The Texas Department of Health (department) adopts the repeal of §§141.1 and 141.3-141.23 and new §§141.1-141.3, 141.5-141.7, 141.10-141.17, 141.20-141.47, 141.50-141.55, and 141.60-141.66 concerning the regulation and registration of massage therapists, massage therapy instructors, massage schools, and massage establishments. Sections 141.1-141.3, 141.5, 141.7, 141.11-141.12, 141.15, 141.21, 141.29, 141.32-141.34, 141.40, 141.42, 141.43, and 141.54 are adopted with changes to the proposed text as published in the September 22, 2000 issue of the Texas Register (25 TexReg 9377). The repeals and new §§141.6, 141.10, 141.13-141.14, 141.16-141.17, 141.20, 141.22-141.28, 141.30- 141.31, 141.35-141.39, 141.41, 141.44-141.47, 141.50-141.53, 141.55, and 141.60-141.66 are adopted without changes, and therefore the sections will not be republished.

The Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department reviewed Chapter 141 in its entirety and determined that all sections of the chapter should be repealed and new sections proposed. The review revealed that the sections needed reorganization and renumbering, had obsolete rules, had rules that did not reflect current board procedures, and had rules that did not reflect current legal and policy considerations.

Additionally, new rules are required by House Bill (HB) 2085 (relating to the continuation and functions of the Texas Department of Health, including the operation of certain boards and councils administratively attached to the department) and HB 3155 (relating to a nonsubstantive revision of provisions of the existing statutes applicable to the licensing and regulation of certain professions and business practices) passed by the 76th Legislature. The new rules have been edited and restructured to correct grammatical errors; eliminate subsection titles; update legal citations in accordance with HB 3155; delete repetitive, ambiguous, obsolete, unenforceable, and unnecessary language; and to include new provisions required by HB 2085. Each section has been edited in an effort to improve draftsmanship and make the rules more accessible, understandable, and usable.

New Subchapter A, §141.1 (relating to Definitions), numbers each definition, includes clarifying introductory language, and removes unnecessary definitions.

New Subchapter A, §141.2 (relating to Fees), establishes fees for the registration and renewal of massage therapists, massage therapy instructors, massage schools, massage establishments and providers of continuing education. Fees relating to time periods for late renewals are calculated based on the renewal fee and the length of time between registration expiration and late renewal, in accordance with HB 2085. Persons renewing within 90 days of the expiration date will pay a fee that is equal to one and one-half times the annual renewal fee. Persons renewing after 90 days but within one year of the expiration date will pay a fee that is two times the annual renewal fee. Previously, renewal fees for massage schools have been calculated based on the income generated by the school. Also, independent massage therapy instructors have paid less for the annual renewal. The renewal process, including an inspection of documents and physical locations, is the same for all registered massage schools and independent massage therapy instructors. Therefore, one fee is established which more accurately reflects the actual costs involved for the renewal process. HB 2085 requires the department to recognize, prepare, or administer continuing education programs for its registrants. A fee is established to cover costs associated with the annual approval of continuing education providers. The fees are necessary to cover the costs of operating the massage therapy registration program.

New Subchapter A, §141.3 (relating to Processing Applications), establishes procedural responsibilities relating to reimbursement and appeal.

New Subchapter B, §§141.5-141.7 (relating to Code of Ethics), identifies related categories of ethical conduct and includes language regarding initial consultations, billing practices, changes of name and address, and advertising practices by massage schools.

New Subchapter C, §§141.10 - 141.17, organizes and clarifies requirements pertaining to massage therapists including qualifications for registration, application procedures and documentation, temporary registration, examination, massage therapy certificates, and active military duty. Additionally, new language incorporates requirements for provisional registration and registration renewal.

New Subchapter D, §§141.20-141.25 (relating to Continuing Education Requirements), establishes continuing education approval and reporting requirements in accordance with HB 2085.

New Subchapter E, §§141.26-141.47 (relating to Massage Schools and Massage Therapy Instructors), reorganizes, renumbers and clarifies requirements pertaining to massage schools and instructors, including application procedures and documentation, personnel, massage therapy instructors, financial stability, change of ownership, locations, curriculum and internship for the basic course of instruction, admission requirements, enrollment procedures, tuition and fees, conduct policy, cancellation and refund policy, minimum progress standards, attendance standards, equipment and facility requirements, transcripts and records, student grievances, fire safety, sanitation and registration renewal.

New Subchapter F, §§141.50-141.55 (relating to Massage Establishments), reorganizes, renumbers and clarifies requirements pertaining to massage establishments including application procedures and registration, general requirements, sanitation, annual renewal, exemptions and change of ownership.

New Subchapter G, §§141.60-141.66 (relating to Violations, Complaints, and Disciplinary Actions), reorganizes, renumbers and clarifies requirements pertaining to the filing and investigation of complaints, grounds for registration denial or disciplinary action, formal hearings, suspension of registration for failure to pay child support, and registration of persons with criminal backgrounds. Additionally, new language adds reprimands and probated suspensions to the types of disciplinary actions the department may take against persons who violate the law, Texas Occupations Act, Chapter 455 (the Act), or the department's administrative rules, 25 TAC, Chapter 141 in accordance with HB 2085.

The department is making the following minor changes due to staff comments to clarify the intent and improve the accuracy of the section.

Change: Concerning the definition of "Act", language has been changed from "Texas Civil Statutes" to "Texas Revised Civil Statutes" to reflect the correct citation.

Change: Concerning the definition of "massage therapy", language in the first sentence has been reorganized to more correctly reflect the language in the Act. The modification does not alter the definition.

Change: Concerning §141.3(a)(4), language has been added to reflect the current procedures for processing applications. The department issues a letter of acceptance or a letter of deficiency within 30 working days of the receipt of an application for massage school, massage therapy instructor, or massage establishment registration.

Change: Concerning §141.11(d)(6), language has been deleted requiring applications to be notarized because the department plans to allow applicants to submit applications on-line in the future.

Change: Concerning §141.12(a), language has been added to cross-reference subsection (e) of that section.

Change: Concerning §141.15(f), the department has replaced the language "been lost in the mail" to "not been received by a registrant". The new language is a more accurate reflection of the situation under which a registrant may request a duplicate certificate or card at no charge.

Change: Concerning §141.21(a) and (b), language has been added to set out that acceptable continuing education will include advanced bodywork techniques acceptable to the department and that presenters of advanced bodywork techniques must be licensed, registered, or have education in the technique being presented. Addition of this language is necessary because of modifications made to the definition of "massage therapy" which deleted the list of advanced techniques from the definition.

Change: Concerning §141.32(g), "registration renewal card" was changed to "registration renewal certificate". Massage therapy educational programs will receive a new certificate each year. One of the sentences was deleted for further clarification.

Change: Concerning §141.33(b), a change was made to clarify that the course of instruction is the 300 hour supervised course of instruction required for massage therapy registration.

Change: Concerning §141.33(d), a change was made to clarify that the department will "approve" rather than "allow" a massage therapy educational program to begin operation at an additional location prior to inspection under specific circumstances.

