80R9546 BEF-F

By: Jackson H.B. No. 2957

A BILL TO BE ENTITLED

AN ACT

relating to the licensing and regulation of massage therapy; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 455.001, Occupations Code, is amended by amending Subdivisions (1), (4), (5), (6), (7), and (8) and adding Subdivisions (1-a), (1-b), and (8-a) to read as follows:

(1) "Client" means a person who seeks or receives massage therapy.

(1-a) "Continuing education provider" means a person licensed by the department to offer continuing education for massage therapists.

(1-b) "Department" means the Department of State Health Services.

(4) "Internship program" means a program supervised by a licensed massage therapy instructor in which a student provides massage therapy to the public.

(5) "Massage establishment" means a place of business that employs or contracts with a licensed massage therapist and advertises or offers massage therapy [or other massage services]. The term includes a place of business that advertises or offers any service described by a derivation of the term [terms] "massage therapy[" or "other massage services]."

(6) "Massage school" means 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; and

(C) holds a massage school license.

(7) "Massage therapist" means a person who holds a massage therapist license and advertises, 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.

(8) "Massage therapy" means the manipulation of the soft tissue of the human body by a person who holds a massage therapist license. Massage therapy may be provided by hand or through a mechanical or electrical apparatus [for the purpose of body massage] and includes effleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes, and Swedish gymnastics. Massage therapy may include the use of oil, lotion, lubricant, salt glow, heat lamps, hot and cold packs, whirlpool tubs, shower, jacuzzi, sauna, steam, or cabinet bath. Massage therapy does not include the practice of chiropractic, energetic manipulation, or Asian bodywork. The terms "massage," "therapeutic massage," "massage technology," "myotherapy," "body massage," and "body rub," or any derivation of those terms, are synonyms for "massage therapy."

(8-a) "Massage therapy educational program" means a program of instruction that provides at a minimum the course of instruction required for a massage therapist license.

SECTION 2. Section 455.004, Occupations Code, is amended to read as follows:

Sec. 455.004. APPLICABILITY OF CHAPTER. This chapter does not apply to:

(1) a person licensed in this state as a physician, chiropractor, occupational therapist, 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; or

(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 a massage therapist license.

SECTION 3. Section 455.052, Occupations Code, is 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 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 [or other massage services] 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.

SECTION 4. Section 455.053, Occupations Code, is amended to read as follows:

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 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 [or other massage services] 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 under this chapter;

[(8)] the educational and clinical records kept by a massage school;

(8) [(9)] the organizational structure of a massage school, including the lines of authority and the delegation of responsibility;

(9) [(10)] fire prevention and safety in a massage school;

(10) [(11)] the massage school's curriculum and educational material;

(11) [(12)] massage school inspections; and

(12) [(13)] any other aspect of the operation of a massage school that the executive commissioner considers necessary to protect students, massage school personnel, or the public.

SECTION 5. Section 455.055, Occupations Code, is amended to read as follows:

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 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 under this chapter;

[(5)] the equipment essential to the education, health, and safety of students and the public;

(5) [(6)] the sanitary and hygienic conditions of the physical environment in which a massage therapy instructor teaches;

(6) [(7)] the provision of massage therapy [or other massage services] by a student or a massage therapy instructor;

(7) [(8)] the educational and clinical records kept by a massage therapy instructor;

(8) [(9)] the curriculum taught and educational material used by a massage therapy instructor;

(9) [(10)] the inspection of the records, equipment, and physical environment of a massage therapy instructor; and

(10) [(11)] any other aspect of a massage therapy instructor's instruction or operation of any portion of the course of instruction required for a massage therapist license.

SECTION 6. Section 455.057, Occupations Code, is amended to read as follows:

Sec. 455.057. CONTINUING EDUCATION. The executive commissioner shall license [recognize], prepare, or administer continuing education programs for persons licensed under this chapter. A licensed person must participate in the programs to the extent required by the executive commissioner to keep the person's license.

SECTION 7. Section 455.104, Occupations Code, is amended to read as follows:

Sec. 455.104. INSPECTIONS; INVESTIGATIONS. (a) The department or its authorized representative may enter the premises of an applicant for a license, [or] a license holder, or a place of business that advertises or offers massage therapy at:

(1) reasonable times to conduct an inspection incidental to the issuance of a license; and

(2) other times that the department considers necessary to ensure compliance with this chapter and the rules adopted under this chapter.

(b) A peace officer appointed or employed by a law enforcement agency of a political subdivision of this state may enter the premises of a place of business that advertises or offers massage therapy [massage establishment] to ensure compliance with this chapter [and rules adopted under this chapter].

SECTION 8. Section 455.105(a), Occupations Code, is amended to read as follows:

(a) The department shall annually prepare a registry of licensed massage therapists, licensed massage therapy instructors, licensed massage schools, licensed continuing education providers, and licensed massage establishments.

SECTION 9. Section 455.151, Occupations Code, is amended to read as follows:

Sec. 455.151. LICENSE REQUIRED. (a) Unless the person is exempt from the licensing requirement, a person may not act as a massage therapist, massage school, massage therapy instructor, continuing education provider, or massage establishment unless the person holds an appropriate license issued under this chapter.

(b) Unless the person is exempt from the licensing requirement, a person may not represent that the person is a massage therapist, massage school, massage therapy instructor, continuing education provider, or massage establishment unless the person holds an appropriate [a] license under this chapter.

SECTION 10. Section 455.152, Occupations Code, is amended to read as follows:

Sec. 455.152. INELIGIBILITY FOR LICENSE. (a) A person is not eligible for a license as a massage establishment, massage school, massage therapist, continuing education provider, 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 as a massage establishment, massage school, massage therapist, continuing education provider, or massage therapy instructor [until the fifth anniversary of the date of the conviction].

SECTION 11. Section 455.156(b), Occupations Code, is amended to read as follows:

(b) An applicant for a license under this section must be an individual and:

(1) present evidence satisfactory to the department that the person[:

[(A)] has satisfactorily completed massage therapy studies in a 500-hour minimum [300-hour], supervised course of instruction provided by a massage therapy instructor, a licensed massage school, a state-approved educational institution, or any combination of instructors or schools, in which at least:

(A) 200 [(i)125] hours are taught by a licensed massage therapy instructor and dedicated to the study of massage therapy techniques, theory, and practice and the manipulation of soft tissue, with at least 125 of those hours dedicated to the study of Swedish massage therapy techniques [and taught by a massage therapy instructor];

(B) [(ii)] 50 hours are dedicated to the study of anatomy;

(C) [(iii)] 25 hours are dedicated to the study of physiology;

(D) 50 hours are dedicated to the study of kinesiology;

(E) 40 hours are dedicated to the study of pathology;

(F) 20 [(iv)15] hours are dedicated to the study of hydrotherapy;

(G) 45 [(v)15] hours are dedicated to the study of business practices, massage therapy law, and professional ethics standards;

(H) [(vi)] 20 hours are dedicated to the study of health and hygiene, universal precautions, first aid, and cardiopulmonary resuscitation; and

(I) [(vii)] 50 hours are spent in an internship program; [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;]

(2) pass the [practical and written portions of the] state examination; and

(3) be at least 18 years of age.

SECTION 12. Section 455.158, Occupations Code, is amended to read as follows:

Sec. 455.158. STUDENT EXEMPTION FROM LICENSING REQUIREMENTS. A student who provides massage therapy as part of an internship program or without compensation is exempt from licensing under this chapter if the student is enrolled in a massage therapy educational program [state-approved course of instruction] that consists of at least 500 [300] hours.

SECTION 13. Section 455.159, Occupations Code, is amended by amending Subsections (a) and (b) and adding Subsection (e) to read as follows:

(a) An internship program must:

(1) meet the qualifications established by the department;

(2) provide a student with a minimum of 50 [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 200 [the first 250] hours of required classroom training, including 100 hours of massage therapy technique course work, at a massage school or with a massage therapy instructor before the student is eligible to enter an internship program.

(e) A massage therapy educational program may not require a student to complete a number of internship hours that is greater than a number equal to 80 percent of the classroom hours in the massage therapy educational program.

SECTION 14. Sections 455.202(a) and (b), Occupations Code, are amended to read as follows:

(a) A massage establishment may employ only licensed massage therapists to perform massage therapy [or other massage services].

(b) A massage establishment may not:

(1) employ an individual who is not a United States citizen or a legal permanent resident with a valid work permit; or

(2) [employ a minor unless the minor's parent or legal guardian authorizes in writing the minor's employment by the establishment;

[(3) allow a nude or partially nude employee to provide massage therapy or other massage services to a customer;

[(4)] allow any individual, including a client, student, license holder, or employee, to engage in sexual misconduct, as defined by Section 455.207, [contact] in the massage establishment[; or

[(5) allow any individual, including a student, license holder, or employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual].

