skin typing, skin reactions, treatment protocols, and
posttreatment protocols; and
(2) have performed at least 100 supervised or
preceptored laser hair removal procedures.
(b) A laser hair removal technician must work directly under
the supervision of a senior laser hair removal technician.
Sec. 1604.105. ELIGIBILITY FOR LASER HAIR REMOVAL
APPRENTICE-IN-TRAINING CERTIFICATE. (a) An applicant for a laser
hair removal apprentice-in-training certificate must have at least
24 hours of training in safety, laser physics, skin typing, skin
reactions, treatment protocols, and posttreatment protocols.
(b) A laser hair removal apprentice-in-training must work
directly under the supervision of a senior laser hair removal
technician.
Sec. 1604.106. CONTINUING EDUCATION. The department shall
recognize, prepare, or administer continuing education programs
for certificate holders. A certificate holder must participate in
the programs to the extent required by department rule to renew the
person's certificate.
[Sections 1604.107-1604.150 reserved for expansion]
SUBCHAPTER D. LICENSING OF FACILITIES
Sec. 1604.151. LICENSE REQUIRED. (a) A person may not
operate a laser hair removal facility unless the person holds a
license issued under this subchapter to operate the facility.
(b) A separate license is required for each laser hair
removal facility.
Sec. 1604.152. TEMPORARY LICENSE. (a) If a laser hair
removal facility's certified laser hair removal professional
leaves the facility, the department shall issue to the facility a
temporary license to continue operating while the facility's senior
laser hair removal technician immediately pursues certification as
a certified laser hair removal professional.
(b) The facility license holder must submit an application
for a temporary license to the department not later than the 10th
day after the date the certified laser hair removal professional
leaves the facility.
(c) Except as provided by Subsection (d), a temporary
license issued under this section expires on the 90th day after the
date the department issues the temporary license.
(d) The department may renew a temporary license for an
additional 90 days if circumstances beyond the facility license
holder's control prevent compliance with the certification
requirements for the facility's senior laser hair removal
technician under Section 1604.103, as determined by the department.
[Sections 1604.153-1604.200 reserved for expansion]
SUBCHAPTER E. LICENSE AND CERTIFICATE RENEWAL
Sec. 1604.201. EXPIRATION OF CERTIFICATE OR LICENSE. The
executive commissioner by rule may adopt a system under which
certificates and licenses expire on various dates during the year.
Sec. 1604.202. RENEWAL OF CERTIFICATE OR LICENSE. (a) A
certificate or license expires on the second anniversary of the
date of issuance.
(b) A person must renew the person's certificate or license
on or before the expiration date.
(c) The department shall issue a renewal certificate or
license on receipt of a renewal application in the form prescribed
by the executive commissioner, accompanied by a renewal fee in an
amount equal to the original certificate or license fee.
[Sections 1604.203-1604.250 reserved for expansion]
SUBCHAPTER F. PRACTICE BY LICENSE OR CERTIFICATE HOLDER
Sec. 1604.251. DISPLAY OF LICENSE OR CERTIFICATE. A person
holding a license or certificate under this chapter shall display
the person's license or certificate in an open public area of the
laser hair removal facility.
Sec. 1604.252. GROUNDS FOR REFUSING, REVOKING, OR
SUSPENDING LICENSE OR CERTIFICATE. A license or certificate may be
denied or, after a hearing, revoked or suspended if the applicant or
license or certificate holder:
(1) fails to pay a license or certificate fee or an
annual renewal fee for a license or certificate;
(2) secures or attempts to secure a license or
certificate by fraud or deceit; or
(3) violates this chapter or a rule adopted or order
issued under this chapter.
Sec. 1604.253. RETURN OF LICENSE TO DEPARTMENT. A license
issued under this chapter must be returned to the department if the
laser hair removal facility:
(1) ceases to operate as a business permanently;
(2) changes ownership;
(3) changes location; or
(4) changes the name of the business under which the
facility operates.