Change: Concerning §141.40(b)(4), two changes have been made. The phrase "not more than 18 months in length" is removed to clarify that the requirement pertains to any massage therapy educational program. Language was added to clarify that the school is only required to calculate refunds based on the tuition made by the student.

Change: Concerning §141.40(f), language was modified to clarify that the department may pursue any disciplinary action authorized by the Act for violations of the rules.

Changes made to the proposed text resulted from comments received during the comment period. The details of the changes are described in the summary of comments that follow. Other minor editorial changes were made for clarification purposes.

The following comments were received concerning the proposed rules. Following each comment is the department's response and any resulting change(s).

Comment: Concerning the rules in general, one commenter expressed full support for the rules as proposed.

Response: The department agrees and no modifications were made as a result of this comment.

Comment: One commenter requested that the words "purpose" and "ethic" be defined in 141.1.

Response: The department responds that unless otherwise specified, all words have the meaning assigned in their normal usage. Any variance from normal usage would be specified and based on the appropriate source, such as Webster's Dictionary, Black's Legal Dictionary, or other recognized dictionaries. No change was made as a result of the comment.

Comment: Concerning the definition of "massage therapy", two commenters suggested creating two boards, one for Swedish massage and one for alternative techniques and modalities. Additionally, one commenter suggested the establishment of a board of complimentary and alternative therapies.

Response: The department responds that the creation of boards to regulate specific professions requires legislative enactment. No change was made as a result of the comment.

Comment: Concerning the definition of "massage therapy", 19 commenters stated opposition to the inclusion of reflexology in the definition of massage therapy; one commenter opposed the inclusion of shiatsu in the definition of massage therapy; three commenters opposed the inclusion of the Trager® approach; three commenters opposed the inclusion of Rolfing® in the definition of massage therapy and stated reflexology, shiatsu, Trager®, and Rolfing® are not the manipulation of soft tissue for the purpose of body massage; one commenter noted Rolfing® does involve the manipulation of soft tissue; one commenter proposes to exclude all forms of "bodywork" that are not for the purpose of body massage; and one commenter opposed including all modalities and techniques as massage therapy so individuals will have choices in seeking alternative methods of healing.

Response: The department agrees in part with the commenters. The definition of massage therapy was proposed to include reflexology, Rolfing®, Shiatsu, Tellington Touch on humans, and the Trager® approach. As a result of meetings with stakeholders and comments received during the comment period, the department determined that including specific modalities in the definition is not appropriate because some of the techniques and modalities may not involve the manipulation of soft tissue for the purpose of body massage and the types of advanced techniques and modalities are too numerous to provide an inclusive list. Additionally, the definition of "massage therapy" in the Act does not include a list of specific modalities. The department will continue to study alternate techniques and modalities on an individual basis to determine whether each constitutes the manipulation of soft tissue by hand or through a mechanical or electrical apparatus for the purpose of body massage. The definition of massage therapy has been modified to delete references to specific techniques or modalities.

Comment: Concerning the definition of "massage therapy", one commenter recommended excluding individuals practicing non-massage titled hands-on practices for which national standards exist and suggested the department require: (1) the regulation of only massage-title practices; (2) educational requirements that pertain only to massage-titled practices; (3) specific definition of each massage-titled practice; (4) only massage-titled diplomas be issued by registered massage therapy schools; and (5) full and fair disclosure of definitions and educational attainment be posted in the massage therapy workplace.

Response: The department disagrees. The Act mandates registration for anyone who engages in the practice of massage therapy and defines massage therapy as the manipulation of soft tissue for the purpose of body massage. The Act establishes regulations for the practice of massage therapy as defined in the Act and does not grant the department the authority to regulate only massage-titled practices. Massage therapy schools and instructors are not prohibited by the Act from offering courses in advanced or alternate techniques if those advanced or alternate techniques are not otherwise regulated; therefore, the department would not have the authority to require only massage-titled diplomas be issued by registered schools. No changes were made as a result of this comment.

Comment: Concerning the definition of "massage therapy", four commenters noted support for the language in the definition of massage therapy that excludes Reiki and Therapeutic Touch and one commenter suggested that any form of "energetic manipulation" or energy work be excluded from the definition of massage therapy.

Response: The department responds that as a result of stakeholder meetings and other comments on the proposed rules, the department has removed references to specific alternate techniques and modalities. Techniques, modalities, or practices which do not involve the manipulation of soft tissue for the purpose of body massage will not be considered as the practice of massage therapy.

Comment: Concerning the definition of "massage therapy", one commenter indicated that if techniques such as reflexology should be included in the definition of massage therapy, then those techniques should be regulated as reflexology. The commenter is concerned that the educational requirements for massage therapy are not sufficient to ensure that persons practicing reflexology are adequately trained. Additionally, the commenter stated that if reflexology is not regulated under massage therapy, then the practice needs to be regulated somehow to make sure standards are higher.

Response: The department agrees in part with the commenter. As a result of stakeholder meetings and other comments on the proposed rules, the department has removed references to specific alternate techniques and modalities. Techniques, modalities, or practices which do not involve the manipulation of soft tissue for the purpose of body massage will not be considered as the practice of massage therapy. The Act establishes educational requirements for registration under the Act and does not authorize the department to establish educational requirements for specific techniques or practices. No changes were made as a result of this comment.

Comment: Concerning the definition of "massage therapy", one commenter suggested adding "but not limited to" when listing techniques, modalities, or practices that are considered the practice of massage therapy.

Response: The department responds that the sentence the commenter suggested amending has been deleted as a result of other comments and no change was necessary as a result of the comment.

Comment: Concerning the definition of "massage therapy educational program", one commenter suggested changing the term to the "educational program for registration".

Response: The department responds that there is not a sufficiently significant difference in the two phrases to change the term throughout the sections. No change was made as a result of this comment.

Comment: Concerning the definition of "massage therapy instructor", one commenter suggested inserting the word "registered" before massage therapy instructor.

Response: The department responds that the term "massage therapy instructor" is defined in the Act and that the definition in the rules mirrors the definition in the Act. The department agrees the term refers to registered massage therapy instructors and no change was made as a result of the comment.

Comment: Concerning the definition of "owner", one commenter noted that school is referenced but not defined. The commenter also suggests including other legal entities and LLCs in the definition of owner.

Response: The department has modified the language to reference a massage therapy educational program rather than school and added language to include any other legal business entity.

Comment: Concerning the definition of "physiology", one commenter stated that there is no such thing as circulatory secretion.

Response: The department agrees and has added punctuation to clarify the definition of physiology.

Comment: Concerning the definition of "physiology", one commenter suggested removing the words "normal" and "vital" from the definition of physiology because schools need to teach enough about pathology to assist with recognizing contraindications to massage as a whole and to specific techniques.

Response: The department responds that the definition of "physiology" is not the only direction provided to massage therapy educational programs concerning the 25 hours of physiology required for registration. The department provides a curriculum to educational programs they are to follow and the programs are allowed to select the textbook to be used. Defining physiology does not limit an educational program from teaching pathology necessary to assist in recognizing contraindications to massage. No change was made as a result of this comment.