SECTION 15. Sections 455.205(c), (d), and (e), Occupations Code, are amended to read as follows:

(c) A person who is not licensed under this chapter may not use the word "massage" or advertise or offer "massage therapy" or any synonym for massage therapy on any form of advertising unless the person is expressly exempt from the licensing requirements of this chapter.

(d) A sexually oriented business may not advertise or offer "massage therapy" or any synonym for massage therapy or use the word "spa" ["massage"] or "bath" on a sign or any form of advertising.

(e) A person advertising massage therapy or any synonym for massage therapy [other massage services] is presumed to be engaging in conduct regulated by this chapter.

SECTION 16. Subchapter E, Chapter 455, Occupations Code, is amended by adding Section 455.207 to read as follows:

Sec. 455.207. SEXUAL MISCONDUCT. (a) A person licensed under this chapter may not engage in sexual misconduct with a client.

(b) In this section, "sexual misconduct" means:

(1) providing massage therapy while:

(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) any touching of any part of the genitalia or anus;

(3) any touching of the breasts of a female without the written consent of the female;

(4) any offer or agreement to engage in any activity described by Subdivision (1), (2), or (3);

(5) kissing without the consent of both persons;

(6) deviate sexual intercourse, sexual contact, sexual intercourse, indecent exposure, sexual assault, prostitution, and promotion of prostitution as described in Chapters 21, 22, and 43, Penal Code, or any offer or agreement to engage in such activities;

(7) any behavior, gesture, or expression that may reasonably be interpreted as inappropriately seductive or sexual; or

(8) inappropriate sexual comments about or to a client, including sexual comments about a person's body.

SECTION 17. Section 455.351(a), Occupations Code, is amended to read as follows:

(a) The attorney general, a district or county attorney, a municipal attorney, or the department may institute an action for injunctive relief to restrain a violation by a person who:

(1) appears to be in violation of or threatening to violate this chapter or a rule adopted under this chapter; or

(2) is operating an establishment that offers massage therapy [or other massage services] regulated by this chapter and is not licensed under this chapter.

SECTION 18. Section 455.352, Occupations Code, is amended by adding Subsections (a-2) and (f) and amending Subsections (b) and (c) to read as follows:

(a-2) A person commits an offense if the person knowingly violates Section 455.205(d). An offense under this subsection is a Class B misdemeanor, unless the actor has previously been convicted one time of an offense under this subsection, in which event it is a Class A misdemeanor. If the actor has previously been convicted two or more times of an offense under this subsection, the offense is a state jail felony.

(b) An owner or operator of a massage establishment commits an offense if the person knowingly violates Section 455.151(a), 455.155(d), 455.202 [455.202(a)], 455.204(b) or (c), [or] 455.205(d), or 455.207. An offense under this subsection is a Class A [B] misdemeanor, unless the actor has previously been convicted one or more [two] times of an offense under this subsection, in which event it is a [Class A misdemeanor. If the actor has previously been convicted three or more times of an offense under this subsection, the offense is a] state jail felony.

(c) An owner or operator of a massage school commits an offense if the person knowingly violates Section 455.151(a), 455.204(c) [455.159, 455.203(a) or (c), 455.204(b) or (c)], [or] 455.205(b), (c), or (d), or 455.207.

(f) A licensed massage therapist commits an offense if the person knowingly violates Section 455.202, 455.204, 455.205(a), or 455.207. An offense under this subsection is a Class A misdemeanor, unless the actor has previously been convicted one or more times of an offense under this subsection, in which event it is a state jail felony.

SECTION 19. Sections 455.001(11), 455.202(d), and 455.205(b), Occupations Code, are repealed.

SECTION 20. 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 rules necessary to implement the changes in law made by this Act.

SECTION 21. (a) Except as provided by Subsection (b) of this section, the changes in law made by this Act to Section 455.156, Occupations Code, apply only to a license applicant who enrolls in a massage therapist training program for the first time on or after the effective date of this Act. An applicant who enrolled in a massage therapist training program for the first time before that date is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(b) The change in law made by this Act by the deletion of former Section 455.156(b)(1)(B), Occupations Code, applies only to an application for a license filed on or after the effective date of this Act. A license application filed before that date is governed by the law in effect at the time the application is filed, and the former law is continued in effect for that purpose.

SECTION 22. (a) The changes in law made by this Act to Section 455.352, Occupations Code, apply only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

(b) An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 23. This Act takes effect September 1, 2007.