[Sections 1604.254-1604.300 reserved for expansion]
SUBCHAPTER G. OPERATION OF LASER HAIR REMOVAL FACILITY
Sec. 1604.301. LASER OR PULSED LIGHT DEVICE. (a) A laser
or pulsed light device used for laser hair removal in a laser hair
removal facility must comply with all applicable federal and state
laws and regulations.
(b) The department may enforce Chapter 431, Health and
Safety Code, against a person who adulterates or misbrands a laser
or pulsed light device. The department may investigate a person
accused of adulterating or misbranding a laser or pulsed light
device.
Sec. 1604.302. CUSTOMER NOTICE; LIABILITY. (a) A laser
hair removal facility shall give each customer a written statement
outlining the relevant risks associated with laser hair removal,
including a warning that failure to use the eye protection provided
to the customer by the laser hair removal facility may result in
damage to the eyes.
(b) The executive commissioner shall adopt rules relating
to the customer notice.
(c) Compliance with the notice requirement does not affect
the liability of the laser hair removal facility operator or a
manufacturer of a laser or pulsed light device.
Sec. 1604.303. WARNING SIGNS. (a) A laser hair removal
facility shall post a warning sign as prescribed by the executive
commissioner in a conspicuous location readily visible to a person
entering the facility. The sign must inform the customer that the
customer may call the department at the department's toll-free
telephone number.
(b) The executive commissioner shall adopt rules specifying
the size, design, and graphic design of the sign, with wording
listing the potential dangers involved.
(c) The department shall include with a license application
and an application for renewal of a license a description of the
design standards required for a sign under this section.
Sec. 1604.304. OPERATIONAL REQUIREMENTS. A laser hair
removal facility shall have a certified laser hair removal
professional present to supervise the laser hair removal procedures
performed at the facility during the facility's operating hours.
Sec. 1604.305. SAFETY. (a) A laser hair removal facility
operator must keep records required by Section 1604.054 and is
responsible for maintaining the laser hair removal facility's
compliance with the regulations under this chapter and department
rules relating to laser and pulsed light devices.
(b) A laser hair removal facility operator may not claim,
advertise, or distribute promotional materials that claim that
laser hair removal is free from risk.
Sec. 1604.306. CONSULTING PHYSICIAN. (a) A laser hair
removal facility must employ or contract with a consulting
physician to:
(1) establish proper protocols for the services
provided at the facility; and
(2) assist the laser hair removal facility in the
preparation and periodic review of the facility's protocols.
(b) A facility must document with the department the
facility's relationship with a consulting physician.
(c) A consulting physician must be available for emergency
consultation with the facility.
(d) This chapter does not relieve a consulting physician or
another health care professional from complying with regulations
prescribed by an applicable state or federal agency.
Sec. 1604.307. DISCLOSURE OF RECORD PROHIBITED; EXCEPTION.
(a) Except as provided by Subsection (b), an operator or other
person may not disclose a customer record required to be kept by
Section 1604.054.
(b) An operator or other person may disclose a customer
record if:
(1) the customer or a person authorized to act on
behalf of the customer requests the record;
(2) the department or an authorized agent or health
authority requests the record under Section 1604.052;
(3) the customer consents in writing to disclosure of
the record to another person;
(4) the customer is a victim, witness, or defendant in
a criminal proceeding and the record is relevant to that
proceeding;
(5) the record is requested in a criminal or civil
proceeding by court order or subpoena; or
(6) disclosure is otherwise required by law.
[Sections 1604.308-1604.350 reserved for expansion]
SUBCHAPTER H. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1604.351. CIVIL PENALTY; INJUNCTION. (a) If, after
actual notice has been given to an individual and the individual has
been given a reasonable time to correct the violation, it appears
that a person has continued to violate or is violating this chapter
or an order issued or a rule adopted under this chapter, the
department may ask the attorney general, the district or county
attorney, or the municipal attorney of a municipality in the
jurisdiction where the violation is alleged to have occurred or may
occur, to institute an action for:
(1) a permanent or temporary injunction, temporary
restraining order, or other appropriate remedy if the department
shows that the person has engaged in or is engaging in a violation;
(2) the assessment and recovery of a civil penalty; or
(3) both injunctive relief and a civil penalty.