Comment: Concerning the definition of "state-approved educational institution", one commenter noted that the definition is not clear that it refers to a school, and the commenter suggested that massage school needs to be defined. The commenter also opposed any requirement that massage schools be regulated by the Texas Education Agency (TEA).

Response: The department responds that the definition of "state-approved educational institution" does not refer to massage schools, which are defined in the Act. The Act, §455.156(b) sets out that state-approved educational institutions are alternative methods for obtaining the 300 hour course of instruction. State-approved educational institution is not defined in the Act so defining it by rule is necessary. Additionally, the term is currently defined in existing rules using the same definition and the department confirms that massage schools and massage therapy educational programs are regulated by the department. No change was made as a result of this comment.

Comment: Concerning §141.2(d)(3), one commenter suggested the fee for a new certificate based on a name change has, in the past, and should now apply to all registrants, not just the 300 hour massage therapy educational programs.

Response: The department agrees and has moved §141.2(d)(3) to new subsection (i). The paragraphs under subsection (d) have been renumbered.

Comment: Concerning §141.5(a), one commenter suggested adding "under the auspices of" to the language in subsection (a).

Response: The department disagrees because it does not add to the ability to enforce the proposed language. No change was made as a result of this change.

Comment: Concerning §141.5(e), one commenter stated that requiring an initial consultation and documentation will create unnecessary paperwork that has no value, especially for massage therapists who specialize in relaxation massage.

Response: The department disagrees. The massage therapy registration program has noted a growing number of complaints that staff believes could have been avoided had the massage therapist communicated more completely with the client about the issues listed in §141.5(h) and if the client had been better informed about what he or she should expect from the massage therapy session. No change was made as a result of the comment.

Comment: Concerning §141.5(e), one commenter suggested that maintaining records for a minimum of three years on a potential one time client is excessive and recommended modifying the requirement to one year from the last visit.

Response: The department agrees in part. Three years may be longer than necessary to maintain the record of a client who becomes a one-time client. However, because there is no statute of limitations on filing a complaint against a registrant, it is in the interest of the massage therapist to maintain the records for more than one year. The language has been modified to reflect that the records should be maintained for a minimum of two years.

Comment: Concerning §141.5(d), (e), (g), (h), (i), (k), and (r), one commenter noted that while the requirements reflect good and ethical business practices, it is not appropriate or necessary to extend rules into the business and financial aspects at that level of detail.

Response: The department disagrees. The Act requires that rules relating to massage therapists must contain minimum standards for the practice of a massage therapist including the records kept by the massage therapist. The requirements in (k) and (r) are currently in effect for massage therapists and are not new requirements. Additionally, the requirement in (k) is set out in the Health Professions Council Act, Occupations Code, Chapter 101, and applies to all health professions regulated by any regulatory agency that is a member of the Health Professions Council, including the health licensing division of the Texas Department of Health (Professional Licensing and Certification Division). No change was made as a result of the comment.

Comment: Concerning §141.5(f), one commenter suggested that "minor" should be defined.

Response: The department agrees and has modified the language in subsections (f) and (g) to clarify that minor refers to persons under the age of 17.

Comment: Concerning §141.5(g), one commenter stated the requirement for documentation is excessive, burdensome, and unnecessary and noted that doctors, physical therapists, occupational therapists, nurses, and others are not required to maintain and provide the same documentation.

Response: The department disagrees and responds that the Health Professions Council Act, Occupations Code, §101.202, requires that health care professionals provide, in plain language, a written explanation of the charges for professional services previously made on a bill or statement for the patient. The Health Professions Council Act applies to all health professions regulated by any regulatory agency that is a member of the Health Professions Council, including the health licensing division of the Texas Department of Health (Professional Licensing and Certification Division), physicians, physical therapists, occupational therapists, nurses, and others. No change was made as a result of the comment.

Comment: Concerning §141.5(h)(1)-(6), two commenters stated opposition to all elements of a consultation form. One stated that the records identifying the techniques to be used during a massage session were meaningless to most clients; that listing the parts of the body to be massaged is pointless documentation and excessive paperwork; that breast massage is appropriate and indicated related to lymph flow, surgery, or implants; that therapists should be trusted to use professional judgement and clients should be informed users of services; that draping should not be legislated; that massage therapists are professionals not prostitutes; that the draping requirement is too vague; and the requirement creates too much paperwork without enhancing quality of work or ethical behavior. One of the commenters objected to the requirement of an initial consultation and documentation and considers the requirement to be "insulting", "demeaning", and "reactionary"; that it does not accomplish anything and is time consuming; that it may be useful in some settings, but is unnecessary in others; and that there is no need for professionals to be mistrusted by requiring written consent for breast massage.

Response: The department disagrees. The requirements for the initial consultation and consultation form were developed after a meeting with massage therapists who indicated that they do provide consultation to clients. The department's decision to require a written version that both the therapist and the client can sign resulted from consumer complaints received during the last two years that may have been avoided had there been better communication between the massage therapist and the client. No change was made as a result of the comments.

Comment: Concerning §141.5(h), one commenter asked for clarification concerning which clients the requirement applies to; whether all techniques could be listed for all clients because the therapist does not always know which techniques will be used; how specific does the therapist need to be when identifying the parts of the body to be massaged; and how detailed the consultation form should be when listing indications and contraindications to massage. The commenter is concerned about the amount of paperwork a massage therapist will be required to generate and maintain.

Response: The department disagrees. The requirements for the initial consultation and consultation form were developed after a meeting with massage therapists who indicated they do provide consultation to clients. The department's decision to require a written version that both the therapist and the client can sign resulted from consumer complaints received during the last two years that may have been avoided had there been better communication between the massage therapist and the client. No change was made as a result of the comment.

Comment: Concerning §141.5(h), one commenter stated that the requirement for an initial consultation and documentation form is too much paperwork for massage therapists whose practice is limited to general wellness massage. The commenter also opposed the additional paperwork for massage therapists whose practice is based on medical referrals because the chart notes would be required and used in that situation. An initial consultation and documentation form would be duplicative.

Response: The department disagrees. The requirements for the initial consultation and consultation form were developed after a meeting with massage therapists who indicated they do provide consultation to clients. The department's decision to require a written version that both the therapist and the client can sign resulted from consumer complaints received during the last two years that may have been avoided had there been better communication between the massage therapist and the client. Massage therapists who maintain chart notes for medical referrals would not necessarily be required to maintain two separate documents. The intent of the requirement is that registrants provide clients with information so the client knows what to expect. No change was made as a result of the comment.

Comment: Concerning §141.5(i), one commenter stated that the cross reference to subsection (h)(1)-(6) should be amended to (h)(1)-(4) since the information required in paragraphs (5) and (6) will not change from one session with a client to the next.

Response: The department agrees and has modified the language to cross reference subsection (h)(1)-(4).

Comment: Concerning §141.5(h)(1)-(4) and (i), one commenter suggested modifying the language to clarify that the initial consultation does not require a separate session or consultation and is opposed to requiring discussion and documentation of the techniques to be used and the body parts that may be massaged. The commenter believes the requirements are demeaning and requests the department to indicate other health care professionals who are required to follow these same practice requirements. The commenter is also opposed to discussing draping practices and preferences with the client. Concerning subsection (i), the commenter agrees it may be reasonable to require records kept in relation to changes in a client's needs, however, it is unreasonable to require written modifications to parts of the body being massaged. The commenter suggests changing the subsection to allow discussion with client regarding the techniques the therapist anticipates using rather than written documentation.

Response: The department disagrees. The massage therapy registration program has noted a growing number of consumer complaints that staff believes could have been avoided had the massage therapist communicated more completely with the client about the issues listed in §141.5(h) and if the client had been better informed about what he or she should expect. No change was made as a result of the comment.

Comment: Concerning §141.5(h) and (i), one commenter stated opposition to a consultation document that requires the therapist to discuss specific body parts, and stated that a discussion and consultation document may cause clients to have concerns they would not have otherwise had. The commenter is also concerned the requirement will create a bureaucratic paperwork nightmare for the conscientious, hard-working, ethical registrants who already follow the rules.

Response: The department disagrees. The massage therapy registration program has noted a growing number of consumer complaints that staff believes could have been avoided had the massage therapist communicated more completely with the client and if the client had been better informed about what he or she should expect. No change was made as a result of the comment.

Comment: Concerning §141.5(h) and (i), four commenters considered that an initial consultation may put chair massage therapists out of business because chair massages are based on convenience and affordability; chair massages are often conducted in public venues; clients are not required to remove clothing; the average chair massage takes only 15 to 20 minutes; and neither therapists nor clients will want to take the time for an interview before each chair massage session. One of the commenters stated that at sporting events, a person is out of a race or game temporarily and needs immediate attention. Requiring the consultation in that situation would be impossible. One of the commenters requested an exemption for chair massage.

Response: The department disagrees with the commenters. Massage therapists are trained in the indications of and contraindications to massage for clients, or the benefit of massage and specific conditions the client may have that would indicate the client is not a candidate for any type of massage. While chair massage is fairly routine, the fact that it is convenient, brief, conducted in public and provided to fully clothed clients does not alter the massage therapist's responsibility to ensure that any massage technique is appropriate for each prospective client. Massage therapists may create a document that provides the information required in §141.5(h) and allow the client a few minutes to read the information. The document could list specific contraindications to massage so the client can decide whether the chair massage will be beneficial or whether a condition exists that would indicate the client should not receive massage. Because the client's reason for seeking a chair massage would not change and because the nature of chair massage does not rely solely on repeat business, each consultation could be handled as an initial consultation and would not automatically require that §141.5(i) be applied. No change was made as a result of the comments.

Comment: Concerning §141.5(i), one commenter suggested that a client is much more likely to remember he or she wishes some different or additional massage therapy service after they are already on the massage table being treated by the therapist and that the need to modify a technique may only become apparent during the session. The commenter further suggests that most clients would consider it ludicrous to interrupt the session to fill out more paperwork.

Response: The department agrees; however, §141.5(i) does not prohibit modification of the consultation document after a subsequent massage therapy session. No change was made as a result of the comment.

Comment: Concerning §141.5(h)(1), one commenter suggested that requiring registrants to list the type of techniques he or she anticipates using could result in registrants simply creating a form that lists all of the modalities he or she knows. The commenter believes that providing the information after the first session would result in a more realistic assessment.

Response: The department disagrees. The intent of the requirement is to ensure first time clients understand what to expect during a massage session. No change was made as a result of the comment.

Comment: Concerning §141.5(h)(2), one commenter recommends that instead of listing the parts of the body that will be massaged that it would be easier and shorter to list the parts of the body the client wishes the therapist to avoid. The commenter also suggests that clients who simply wish to have a massage may consider it an invasion of their privacy to require them to give the therapist the necessary information to make the correct determination as to the true indications for massage.

Response: The department agrees in part and has modified the language to allow for either a list of the areas of the body to be massaged or the areas to be avoided to be included on the consultation document. The intent of the requirement is to ensure that the therapist and client discuss expectations, are in agreement about what the massage will involve, and document their agreement. Section 141.5(h)(2) does not require a client to provide information the client feels may violate his or her privacy. The intent of the requirement is that the registrant provide information to the client about indications and contraindications to massage and that the information and the client's responses, if any, be documented. If a client does not provide information to the registrant that would allow the registrant to identify indications or contraindications, then that would be reflected on the form signed by both the registrant and the client.

Comment: Concerning §141.5(h)(3), one commenter suggested having a potential client initial a release or request statement on the consultation form if they wish to have breast massage, rather than requiring a signature.

Response: The department disagrees. The intent of the consultation and documentation of the consultation is to ensure that the therapist and the client discuss expectations, that they are in agreement about what the massage will involve, and that they document their agreement. No change was made as a result of the comment.

Comment: Concerning 141.5(h)(3), one commenter suggested the need to clarify whether the requirement for written consent to breast massage applied to both women and men.

Response: The department agrees and has modified the language to be consistent with §141.6(a)(2). Written consent of female clients is required for breast massage.

Comment: Concerning §141.5(k), one commenter stated that the department has no jurisdiction over the pricing of massage services and assumes the prohibition of persistent or flagrant overcharging is aimed at discriminatory practices. The commenter suggests the department clarify the language. Additionally, the commenter indicated the portion of the subsection that prohibits over treating a client would be difficult to define because client needs and wishes vary.

Response: The department disagrees. The requirements in §141.5(k) exist in the current massage therapy rules and the language is clear that the prohibition for overcharging and over treating apply to unscrupulous practices. Additionally, this requirement is set out in the Health Professions Council Act, §101.203, which applies to all health professions regulated by any regulatory agency that is a member of the Health Professions Council, including the health licensing division of the Texas Department of Health (Professional Licensing and Certification Division). No change is made as a result of the comment.

Comment: Concerning §141.5(r)(1) and (2), one commenter suggested these paragraphs should end with the word "or".

Response: The department disagrees. The correct Texas Register format is used and the "or" appears between paragraphs (3) and (4). No change was made as a result of the comment.

Comment: Concerning §141.6, one commenter suggested that the phrase "during a session" is too ambiguous and needs to be better defined.

Response: The department disagrees and considers "during a session" to adequately reflect a session during which a client seeks out or receives massage therapy services from a registrant. No change was made as a result of the comment.

Comment: Concerning §141.6(a)(1)-(7), one commenter opposed defining sexual misconduct in explicit terms and suggested using the language that "a registrant shall not engage in unprofessional or inappropriate contact with a client."

Response: The department disagrees. The suggested language is too vague and ambiguous to be enforceable. The department must be able to identify a specific act if an investigation results in the pursuit of disciplinary action. No change was made as a result of the comment.

Comment: Concerning §141.6(a)(2), one commenter objects to the written consent for breast massage and asks what other health care professionals are required to do this.

Response: The department disagrees. The existing massage therapy rules currently prohibit a massage therapist from massaging the breasts of a female client without the client's consent. The department has resolved consumer complaints over the years through informal agreements and agreed orders requiring the therapist to obtain the written consent of a female client before providing breast massage. Requiring written consent will decrease the number of misunderstandings between massage therapists and clients that result in complaints being filed with the department. Other health care professionals are not specifically authorized to perform body massage and may have varying protocols for similar situations. No change is made as a result of the comment.

Comment: Concerning §141.6(a)(5), a commenter suggested that the word "deviate" should be changed to "deviant".

Response: The department responds that the language in paragraph (5) is taken from the Texas Penal Code and that deviate is the correct word in this context. No change is made as a result of the comment.

Comment: Concerning §141.7(a), one commenter suggested adding continuing education providers to the language prohibiting the use of the word "massage" by unregistered persons.

Response: The department responds that continuing education providers would be covered as a "person". No change was made as a result of the comment.

Comment: Concerning §141.7(b)(4), four commenters disagree and believe the use of testimonials from actual clients is appropriate, and two believe this requirement treats massage therapists different from other health care professionals.

Response: The department disagrees. The provisions in §141.7(b) concerning advertisements are required by the Health Professions Council Act, Occupations Code, §101.201, and apply to all health professions regulated by any regulatory agency that is a member of the Health Professions Council, including the health licensing division of the Texas Department of Health (Professional Licensing and Certification Division). Additionally, the advertising requirements set out in §141.7 are required in the existing massage therapy rules. No change was made as a result of the comments.

Comment: Concerning §141.7(b)(8), three commenters stated the language is unclear, arbitrary, not definable and is unenforceable. Two considered it odd to use the term patient rather than client.

Response: The department agrees in part. The language in §141.7(b)(8) was taken verbatim from the Health Professions Council Act, Occupations Code, §101.201, and applies to all health professions regulated by the regulatory agencies that are members of the Health Professions Council. The term patient is more commonly used among the professions; however, the department has defined and uses the term client in its proposed rules and has modified the language in this paragraph for consistency. The department does not agree that the language is unclear or arbitrary.

Comment: Concerning §141.7(d)-(h), a commenter asked if the advertising requirements apply to massage schools teaching programs for registration or continuing education providers.

Response: The department responds that §141.7(d)-(h) applies to the massage schools and massage therapy educational programs providing instruction in the 300 hour course of instruction for registration. The advertising requirements and prohibitions found in §141.7(b)(1)-(9) would apply to continuing education providers. No change was made as a result of this comment.

Comment: Concerning §141.7(i), two commenters disagree with prohibiting massage schools from the use of statements indicating the school has been accredited unless the accreditation is that of an accrediting agency listed by the United States Office of Education because the United States Office of Education does not include nationally recognized agencies that accredit massage therapy programs, such as the Commission on Massage Therapy Accreditation (COMTA).

Response: The department agrees in part and the language in §141.7(i) has been changed to delete the reference to the United States Office of Education. However, the department is concerned that advertisements and statements concerning accreditation be clear to prospective students and the general public. Therefore, the language in §141.7(i) has also been modified to require the name of the nationally recognized accrediting agency in any statement or advertisement related to accreditation.

Comment: Concerning §141.11(c), which sets out that registration applications not completed within 30 days after the date of notice of deficiency will be voided, one commenter suggested clarifying whether the 30 days applies to the postmark date or the date the department receives the additional documentation.

Response: The department responds that the postmark date will be used; however, the language in subsection (c) does not require modification. No change was made as a result of the comment.

Comments: Concerning §141.11(d)(4), which requires applicants to sign a statement that he or she understands fees are non-refundable, one commenter suggested adding the language "except as provided in section §141.3(c)" which allows for the refund of fees under certain circumstances.

Response: The department disagrees. Section 141.11(d) sets out information required on an application form and to include the suggested language would be nonsensical in that context. Additionally, §141.3(c) sets out procedures for an applicant to request a refund only in circumstances where the department has failed to process an application within stated time frames. The language in §141.3 clearly sets out procedures for requesting a refund and it is not necessary to reference that section in §141.11(d). No change was made as a result of the comment.

Comments: Concerning §141.14(i), one commenter stated that it should not take 30 days for the department to grade an examination and send the results to the examination candidates.

Response: The department disagrees. The Act, Texas Revised Civil Statutes, Article 4512k, §7E, establishes 30 days as the maximum time frame for grading examinations and notifying candidates of the results. No change was made as a result of the comment.

Comments: Concerning §141.14, one commenter suggested the department should establish more examination dates.

Response: The department neither agrees nor disagrees with the commenter. The proposed language in §141.14(h) allows the department to establish examination dates and locations; and currently, the department administers three examinations per year. Current resources prohibit holding more than three examinations per year. No changes are necessary as a result of the comment.

Comment: Concerning Subchapter D and the continuing education requirements in general, one commenter is concerned that massage therapists who specialize in Rolfing® will be forced to take continuing education that does not relate to their specialization. Additionally, the commenter is concerned that the requirements create a restriction of free trade and limits Rolfers from teaching rolfing techniques.

Response: The department disagrees. The continuing education requirements allow credit for advanced and alternate bodywork techniques and does not prohibit the instruction of advanced and alternate bodywork techniques. No changes were required as a result of this comment.

Comment: Concerning 141.20(a)(1), one commenter stated the six hours per year required for continuing education is a reasonable amount.

Response: The department agrees and no change was made as a result of the comment.

Comment: Concerning §141.20(a), one commenter does not think that massage therapists who have had extensive training in massage therapy will benefit from the continuing education requirements and should not be required to participate in the continuing education requirements.

Response: The department disagrees. The Act, Texas Revised Civil Statutes, Article 4512k, §7G, requires the department to recognize, prepare, or administer continuing education programs for its registrants. It is not possible or appropriate for the department to establish different requirements for specific categories of registrants. No change was made as a result of the comment.

Comment: Concerning §141.20(a), one commenter stated that six hours of continuing education is a burden on massage therapists; that continuing education requirements penalize persons who engage in the practice of massage therapy on a part time basis; and that the department should regulate the costs of continuing education.

Response: The department disagrees. The department established a six hour requirement so that compliance with continuing education requirements would not be unnecessarily burdensome for registrants. The department will accept attendance at a variety of activities that can be obtained locally at minimal costs to massage therapists such as local meetings of professional association affiliates, health related or business courses taught at or through community colleges or universities, and courses such as first aid and CPR. The department is authorized to establish continuing education requirements for its registrants, but is not authorized to regulate the cost of programs, seminars, workshops, activities, etc. No changes were made as a result of this comment.

Comment: Concerning §141.20, one commenter asked if massage therapy schools will need to develop a different form for documenting continuing education and asked how the schools would issue credit to a person who takes six hours of a 12 hour workshop.

Response: The department neither agrees nor disagrees and the comment does not require changes to the proposed language. The department will accept the same transcripts schools currently provide to students or will accept any documentation the school decides to use to verify attendance at programs, courses, workshops, seminars etc. A school is not required to provide a certificate of attendance to a person who attends a portion of a course nor is the school prohibited from doing so. No changes were made as a result of the comment.

