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Texas House Bill HB449

Texas 2009 - 81st Regular

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11 H.B. No. 449
22
33
44 AN ACT
55 relating to the regulation of laser hair removal facilities;
66 providing penalties.
77 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
88 SECTION 1. Chapter 401, Health and Safety Code, is amended
99 by adding Subchapter M to read as follows:
1010 SUBCHAPTER M. LASER HAIR REMOVAL
1111 Sec. 401.501. DEFINITIONS. In this subchapter:
1212 (1) "Department" means the Department of State Health
1313 Services.
1414 (2) "Executive commissioner" means the executive
1515 commissioner of the Health and Human Services Commission.
1616 (3) "Laser hair removal" means the use of a laser or
1717 pulsed light device for nonablative hair removal procedures.
1818 (4) "Laser hair removal facility" means a business
1919 location that provides laser hair removal.
2020 (5) "Laser or pulsed light device" means a device
2121 approved by the department and the United States Food and Drug
2222 Administration for laser hair removal.
2323 (6) "Nonablative hair removal procedure" means a hair
2424 removal procedure using a laser or pulsed light device that does not
2525 remove the epidermis.
2626 (7) "Operator" means the owner of a laser hair removal
2727 facility, an agent of an owner, or an independent contractor of a
2828 laser hair removal facility.
2929 Sec. 401.502. EXAMINATION. The executive commissioner may
3030 adopt rules to govern the development and administration of an
3131 examination for an applicant under this subchapter.
3232 Sec. 401.503. APPLICATION PROCESS. (a) An application for
3333 a certificate or license under this subchapter must be made on a
3434 form prescribed and provided by the department.
3535 (b) The application must require an applicant to provide
3636 sworn statements relating to the applicant's education and to
3737 provide other information required by the department.
3838 Sec. 401.504. CERTIFICATE FOR INDIVIDUALS REQUIRED. (a) A
3939 person may not perform or attempt to perform laser hair removal
4040 unless the person holds the appropriate certificate under this
4141 subchapter.
4242 (b) A certificate issued under this subchapter only
4343 authorizes a person to perform nonablative cosmetic laser hair
4444 removal. The certificate does not authorize the person to
4545 diagnose, treat, or offer to treat any client for any illness,
4646 disease, injury, defect, or deformity of the human body. The
4747 certificate holder shall specifically disclose this limitation in
4848 writing to all clients and prospective clients.
4949 (c) This subchapter does not require a health professional
5050 licensed under another law to hold a certificate under this
5151 subchapter to perform laser hair removal if the performance of
5252 laser hair removal is within the scope of that professional's
5353 practice as determined by the professional's licensing board.
5454 (d) This subchapter does not apply to a physician or to a
5555 physician's employee or delegate acting under Chapter 157,
5656 Occupations Code.
5757 Sec. 401.505. CERTIFIED LASER HAIR REMOVAL PROFESSIONAL.
5858 (a) An applicant for a laser hair removal professional certificate
5959 must:
6060 (1) be certified by a recognized certifying agency,
6161 including the Society for Clinical and Medical Hair Removal or
6262 another certification entity approved by the department;
6363 (2) meet the requirements for a senior laser hair
6464 removal technician certificate under Section 401.506; and
6565 (3) pass an examination administered by the
6666 department.
6767 (b) A certified laser hair removal professional acting
6868 under the protocol established with a consulting physician may
6969 perform laser hair removal without supervision.
7070 Sec. 401.506. SENIOR LASER HAIR REMOVAL TECHNICIAN. (a)
7171 Except as provided by Subsection (b), an applicant for a senior
7272 laser hair removal technician certificate must:
7373 (1) meet the requirements for a laser hair removal
7474 technician certificate under Section 401.507; and
7575 (2) have supervised at least 100 laser hair removal
7676 procedures, as audited by a certified laser hair removal
7777 professional.
7878 (b) The qualifications for eligibility for an applicant for
7979 a senior laser hair removal technician certificate who is a
8080 licensed health professional shall be established by the entity
8181 that issues licenses for that health profession.
8282 Sec. 401.507. LASER HAIR REMOVAL TECHNICIAN. An applicant
8383 for a laser hair removal technician certificate must:
8484 (1) meet the requirements for a laser hair removal
8585 apprentice-in-training certificate under Section 401.508; and
8686 (2) have performed at least 100 laser hair removal
8787 procedures under the direct supervision of a senior laser hair
8888 removal technician or a certified laser hair removal professional.
8989 Sec. 401.508. LASER HAIR REMOVAL APPRENTICE-IN-TRAINING.
9090 (a) An applicant for a laser hair removal apprentice-in-training
9191 certificate must have at least 24 hours of training in safety, laser
9292 physics, skin typing, skin reactions, treatment protocols, burns,
9393 eye protection, emergencies, and posttreatment protocols.
9494 (b) A laser hair removal apprentice-in-training must work
9595 directly under the supervision of a senior laser hair removal
9696 technician or a certified laser hair removal professional.
9797 (c) A person must be at least 18 years of age to qualify to
9898 be a laser hair removal apprentice-in-training.
9999 Sec. 401.509. CONTINUING EDUCATION. The department shall
100100 recognize, prepare, or administer continuing education programs
101101 for certificate holders. A certificate holder must participate in
102102 the programs to the extent required by department rule to renew the
103103 person's certificate.
104104 Sec. 401.510. FACILITY LICENSE REQUIRED. (a) A person may
105105 not operate a laser hair removal facility unless the person holds a
106106 license issued under this subchapter to operate the facility.
107107 (b) A separate license is required for each laser hair
108108 removal facility.
109109 (c) This section does not apply to:
110110 (1) a facility owned or operated by a physician for the
111111 practice of medicine;
112112 (2) a licensed hospital; or
113113 (3) a clinic owned or operated by a licensed hospital.
114114 Sec. 401.511. EXPIRATION OF CERTIFICATE OR LICENSE. The
115115 executive commissioner by rule may adopt a system under which
116116 certificates and licenses expire on various dates during the year.
117117 Sec. 401.512. RENEWAL OF CERTIFICATE OR LICENSE. (a) A
118118 certificate or license expires on the second anniversary of the
119119 date of issuance.
120120 (b) A person must renew the person's certificate or license
121121 on or before the expiration date.
122122 (c) The department shall issue a renewal certificate or
123123 license on receipt of a renewal application in the form prescribed
124124 by the department, accompanied by a renewal fee in an amount equal
125125 to the original certificate or license fee.
126126 Sec. 401.513. DISPLAY OF LICENSE OR CERTIFICATE. A person
127127 holding a license or certificate under this subchapter shall
128128 display the person's license or certificate in an open public area
129129 of the laser hair removal facility.
130130 Sec. 401.514. LASER OR PULSED LIGHT DEVICE. (a) A laser or
131131 pulsed light device used for laser hair removal in a laser hair
132132 removal facility must comply with all applicable federal and state
133133 laws and regulations.
134134 (b) A person who adulterates or misbrands a laser or pulsed
135135 light device violates Chapter 431. The department may investigate
136136 a person accused of adulterating or misbranding a laser or pulsed
137137 light device.
138138 (c) A person may only use a laser or pulsed light device
139139 approved for laser hair removal by the federal Food and Drug
140140 Administration for that purpose and may only use the device at the
141141 settings expected to safely remove hair.
142142 Sec. 401.515. CUSTOMER NOTICE; LIABILITY. (a) A laser hair
143143 removal facility shall give each customer a written statement
144144 outlining the relevant risks associated with laser hair removal,
145145 including a warning that failure to use the eye protection provided
146146 to the customer by the laser hair removal facility may result in
147147 damage to the eyes.
148148 (b) The executive commissioner shall adopt rules relating
149149 to the customer notice.
150150 (c) Compliance with the notice requirement does not affect
151151 the liability of the laser hair removal facility operator or a
152152 manufacturer of a laser or pulsed light device.
153153 Sec. 401.516. WARNING SIGNS. (a) A laser hair removal
154154 facility shall post a warning sign as prescribed by the department
155155 in a conspicuous location readily visible to a person entering the
156156 facility. The sign must provide a toll-free telephone number for
157157 the department and inform the customer that the customer may call
158158 the department.
159159 (b) The executive commissioner shall adopt rules specifying
160160 the size, content, and design of the sign, with wording listing the
161161 potential dangers involved.
162162 (c) The department shall include with a license application
163163 and an application for renewal of a license a description of the
164164 design standards required for a sign under this section.
165165 Sec. 401.517. OPERATIONAL REQUIREMENTS. (a) Except as
166166 provided by Subsection (b), a laser hair removal facility shall
167167 have a certified laser hair removal professional or a licensed
168168 health professional described by Section 401.504(c) present to
169169 supervise the laser hair removal procedures performed at the
170170 facility during the facility's operating hours.
171171 (b) A laser hair removal facility may continue to perform
172172 laser hair removal procedures after the facility's certified laser
173173 hair removal professional leaves the facility if a senior laser
174174 hair removal technician is present to perform or supervise each
175175 procedure. Not later than the 45th day after the date the
176176 facility's certified laser hair removal professional leaves the
177177 facility:
178178 (1) the facility's senior laser hair removal
179179 technician must become certified as a laser hair removal
180180 professional under Section 401.505; or
181181 (2) the facility must hire a new certified laser hair
182182 removal professional.
183183 Sec. 401.518. SAFETY. (a) A laser hair removal facility
184184 operator is responsible for maintaining the laser hair removal
185185 facility's compliance with the requirements of this subchapter and
186186 department rules relating to laser and pulsed light devices.
187187 (b) A laser hair removal facility operator may not claim,
188188 advertise, or distribute promotional materials that claim that
189189 laser hair removal is free from risk or provides any medical
190190 benefit.
191191 (c) A laser hair removal facility operator may not produce
192192 false or misleading advertising regarding the services offered at
193193 the facility.
194194 Sec. 401.519. CONSULTING PHYSICIAN. (a) A laser hair
195195 removal facility must have a written contract with a consulting
196196 physician to:
197197 (1) establish proper protocols for the services
198198 provided at the facility; and
199199 (2) audit the laser hair removal facility's protocols
200200 and operations.
201201 (b) Under the rules of the department, a laser hair removal
202202 facility must document with the department the facility's
203203 contractual relationship with the consulting physician.
204204 (c) The consulting physician must be available for
205205 emergency consultation with the facility as appropriate to the
206206 circumstances, including, if the physician considers it necessary,
207207 an emergency appointment with the client. If the consulting
208208 physician is unavailable for an emergency consultation, another
209209 designated physician must be available for the consultation with
210210 the facility relating to care for the client.
211211 (d) This subchapter does not relieve a consulting physician
212212 or another health care professional from complying with applicable
213213 regulations prescribed by a state or federal agency.
214214 Sec. 401.520. DISCLOSURE OF RECORD PROHIBITED; EXCEPTION.
215215 (a) Except as provided by Subsection (b), an operator or other
216216 person may not disclose a customer record required to be kept by the
217217 department.
218218 (b) An operator or other person may disclose a customer
219219 record if:
220220 (1) the customer or a person authorized to act on
221221 behalf of the customer requests the record;
222222 (2) the department, the Texas Medical Board, a health
223223 authority, or an authorized agent requests the record;
224224 (3) the customer consents in writing to disclosure of
225225 the record to another person;
226226 (4) the customer is a victim, witness, or defendant in
227227 a criminal proceeding and the record is relevant to that
228228 proceeding;
229229 (5) the record is requested in a criminal or civil
230230 proceeding by court order or subpoena; or
231231 (6) disclosure is otherwise required by law.
232232 Sec. 401.521. PROHIBITED PRACTICE. (a) A person may not
233233 operate a laser or pulsed light device with the intent to treat an
234234 illness, disease, injury, or physical defect or deformity unless
235235 the person is:
236236 (1) a physician;
237237 (2) acting under a physician's order; or
238238 (3) authorized under other law to treat the illness,
239239 disease, injury, or physical defect or deformity in that manner.
240240 (b) A person who violates Subsection (a) is practicing
241241 medicine in violation of Subtitle B, Title 3, Occupations Code, and
242242 is subject to the penalties under that subtitle and under Section
243243 401.522.
244244 Sec. 401.522. ENFORCEMENT; PENALTIES. (a) The department
245245 may impose an administrative penalty on a person who violates this
246246 subchapter or a rule adopted under this subchapter. The amount of
247247 the penalty may not exceed $5,000 for each violation.
248248 (b) The department may suspend or revoke a license or
249249 certificate issued under this subchapter in addition to or instead
250250 of imposing a penalty under Subsection (a).
251251 (c) The executive commissioner shall adopt rules as
252252 necessary to implement this section.
253253 SECTION 2. Section 483.041(c), Health and Safety Code, is
254254 amended to read as follows:
255255 (c) Subsection (a) does not apply to the possession of a
256256 dangerous drug in the usual course of business or practice or in the
257257 performance of official duties by the following persons or an agent
258258 or employee of the person:
259259 (1) a pharmacy licensed by the board;
260260 (2) a practitioner;
261261 (3) a person who obtains a dangerous drug for lawful
262262 research, teaching, or testing, but not for resale;
263263 (4) a hospital that obtains a dangerous drug for
264264 lawful administration by a practitioner;
265265 (5) an officer or employee of the federal, state, or
266266 local government;
267267 (6) a manufacturer or wholesaler licensed by the
268268 Department of State Health Services under Chapter 431 (Texas Food,
269269 Drug, and Cosmetic Act);
270270 (7) a carrier or warehouseman;
271271 (8) a home and community support services agency
272272 licensed under and acting in accordance with Chapter 142;
273273 (9) a licensed midwife who obtains oxygen for
274274 administration to a mother or newborn or who obtains a dangerous
275275 drug for the administration of prophylaxis to a newborn for the
276276 prevention of ophthalmia neonatorum in accordance with Section
277277 203.353, Occupations Code; [or]
278278 (10) a salvage broker or salvage operator licensed
279279 under Chapter 432; or
280280 (11) a certified laser hair removal professional under
281281 Subchapter M, Chapter 401, who possesses and uses a laser or pulsed
282282 light device approved by and registered with the department and in
283283 compliance with department rules for the sole purpose of cosmetic
284284 nonablative hair removal.
285285 SECTION 3. (a) Not later than September 1, 2010, a laser
286286 hair removal facility in operation on the effective date of this Act
287287 must obtain licenses and certificates required by Subchapter M,
288288 Chapter 401, Health and Safety Code, as added by this Act.
289289 (b) Not later than March 1, 2010, the executive commissioner
290290 of the Health and Human Services Commission shall adopt rules as
291291 required by Subchapter M, Chapter 401, Health and Safety Code, as
292292 added by this Act.
293293 SECTION 4. (a) Except as provided by Subsection (b) of this
294294 section, this Act takes effect September 1, 2009.
295295 (b) Sections 401.504, 401.510, 401.517, 401.521, and
296296 401.522, Health and Safety Code, as added by this Act, and Section
297297 483.041(c), Health and Safety Code, as amended by this Act, take
298298 effect September 1, 2010.
299299 ______________________________ ______________________________
300300 President of the Senate Speaker of the House
301301 I certify that H.B. No. 449 was passed by the House on April
302302 24, 2009, by the following vote: Yeas 138, Nays 0, 1 present, not
303303 voting; and that the House concurred in Senate amendments to H.B.
304304 No. 449 on May 23, 2009, by the following vote: Yeas 145, Nays 0, 1
305305 present, not voting.
306306 ______________________________
307307 Chief Clerk of the House
308308 I certify that H.B. No. 449 was passed by the Senate, with
309309 amendments, on May 21, 2009, by the following vote: Yeas 31, Nays
310310 0.
311311 ______________________________
312312 Secretary of the Senate
313313 APPROVED: __________________
314314 Date
315315 __________________
316316 Governor