(b) A civil penalty may be not more than $5,000 a day for
each violation. Each day the violation occurs constitutes a
separate violation for the purposes of the assessment of a civil
penalty.
(c) Venue for a suit brought under this section is the
municipality or county in which the violation occurred or in Travis
County.
(d) A civil penalty recovered in an action instituted by a
local government under this section shall be paid to the local
government.
(e) The executive commissioner or the attorney general may
each recover reasonable expenses incurred in obtaining injunctive
relief or a civil penalty under this section, including
investigation and court costs, reasonable attorney's fees, witness
fees, and other expenses. The expenses recovered by the executive
commissioner under this section shall be used for the
administration and enforcement of this chapter. The expenses
recovered by the attorney general shall be used by the attorney
general.
Sec. 1604.352. EMERGENCY ORDER. (a) The executive
commissioner or the executive commissioner's designee may issue an
emergency order relating to the operation of a laser hair removal
facility in the department's jurisdiction if the executive
commissioner or the executive commissioner's designee determines
that:
(1) operation of the laser hair removal facility
creates or poses an immediate and serious threat to human life or
health; and
(2) other procedures available to the department to
remedy or prevent the threat will result in unreasonable delay.
(b) The executive commissioner or the executive
commissioner's designee may issue an emergency order without notice
or a hearing if the executive commissioner or the designee
determines notice or a hearing is not practical under the
circumstances.
(c) If an emergency order is issued without a hearing, the
department shall determine a time and place for a hearing at which
the emergency order is affirmed, modified, or set aside. The
hearing shall be held under rules of the department.
[Sections 1604.353-1604.400 reserved for expansion]
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 1604.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
department may impose an administrative penalty on a person
licensed under this chapter who violates this chapter or a rule or
order adopted under this chapter.
Sec. 1604.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may be not more than $5,000 for
each violation. Each day a violation continues or occurs is a
separate violation for the purpose of imposing a penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 1604.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the executive commissioner or the executive commissioner's
designee determines that a violation occurred, the executive
commissioner or the designee may issue to the department a report
stating:
(1) the facts on which the determination is based; and
(2) the executive commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
executive commissioner or the executive commissioner's designee
shall give written notice of the report to the person. The notice
must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 1604.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Within 10 days after the date the person receives the notice, the
person in writing may:
(1) accept the determination and recommended
administrative penalty of the executive commissioner or the
executive commissioner's designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the executive commissioner or the executive
commissioner's designee, the department by order shall approve the
determination and impose the recommended penalty.
Sec. 1604.405. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
executive commissioner or the executive commissioner's designee
shall set a hearing and give written notice of the hearing to the
person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the department a
proposal for a decision about the occurrence of the violation and
the amount of a proposed administrative penalty.
Sec. 1604.406. DECISION BY DEPARTMENT. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the department by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the department's order given to the person
must include a statement of the right of the person to judicial
review of the order.
Sec. 1604.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the department's order becomes
final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the department's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
executive commissioner or the executive commissioner's designee by
certified mail.
(c) If the executive commissioner or the executive
commissioner's designee receives a copy of an affidavit under
Subsection (b)(2), the executive commissioner or the designee may
file with the court, within five days after the date the copy is
received, a contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 1604.408. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 1604.409. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 1604.410. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 1604.411. ADMINISTRATIVE PROCEDURE. A proceeding
under this subchapter is a contested case under Chapter 2001,
Government Code.
SECTION 2. (a) Not later than September 1, 2006, a laser
hair removal facility in operation on the effective date of this Act
must obtain licenses and certificates required by Chapter 1604,
Occupations Code, as added by this Act.
(b) Not later than March 1, 2006, the executive commissioner
of the Health and Human Services Commission shall adopt rules as
required by Chapter 1604, Occupations Code, as added by this Act.
SECTION 3. This Act takes effect September 1, 2005, except
that Sections 1604.101, 1604.151, and 1604.304, Occupations Code,
and Subchapters H and I, Chapter 1604, Occupations Code, as added by
this Act, take effect March 1, 2006.