Comment: Concerning §141.20, one commenter asked for clarification of the conversions set out in (b)(1)-(3), and suggested changing subsection (c) to read "one clock hour of classtime constitutes one hour of continuing education" rather than "a clock hour is equal to 50 minutes". The commenter also indicated confusion regarding continuing education units.

Response: The department responds that all of the criteria used in determining continuing education credit are standard conversion criteria. "Continuing education unit" is a specific educational term used by some organizations in describing and assigning credit. Organizations that use the continuing education unit or CEU formula assign credit as one (1) unit represents 10 clock hours, therefore, one clock hour would convert to 0.1 units or one-tenth of a unit. The department has used clock hours rather than units or the CEU formula for assigning credit. Defining one clock hour as 50 minutes is also a standard educational criteria. No changes were made as a result of the comment.

Comment: Concerning §141.20(b) and §141.22(4), one commenter stated that requiring attendance at continuing education events and activities and not allowing independent study as a means to meet the continuing education requirements, creates a hardship on massage therapists. A second commenter asked that independent study be accepted.

Response: The department disagrees. The department considered many factors in establishing the continuing education requirements to ensure that the requirements would not be unnecessarily burdensome for registrants. The number of hours was set at six so that in most cases, overnight travel and accommodations would not be required. The pre-approved provider category was established in part so that registrants would not be required to obtain the continuing education hours from a massage therapy school. Additionally, the department will accept many courses that can be obtained locally for the majority of massage therapists, such as local meetings of professional association affiliates, health related or business courses taught at or through community colleges or universities, and courses such as first aid and CPR. No changes were made as a result of the comments.

Comment: Concerning §141.20(a), one commenter stated that the only reason for requiring continuing education is to insure the safety of the client and that he believes there is a profound lack of incidents in which a client has been injured by massage therapists. Therefore, the commenter is concerned that the continuing education requirements will only benefit instructors who will charge whatever they want for the training and that massage therapists will have no option but to pay.

Response: The department disagrees because there are several avenues available to massage therapists for obtaining the continuing education, such as professional association meetings and courses offered by colleges and universities. Additionally, some prospective continuing education providers have indicated to department staff that they are interested in ensuring affordable programs will be provided. The requirements are intended to maintain and improve the quality of services provided to the public by massage therapists. No change was made as a result of this comment.

Comment: Concerning §141.20(a), two commenters support the continuing education requirements and one suggests a maximum number of hours be established.

Response: The department agrees with the commenters and responds that §141.20(a) does set a required number of hours at six per year. No change was made as a result of the comments.

Comment: Concerning §141.20(a), three commenters suggested limiting the years of continuing education by not requiring continuing education for massage therapists after 20 or 25 years.

Response: The department disagrees. The massage therapy registration requirements have been in effect since 1985 without continuing education requirements and the department was careful to establish a minimum requirement that would fairly and consistently meet the statutory requirements without imposing an undue burden on registrants. No change was made as a result of these comments.

Comment: Concerning §141.21, one commenter supports the rules relating to continuing education requirements and would not support rules that required continuing education be provided only by massage therapy schools. Additionally, the commenter believes schools will be able to sufficiently compete with individual presenters.

Response: The department agrees and no changes were made as a result of the comment.

Comment: Concerning §141.21(a), one commenter asked for clarification of the term "participation in or completion of" continuing education programs or activities and one commenter requested clarification regarding who determines an approved program.

Response: The department agrees and has modified the proposed language to read "attendance at and completion of" continuing education programs or activities. Additionally, the department confirms that the department is responsible for approving or recognizing continuing education programs approved by other organizations. No change was made as a result of these comments.

Comment: Concerning §141.21 and §141.24, two commenters are concerned that the requirements for continuing education presenters do not afford sufficient quality assurance of continuing education presentations. Additionally, the commenters suggest that since massage schools go through rigorous requirements to maintain quality, that at least the continuing education originating in-state be channeled through the massage therapy schools.

Response: The department disagrees. The department reviewed continuing education requirements for many other professions during its consideration and establishment of requirements for approximately 17,000 registered massage therapists. The majority of those reviewed allow a great deal of flexibility with regard to continuing education and allow the regulated persons the ability to seek out workshops, programs, and events of personal interest in areas related to the profession. To require that the hours be offered by and obtained through registered massage schools may create difficulties for massage therapists in rural areas to complete the requirements.

Comment: Concerning §141.21(b), one commenter asked the department to clarify whether the language referring to out-of-state presenters being licensed to practice nursing means RNs or LVNs.

Response: The department disagrees. The terms RN and LVN are terms used and regulated in Texas. The language in §141.21 refers to persons licensed, registered, or certified in other states and the more generic language is appropriate. No change was made as a result of this comment.

Comments: Concerning §141.21(b), one commenter suggested interchanging the order of paragraphs (2) and (3) and adding the word "or" between the two. The commenter suggested that otherwise, paragraph (1) makes paragraph (3) illegal.

Response: The department disagrees and responds that paragraph (3) pertains only to out-of- state presenters. No change was made as a result of the comment. Comment: Concerning §§141.21-141.22, one commenter recommends the department accept research and independent study to meet the continuing education requirements.

Response: The department disagrees. The proposed requirements afford a great deal of flexibility without imposing an undue burden on registrants. If the hour requirement were to be raised from the six hours proposed, then it might be more appropriate to consider allowing a portion from research or independent study. No change was made as a result of the comment.

Comment: Concerning §141.24, one commenter stated that the proposed "loosening" of the approval process for workshops is "too loose, too fast" and that approved massage schools should serve as gatekeepers for all continuing education offered other than that which is taught in TEA approved educational institutions or state or national conferences. The "gatekeeper" role would (1) examine and analyze all proposed continuing education from out-of-state presenters to ensure proper content, removing such burdens from the department; (2) ensure quality of continuing education by facilitating appropriate and effective curriculum, instruction, and environment; and (3) schools can be more accountable to the department than out-of-state presenters, ensuring better protection for the registrants in terms of monetary losses and unauthorized continuing education. The commenter also sets out the benefits to the department if the schools act as "gatekeepers" as (1) fewer providers to oversee; (2) registrants are protected by the schools from "fly-by-night" schemes; (3) schools will have more integrity, limiting the "selling" of certificates; (4) schools are responsible for offering only approved continuing education; and (5) the department can verify what schools are offering through random audit. Additionally, the commenter is concerned that registrants may register and pay for a certain workshop, seminar, or activity and attend believing he or she will receive credit for the workshop. The registrant may not learn until the time of audit that the activity will not be accepted by the department for credit.

Response: The department disagrees. The Act authorizes the department to recognize, prepare, or administer continuing education programs for its registrants. Many factors were considered in establishing the continuing education requirements. The department reviewed continuing education requirements for other professions during its consideration and establishment of requirements for approximately 17,000 registered massage therapists. The majority of those reviewed allow a great deal of flexibility with regard to continuing education and allow the regulated persons the ability to seek out workshops, programs, and events of personal interest in areas related to the profession. To require that the hours be offered by and obtained through registered massage schools may not afford the same flexibility for massage therapists in rural areas to complete the requirements. Additionally, the continuing education requirements proposed do not create a burden on the department for the recognition, preparation, or administration of the requirements. The flexibility of choosing programs of interest also creates a responsibility on the part of each registrant to ensure the activities he or she chooses will be accepted by the department. The department will maintain lists of pre-approved providers, massage schools, and approved programs, and make the lists available to registrants. No change was made as a result of the comment.

Comments: Concerning §141.25, a commenter supported the need to monitor continuing education through a random audit system, but is concerned that the process as proposed would allow registrants to wait until the last minute and if not selected for audit would be able to renew without complying with the continuing education requirements. If the notice of audit is sent with the renewal application, there is enough time for the registrant to take a quick workshop, complete the audit satisfactorily, and renew on time. The commenter suggests instead that each registrant sign a statement of assurance at the time of renewal and then the notice of audit be sent with the annual renewal card.

Response: The department disagrees. Each registrant will sign a document at the time of renewal indicating whether he or she has completed the hour requirements and listing the activity or activities attended. If a registrant receives notice that he or she has been selected for audit, the registrant will also include copies of certificates of attendance. The purpose of renewal is to ensure that a registrant has met all requirements of law to continue to hold a registration. If an audit after the renewal showed the registrant had failed to meet the continuing education requirements, the department would then be required to pursue disciplinary action against the registrant, instead of simply denying the renewal. No change was made as a result of the comment.

Comment: Concerning §141.28, one commenter is concerned that the language requiring each massage therapy educational program to designate a person as the director of the program is not consistent with the Act which allows the 300 hour course of instruction be taught by a single massage therapy instructor.

Response: The department disagrees. Section 141.28(a) clearly states that in the case of a massage therapy instructor operating the educational program independently, the director is the massage therapy instructor. No change is made as a result of this comment.

Comment: Concerning §141.29(a)(3), four commenters recommended increasing the training hours for massage therapy instructors; with one suggesting the department require two (2) years and 1,000 hours of hands-on practice and one suggesting 1,000 hours in a one (1) year period.

Response: The department disagrees. The new rules did increase the requirements for massage therapy instructors. Previously, instructors have been required to attend a course on or have experience in teaching adult learners, but no hour requirement was established. Massage therapists were also required to be registered as massage therapists for two years or one year if licensed or registered in another health care field, such as nursing, physical therapy, athletic training, etc, but did not require that the massage therapist engage in the practice of massage therapy. The new rules for massage therapy instructors require a registrant to be registered a minimum of one year, with at least 250 hours of hands-on experience, and to have completed a 30-hour course in teaching adult learners or document equivalent experience or training. Additionally, §141.29(a)(4) sets out that after January 1, 2002, applicants for massage therapy instructor will have to complete a 30-hour course in teaching adult learners. The department will not accept an equivalent experience or training after January 1, 2002. No changes were made as a result of this comment.

Comment: Concerning §141.29(a)(3), one commenter indicated concern that the proposed rules allow that hands-on practice accumulated during the time a person holds a temporary registration could be used to meet the requirements, although the temporary registration is issued prior to the time the person has satisfactorily sat for the massage therapy examination which is required for registration.

Response: The department agrees. A temporary registration is issued to individuals after completion of the 300 hour educational requirement and allows individuals to work until the next examination is offered. The temporary registration expires when the examination results are determined and persons who fail are not eligible for an extension or a second temporary registration. The proposed language has been modified to reflect that the 250 hours of hands-on massage required to be eligible for a massage therapy instructor must be obtained after the person has been issued a permanent registration.

Comment: Concerning §141.29(a)(4), one commenter stated that a 20 hour course in teaching adult learners is inadequate. The commenter also suggested a need for the department to clarify that demonstrated competency in teaching adult learners through experience in formal educational setting should include the preparation of lesson plans and other activities associated with formal education.

Response: The department agrees and has modified the proposed language to require the completion of a course in teaching adult learners that is at least 30 clock hours and to reflect that to demonstrate competency an applicant for massage therapy instructor must verify experience in the development of lesson plans and assessment methods.

Comment: Concerning §141.30(b), one commenter requested the department needs to tighten up the fiduciary responsibility of massage schools and require certified audits rather than compilations.

Response: The department agrees; however, the language in §141.30(a) and (b) does require audited financial documents for all business entities other than sole proprietorships and does not allow for compilations. No change was made as a result of the comment.

Comment: Concerning §141.30(e), one commenter suggested requiring financial statements at the time of renewal which are audited and certified by certified public accountants or public accountants are cost prohibitive for any but the largest massage schools and educational programs. The commenter also indicates that reviewed financial statements are only of value if the owner of the educational program is honest and truthful with regard to the information provided to the accountant. The commenter suggests financial reports do not protect the public from fraudulent business activities and that the requirement actually penalizes the public by increasing the cost of massage training programs.

Response: The department disagrees. Financial statements and records are required so the department can reasonably determine that a massage school or educational training program is solvent. The department understands that the submission of financial records does not always guarantee a massage school will not close without warning to the students; however, in most cases, it is a fair and reasonable gauge of a school's financial stability. No change was made as a result of the comment.

Comment: Concerning §141.31, one commenter suggested using the Texas Education Agency model for change of ownership requirements to ensure that the continuity of the training programs exists when a massage school is sold.

Response: The department disagrees. The department acknowledges that previous requirements created a cumbersome process for the sale of a massage school and that transitions from one owner to another created difficulties. However, the department believes the proposed language, modeled after the requirements for proprietary schools, does allow for a smoother transition at the time of sale and allows the department flexibility in processing changes of ownership. No change was made as a result of the comment.

Comment: Concerning §141.34, one commenter suggested that some direction should be provided to massage schools to ensure that students are able to complete the educational program in the time set out in the pre-enrollment information. The commenter also recommended restoring language which prohibited evening classes from extending beyond a reasonable time.

Response: The department agrees and has added subsection (i) to §141.34 to ensure that students can complete the educational program in the time stipulated and that evening classes do not extend beyond a reasonable time.

Comment: Concerning §141.34(h), one commenter indicated that massage schools with two or more locations in close proximity, such as in major metropolitan areas, often have students who enroll at one location for the classroom hours, but want to attend the internship portion of the educational program at another site because the hours work better for that student's schedule, because it is closer to the student's residence but the classroom hours were not scheduled at a time that met the student's schedule, or for a variety of other reasons. The commenter suggests that students should be allowed that flexibility, if possible. Another commenter suggests deleting the subsection because it could create a problem for students if a school had to close due to fire or insolvency causing the student to start over at another school.

Response: The department agrees that students should be allowed some flexibility when it is in their interest to do so and when it does not cause an undue burden on a school; however, the department is also concerned that a student be provided with the training at the location for which he or she enrolls if the student does not choose to do otherwise. The language in §141.34(h) has been modified to allow students to complete the internship portion of the 300 hour training program at a different location if both the student and the massage school agree.

Comment: Concerning §141.34(h), one commenter states that location leases can and are likely to be up for renewal at times that do not coincide with the completion of a class and that leases are not always renewable, in which case the students that are currently enrolled would not be able to complete the program at that location. The commenter asks for clarification as to whether this subsection requires an educational program to terminate that class and issue refunds of the unearned tuition.

