82R4752 JAM-D
By: Howard of Travis H.B. No. 1996
A BILL TO BE ENTITLED
AN ACT
relating to the licensure of a person practicing muscle activation
techniques; providing administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle H, Title 3, Occupations Code, is
amended by adding Chapter 456 to read as follows:
CHAPTER 456. MUSCLE ACTIVATION TECHNIQUES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 456.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of State Health
Services.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(3) "Muscle activation techniques" means the
identification and correction of muscular imbalances through
palpation and isometric exercises.
Sec. 456.002. APPLICABILITY OF CHAPTER. This chapter does
not apply to a person licensed in this state as a physician,
chiropractor, occupational therapist, physical therapist, massage
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.
[Sections 456.003-456.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES OF EXECUTIVE COMMISSIONER AND
DEPARTMENT
Sec. 456.051. ADOPTION OF RULES. The executive commissioner
shall adopt rules necessary to implement this chapter.
Sec. 456.052. GENERAL DUTIES OF DEPARTMENT. The department
shall:
(1) administer this chapter; and
(2) investigate a person who may be engaging in a
practice that violates this chapter.
[Sections 456.053-456.100 reserved for expansion]
SUBCHAPTER C. LICENSING
Sec. 456.101. LICENSE REQUIRED. (a) Except as provided by
Section 456.002, a person may not employ muscle activation
techniques unless the person holds a license issued under this
chapter.
(b) A person may not represent that the person is certified,
licensed, or trained in the use of muscle activation techniques
unless the person holds a license under this chapter.
Sec. 456.102. APPLICATION FOR LICENSE. An applicant for a
license under this chapter must:
(1) submit an application on a form provided by the
department; and
(2) include with the application the application fee
set by the executive commissioner.
Sec. 456.103. LICENSE REQUIREMENTS. (a) The department
shall issue a license to each qualified applicant who applies for a
license under this chapter.
(b) An applicant for a license under this section must be an
individual and:
(1) present evidence satisfactory to the department
that the person has satisfactorily completed muscle activation
techniques studies and passed the final examination in a 176-hour
minimum, supervised course of instruction provided by an entity
approved by the department; and
(2) be at least 18 years of age.
Sec. 456.104. LICENSE EXPIRATION AND RENEWAL. (a) A
license issued under this chapter expires on the second anniversary
of the date of issuance. A license holder may renew the person's
license by submitting an application for renewal accompanied by the
renewal fee prescribed by the executive commissioner or by the late
fee prescribed by this section.
(b) The department shall adopt a system under which licenses
expire on various dates during the year. Fees must be prorated so
that a licensed person pays only for that part of the renewal period
for which the license is issued until the expiration date of the
license.
(c) A person who is otherwise eligible to renew a license
may renew an unexpired license by paying the required renewal fee to
the department before the expiration date of the license. A person
whose license has expired may not engage in activities that require
a license until the license has been renewed.
(d) A person whose license has been expired for 90 days or
less may renew the license by paying to the department a renewal fee
that is equal to 1-1/2 times the normally required renewal fee.
(e) A person whose license has been expired for more than 90
days but less than one year may renew the license by paying to the
department a renewal fee that is equal to two times the normally
required renewal fee.
(f) A person whose license has been expired for one year or
more may not renew the license. The person may obtain a license by
complying with the requirements and procedures for obtaining a new
license.
(g) Not later than the 30th day before the date a person's
license is scheduled to expire, the department shall send written
notice of the impending expiration to the person at the person's
last known address according to the records of the department.
[Sections 456.105-456.150 reserved for expansion]
SUBCHAPTER D. LICENSE DENIAL OR DISCIPLINARY PROCEDURES
Sec. 456.151. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY
ACTION. The department may refuse to issue a license to a person and
shall suspend, revoke, or refuse to renew the license of a person or
shall reprimand a person licensed under this chapter if the person:
(1) obtains a license by fraud, misrepresentation, or
concealment of material facts;
(2) sells, barters, or offers to sell or barter a
license;
(3) violates a rule adopted by the executive
commissioner;
(4) engages in unprofessional conduct as defined by
executive commissioner rule that endangers or is likely to endanger
the health, welfare, or safety of the public; or
(5) violates this chapter.
Sec. 456.152. HEARING ON DENIAL OR DISCIPLINARY ACTION. (a)
A person whose application for a license is denied, whose license is
suspended or revoked, or who has been reprimanded is entitled to a
hearing before the State Office of Administrative Hearings if the
person submits a written request to the department.
(b) A hearing under this subchapter is a contested case
under Chapter 2001, Government Code.
Sec. 456.153. PROBATION. The department may place on
probation a person whose license is suspended. If a license
suspension is probated, the department may require the person to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
department; or
(3) continue or review professional education until
the person attains a degree of skill satisfactory to the department
in those areas that are the basis of the probation.
Sec. 456.154. EMERGENCY SUSPENSION. (a) The department
shall temporarily suspend the license of a license holder if the
department determines from the evidence or information presented to
it that continued practice by the license holder would constitute a
continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
[Sections 456.155-456.200 reserved for expansion]
SUBCHAPTER E. ADMINISTRATIVE PENALTY
Sec. 456.201. IMPOSITION OF PENALTY. The department may
impose an administrative penalty against a person who violates this
chapter or a rule adopted under this chapter.
Sec. 456.202. AMOUNT OF PENALTY. (a) The amount of the
administrative penalty may not exceed $1,000 for each violation.
Each day of a continuing violation is a separate violation.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require.
Sec. 456.203. NOTICE OF VIOLATION AND PENALTY. (a) If,
after investigating a possible violation and the facts surrounding
that possible violation, the department determines that a violation
occurred, the department shall give written notice of the violation
to the person alleged to have committed the violation.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed 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. 456.204. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Not later than the 30th day after the date the person receives the
notice, the person may:
(1) accept the department's determination, including
the proposed administrative penalty; or
(2) make a written request for a hearing on that
determination.
(b) If the person accepts the department's determination,
the department by order shall approve the determination and impose
the proposed penalty.
Sec. 456.205. HEARING. (a) If the person timely requests a
hearing, the department shall:
(1) set a hearing; and
(2) give written notice of the hearing to the person.
(b) A hearing under this subchapter shall be conducted by
the State Office of Administrative Hearings.
(c) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the department a
proposal for decision regarding the occurrence of the violation and
the amount of any proposed administrative penalty.
Sec. 456.206. DECISION BY DEPARTMENT. (a) Based on the
findings of fact and conclusions of law and the recommendations of
the administrative law judge, the department by order may determine
that:
(1) a violation has occurred and may impose an
administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the
person. The notice must include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) the amount of any penalty imposed; and
(3) a statement of the right of the person to judicial
review of the order.
Sec. 456.207. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date on which the order
becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both; or
(3) without paying the penalty, 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 following the date on which the
order becomes final, a person who acts under Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the 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
department by certified mail.
(c) If the department receives a copy of an affidavit as
provided by Subsection (b)(2), the department may file with the
court a contest to the affidavit not later than the fifth day after
the date the copy is received.
(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. 456.208. COLLECTION OF PENALTY. If the person does not
pay the administrative penalty and the enforcement of the penalty
is not stayed, the department may refer the matter to the attorney
general for collection.
Sec. 456.209. 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.
(b) If the court does not sustain the determination that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 456.210. REMITTANCE OF PENALTY AND INTEREST. (a) If,
after judicial review, the administrative penalty is reduced or not
imposed by the court, the court shall, after the judgment becomes
final:
(1) order the appropriate amount, plus accrued
interest, be remitted to the person by the department if the person
paid the penalty under Section 456.207(a)(2); or
(2) if the person paid the penalty under Section
456.207(b)(1)(A) or posted a supersedeas bond, order the department
to:
(A) execute a complete release of the escrow
account or bond, as appropriate, if the penalty is not imposed; or
(B) release the escrow account or bond, as
appropriate, after the reduced penalty has been paid from the
account or by the person.
(b) The interest paid under Subsection (a)(1) is accrued at
the rate charged on loans to depository institutions by the New York
Federal Reserve Bank. 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.
Sec. 456.211. EXPENSES AND COSTS. (a) In this section,
"reasonable expenses and costs" includes expenses incurred by the
department and the attorney general in the investigation,
initiation, or prosecution of an action, including reasonable
investigative costs, court costs, attorney's fees, witness fees,
and deposition expenses.
(b) The department may assess reasonable expenses and costs
against a person in an administrative hearing if, as a result of the
hearing, an administrative penalty is assessed against the person.
The person shall pay expenses and costs assessed under this
subsection not later than the 30th day after the date the order of
the department requiring the payment of expenses and costs is
final. The department may refer the matter to the attorney general
for collection of the expenses and costs.
(c) If the attorney general brings an action against a
person to enforce an administrative penalty assessed under this
subchapter and the person is found liable for an administrative
penalty, the attorney general may recover, on behalf of the
attorney general and the department, reasonable expenses and costs.
Sec. 456.212. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is subject to Chapter 2001, Government Code.
SECTION 2. Not later than January 1, 2012, the executive
commissioner of the Health and Human Services Commission shall
adopt all rules, fees, and forms as required by Chapter 456,
Occupations Code, as added by this Act.
SECTION 3. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2011.
(b) Section 456.101 and Subchapter E, Chapter 456,
Occupations Code, as added by this Act, take effect March 1, 2012.