80R1602 MSE-F
	By: Truitt	H.B. No. 174

	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 to remove 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)  "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, content, and 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)  Not later than the 14th day 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)
	Not later than the 10th day 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)  Not later than the 30th day 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, not later than the fifth day 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, 2008, 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, 2008, 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, 2007, 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, 2008
	.