Response: The department disagrees that the rule needs clarification. Section 141.33(e) prohibits massage schools, educational training programs, and instructors from providing instruction of the 300 hour course of instruction at any location that has not been approved by the department. It is the responsibility of the massage school or the educational program to negotiate a lease in a timely manner so that approval of a new location can be accomplished without discontinuing classes. No change was made as a result of the comment.

Comment: Concerning §141.35, one commenter suggests that a massage therapy instructor who instructs the 300 hour course of instruction independently should be allowed to hire additional instructors to teach advanced course work.

Response: The department agrees. No modification to the language in §141.35 is necessary because the rules does not prohibit independent instructors who are approved by the department to instruct the 300 hour course of instruction required for registration from having other instructors teach advanced courses at the location of the educational program.

Comment: Concerning §141.35(b), one commenter suggested the department clarify the word "diagnosis" to indicate that the practice of evaluation (assessment) and observation are fundamentally different skills and should not be prohibited in the training or practice of massage therapy.

Response: The department disagrees. The Act, §455.002(b), clearly states that therapy or therapeutic procedures related to massage do not include the diagnosis or treatment of illness or disease; or any service or procedure for which a license to practice medicine, chiropractic, physical therapy, or podiatry is required by law. It is appropriate to clarify this with regard to advanced training. No change was made as a result of the comment.

Comment: Concerning §141.37(a)(16)(A), one commenter asked that if a person who enrolls in the massage therapy educational program would be permanently barred from registration if at a young adult age, the person was convicted of public indecency even though rehabilitation and adequate time to mature has transpired.

Response: The department responds that public indecency and public lewdness are listed in the Penal Code as sexual offenses and the statutory language does indicate a permanent bar to registration. No change was made as a result of the comment.

Comment: Concerning §141.42(e), one commenter suggested the department clarify how the required termination of students after absences of 15% of the total clock hours in a program should be applied to students who enroll in portions of the 300 clock hour education program required for registration.

Response: The department agrees and has modified the language to clarify that students must be terminated if they accumulate absences of more than 15% of the total clock hours in a program or 15% of a portion of the program if the student enrolls in less than the total 300 hours.

Comment: Concerning §141.43(g)(2), one commenter suggested changing the maximum ratio of 35 pupils to 1 instructor to 36 pupils to 1 instructor to be consistent with Texas Education Agency requirements.

Response: The department agrees and has modified the language. The maximum ratios in §141.43(g)(1) and (2) are recommendations and the language in subsection (g) specifically allows each massage therapy educational program to vary the ratios to conform to specific conditions.

Comments: Concerning §141.54 which establishes exemptions to registrations for massage therapy establishments, a commenter suggests creating exemptions for chair massage being offered on-site in which the business has no fixed location.

Response: The department disagrees. The Act, §455.155(c) allows the department to establish exemptions to registration for massage establishments if the advertising or provision of massage therapy services is incidental to the primary enterprise of a person or business enterprise. Massage therapy services provided by massage therapists are not incidental to the primary enterprise of the therapist. No change was made as a result of the comment.

Comment: Concerning §141.54(9) and (10), a commenter noted that primary athletic and fund raising functions may reasonably last more than 24 hours, such as telethons or public television fund drives. The commenter also suggested changing the reference to registered massage therapy school in paragraph (10) to read massage therapy educational program.

Response: The department responds that athletic and fund-raising functions that anticipate lasting more than 24 hours in a calendar year are not prohibited from requesting exemptions, which will be considered at the time of request. No modification to the rule is necessary as a result of the comment. Concerning the exemption for registered massage therapy schools, the language in paragraph (10) has been modified to reference massage therapy educational program.

The commenters were the Texas Massage School Coalition, the Texas Association of Massage Therapists, and numerous individuals. All commenters were not against the rules in their entirety, however, they expressed concerns, asked questions and suggested recommendations for change as discussed in the summary of comments.

Subchapter G. MANUFACTURE, STORAGE, AND DISTRIBUTION OF ICE SOLD FOR HUMAN CONSUMPTION, INCLUDING ICE PRODUCED AT POINT OF USE

The Texas Department of Health (department) adopts the repeal of existing §§229.111-229.120, and new §§229.111-229.115, concerning the manufacture, storage, and distribution of ice sold for human consumption, including ice produced at point of use. New §229.112 and §229.115 are adopted with changes to the proposed text as published in the December 1, 2000, issue of the Texas Register (25 TexReg 11869). The repealed sections and new §§229.111, 229.113-229.114 are adopted without changes, and therefore will not be republished.

New §§229.111-229.115 cover general provisions; definitions; source water; labeling of packaged ice; and ice equipment. Sections 229.111-229.120 are being proposed for repeal because the rules have not been updated since 1976 and many of the sections contain outdated references or are covered under more recent rules such as 25 Texas Administrative Code (TAC), Chapter 229, Food and Drug, Subchapter N, Current Good Manufacturing Practice and Good Warehousing Practice in Manufacturing, Packing or Holding Human Food. The new sections reorganize and rewrite the requirements resulting in content that reflects current practices in the industry.

Pursuant to the Government Code, §2001.039, each state agency is required to review and consider for readoption each rule adopted by that agency. The current rules have been reviewed and the department has determined that reasons for adopting these sections still exist. However, the language has been updated to better reflect current industry practice and allow for better assurances for the safety of source water used in the production of ice.

The department published a Notice of Intention to Review for §§229.111-229.120 as required by Government Code, §2001.039 in the Texas Register on April 7, 2000 (25 TexReg 3062). No comments were received as a result of the publication of the notice.

Change: Concerning §229.112(2), an editorial change was made in the first sentence to correctly show the possessive of "plant's" published in proposed text as "plants".

The following comments were received by the department concerning the proposed sections. Following each comment is the department's response and any resulting change.

Comment: Concerning §229.115(c), one commenter stated that the requirement for drains in ice storage vaults should be specified only for producers that store ice at 32 degrees Fahrenheit or above.

Response: The department disagrees with the commenter. The purpose of the drain is for proper cleaning of the ice vault. Ice vaults are required in the same section to be kept under sanitary conditions. However, this section applies to block ice plants. The department realizes that the way the section is structured, the application of this section only to block ice plants is not clear. The department has revised §229.115(b) with "facilities" and proposed §229.115(c) with new paragraph (1) and (2).

Comment: Concerning §§229.111-229.115, one commenter requested the rules contain a section requiring sampling of finished product ice.

Response: The department disagrees with the commenter. Prior to the proposal of these rules, the department conducted a limited survey of packaged ice in varying locations throughout the state. Analyses conducted by state approved laboratories found only two of eighty surveillance samples to be positive for total coliform. Follow up samples for the two positive analyses were negative. Therefore, since there is no standard for coliform in packaged ice at the federal level, the department does not feel that the additional burden placed on Texas industry is warranted. The department also has regulatory authority to collect during inspections. In addition, the department has no knowledge of any food-borne illness outbreaks associated with packaged ice. No change was made as a result of this comment.

The commenters were: SouthWest Foods Manufacturing and International Packaged Ice Association.