H.B. No. 449
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. Chapter 401, Health and Safety Code, is amended
by adding Subchapter M to read as follows:
SUBCHAPTER M. LASER HAIR REMOVAL
Sec. 401.501. DEFINITIONS. In this subchapter:
(1) "Department" means the Department of State Health
Services.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(3) "Laser hair removal" means the use of a laser or
pulsed light device for nonablative hair removal procedures.
(4) "Laser hair removal facility" means a business
location that provides laser hair removal.
(5) "Laser or pulsed light device" means a device
approved by the department and the United States Food and Drug
Administration for laser hair removal.
(6) "Nonablative hair removal procedure" means a hair
removal procedure using a laser or pulsed light device that does not
remove the epidermis.
(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. 401.502. EXAMINATION. The executive commissioner may
adopt rules to govern the development and administration of an
examination for an applicant under this subchapter.
Sec. 401.503. APPLICATION PROCESS. (a) An application for
a certificate or license under this subchapter must be made on a
form prescribed 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.
Sec. 401.504. CERTIFICATE FOR INDIVIDUALS 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) A certificate issued under this subchapter only
authorizes a person to perform nonablative cosmetic laser hair
removal. The certificate does not authorize the person to
diagnose, treat, or offer to treat any client for any illness,
disease, injury, defect, or deformity of the human body. The
certificate holder shall specifically disclose this limitation in
writing to all clients and prospective clients.
(c) This subchapter does not require a health professional
licensed under another law to hold a certificate under this
subchapter 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.
(d) This subchapter does not apply to a physician or to a
physician's employee or delegate acting under Chapter 157,
Occupations Code.
Sec. 401.505. CERTIFIED LASER HAIR REMOVAL PROFESSIONAL.
(a) 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;
(2) meet the requirements for a senior laser hair
removal technician certificate under Section 401.506; and
(3) pass an examination administered by the
department.
(b) A certified laser hair removal professional acting
under the protocol established with a consulting physician may
perform laser hair removal without supervision.
Sec. 401.506. SENIOR LASER HAIR REMOVAL TECHNICIAN. (a)
Except as provided by Subsection (b), an applicant for a senior
laser hair removal technician certificate must:
(1) meet the requirements for a laser hair removal
technician certificate under Section 401.507; and
(2) have supervised at least 100 laser hair removal
procedures, as audited by a certified laser hair removal
professional.
(b) The qualifications for eligibility for an applicant for
a senior laser hair removal technician certificate who is a
licensed health professional shall be established by the entity
that issues licenses for that health profession.
Sec. 401.507. LASER HAIR REMOVAL TECHNICIAN. An applicant
for a laser hair removal technician certificate must:
(1) meet the requirements for a laser hair removal
apprentice-in-training certificate under Section 401.508; and
(2) have performed at least 100 laser hair removal
procedures under the direct supervision of a senior laser hair
removal technician or a certified laser hair removal professional.
Sec. 401.508. LASER HAIR REMOVAL APPRENTICE-IN-TRAINING.
(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, burns,
eye protection, emergencies, and posttreatment protocols.
(b) A laser hair removal apprentice-in-training must work
directly under the supervision of a senior laser hair removal
technician or a certified laser hair removal professional.
(c) A person must be at least 18 years of age to qualify to
be a laser hair removal apprentice-in-training.
Sec. 401.509. 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.
Sec. 401.510. FACILITY 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.
(c) This section does not apply to:
(1) a facility owned or operated by a physician for the
practice of medicine;
(2) a licensed hospital; or
(3) a clinic owned or operated by a licensed hospital.
Sec. 401.511. 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. 401.512. 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 department, accompanied by a renewal fee in an amount equal
to the original certificate or license fee.
Sec. 401.513. DISPLAY OF LICENSE OR CERTIFICATE. A person
holding a license or certificate under this subchapter shall
display the person's license or certificate in an open public area
of the laser hair removal facility.
Sec. 401.514. 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) A person who adulterates or misbrands a laser or pulsed
light device violates Chapter 431. The department may investigate
a person accused of adulterating or misbranding a laser or pulsed
light device.
(c) A person may only use a laser or pulsed light device
approved for laser hair removal by the federal Food and Drug
Administration for that purpose and may only use the device at the
settings expected to safely remove hair.
Sec. 401.515. 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. 401.516. WARNING SIGNS. (a) A laser hair removal
facility shall post a warning sign as prescribed by the department
in a conspicuous location readily visible to a person entering the
facility. The sign must provide a toll-free telephone number for
the department and inform the customer that the customer may call
the department.
(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. 401.517. OPERATIONAL REQUIREMENTS. (a) Except as
provided by Subsection (b), a laser hair removal facility shall
have a certified laser hair removal professional or a licensed
health professional described by Section 401.504(c) present to
supervise the laser hair removal procedures performed at the
facility during the facility's operating hours.
(b) A laser hair removal facility may continue to perform
laser hair removal procedures after the facility's certified laser
hair removal professional leaves the facility if a senior laser
hair removal technician is present to perform or supervise each
procedure. Not later than the 45th day after the date the
facility's certified laser hair removal professional leaves the
facility:
(1) the facility's senior laser hair removal
technician must become certified as a laser hair removal
professional under Section 401.505; or
(2) the facility must hire a new certified laser hair
removal professional.
Sec. 401.518. SAFETY. (a) A laser hair removal facility
operator is responsible for maintaining the laser hair removal
facility's compliance with the requirements of this subchapter 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 or provides any medical
benefit.
(c) A laser hair removal facility operator may not produce
false or misleading advertising regarding the services offered at
the facility.
Sec. 401.519. CONSULTING PHYSICIAN. (a) A laser hair
removal facility must have a written contract with a consulting
physician to:
(1) establish proper protocols for the services
provided at the facility; and
(2) audit the laser hair removal facility's protocols
and operations.
(b) Under the rules of the department, a laser hair removal
facility must document with the department the facility's
contractual relationship with the consulting physician.
(c) The consulting physician must be available for
emergency consultation with the facility as appropriate to the
circumstances, including, if the physician considers it necessary,
an emergency appointment with the client. If the consulting
physician is unavailable for an emergency consultation, another
designated physician must be available for the consultation with
the facility relating to care for the client.
(d) This subchapter does not relieve a consulting physician
or another health care professional from complying with applicable
regulations prescribed by a state or federal agency.
Sec. 401.520. 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 the
department.
(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, the Texas Medical Board, a health
authority, or an authorized agent requests the record;
(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.
Sec. 401.521. PROHIBITED PRACTICE. (a) A person may not
operate a laser or pulsed light device with the intent to treat an
illness, disease, injury, or physical defect or deformity unless
the person is:
(1) a physician;
(2) acting under a physician's order; or
(3) authorized under other law to treat the illness,
disease, injury, or physical defect or deformity in that manner.
(b) A person who violates Subsection (a) is practicing
medicine in violation of Subtitle B, Title 3, Occupations Code, and
is subject to the penalties under that subtitle and under Section
401.522.
Sec. 401.522. ENFORCEMENT; PENALTIES. (a) The department
may impose an administrative penalty on a person who violates this
subchapter or a rule adopted under this subchapter. The amount of
the penalty may not exceed $5,000 for each violation.
(b) The department may suspend or revoke a license or
certificate issued under this subchapter in addition to or instead
of imposing a penalty under Subsection (a).
(c) The executive commissioner shall adopt rules as
necessary to implement this section.
SECTION 2. Section 483.041(c), Health and Safety Code, is
amended to read as follows:
(c) Subsection (a) does not apply to the possession of a
dangerous drug in the usual course of business or practice or in the
performance of official duties by the following persons or an agent
or employee of the person:
(1) a pharmacy licensed by the board;
(2) a practitioner;
(3) a person who obtains a dangerous drug for lawful
research, teaching, or testing, but not for resale;
(4) a hospital that obtains a dangerous drug for
lawful administration by a practitioner;
(5) an officer or employee of the federal, state, or
local government;
(6) a manufacturer or wholesaler licensed by the
Department of State Health Services under Chapter 431 (Texas Food,
Drug, and Cosmetic Act);
(7) a carrier or warehouseman;
(8) a home and community support services agency
licensed under and acting in accordance with Chapter 142;
(9) a licensed midwife who obtains oxygen for
administration to a mother or newborn or who obtains a dangerous
drug for the administration of prophylaxis to a newborn for the
prevention of ophthalmia neonatorum in accordance with Section
203.353, Occupations Code; [or]
(10) a salvage broker or salvage operator licensed
under Chapter 432; or
(11) a certified laser hair removal professional under
Subchapter M, Chapter 401, who possesses and uses a laser or pulsed
light device approved by and registered with the department and in
compliance with department rules for the sole purpose of cosmetic
nonablative hair removal.
SECTION 3. (a) Not later than September 1, 2010, a laser
hair removal facility in operation on the effective date of this Act
must obtain licenses and certificates required by Subchapter M,
Chapter 401, Health and Safety Code, as added by this Act.
(b) Not later than March 1, 2010, the executive commissioner
of the Health and Human Services Commission shall adopt rules as
required by Subchapter M, Chapter 401, Health and Safety Code, as
added by this Act.
SECTION 4. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2009.
(b) Sections 401.504, 401.510, 401.517, 401.521, and
401.522, Health and Safety Code, as added by this Act, and Section
483.041(c), Health and Safety Code, as amended by this Act, take
effect September 1, 2010.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 449 was passed by the House on April
24, 2009, by the following vote: Yeas 138, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 449 on May 23, 2009, by the following vote: Yeas 145, Nays 0, 1
present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 449 was passed by the Senate, with
amendments, on May 21, 2009, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor