H.B. No. 449
 
 
 
 
AN ACT
  relating to the regulation of laser hair removal facilities;
  providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 401, Health and Safety Code, is amended
  by adding Subchapter M to read as follows:
  SUBCHAPTER M. LASER HAIR REMOVAL
         Sec. 401.501.  DEFINITIONS. In this subchapter:
               (1)  "Department" means the Department of State Health
  Services.
               (2)  "Executive commissioner" means the executive
  commissioner of the Health and Human Services Commission.
               (3)  "Laser hair removal" means the use of a laser or
  pulsed light device for nonablative hair removal procedures.
               (4)  "Laser hair removal facility" means a business
  location that provides laser hair removal.
               (5)  "Laser or pulsed light device" means a device
  approved by the department and the United States Food and Drug
  Administration for laser hair removal.
               (6)  "Nonablative hair removal procedure" means a hair
  removal procedure using a laser or pulsed light device that does not
  remove the epidermis.
               (7)  "Operator" means the owner of a laser hair removal
  facility, an agent of an owner, or an independent contractor of a
  laser hair removal facility.
         Sec. 401.502.  EXAMINATION.  The executive commissioner may
  adopt rules to govern the development and administration of an
  examination for an applicant under this subchapter.
         Sec. 401.503.  APPLICATION PROCESS. (a) An application for
  a certificate or license under this subchapter must be made on a
  form prescribed and provided by the department.
         (b)  The application must require an applicant to provide
  sworn statements relating to the applicant's education and to
  provide other information required by the department.
         Sec. 401.504.  CERTIFICATE FOR INDIVIDUALS REQUIRED. (a)  A
  person may not perform or attempt to perform laser hair removal
  unless the person holds the appropriate certificate under this
  subchapter.
         (b)  A certificate issued under this subchapter only
  authorizes a person to perform nonablative cosmetic laser hair
  removal. The certificate does not authorize the person to
  diagnose, treat, or offer to treat any client for any illness,
  disease, injury, defect, or deformity of the human body. The
  certificate holder shall specifically disclose this limitation in
  writing to all clients and prospective clients.
         (c)  This subchapter does not require a health professional
  licensed under another law to hold a certificate under this
  subchapter to perform laser hair removal if the performance of
  laser hair removal is within the scope of that professional's
  practice as determined by the professional's licensing board.
         (d)  This subchapter does not apply to a physician or to a
  physician's employee or delegate acting under Chapter 157,
  Occupations Code.
         Sec. 401.505.  CERTIFIED LASER HAIR REMOVAL PROFESSIONAL.  
  (a)  An applicant for a laser hair removal professional certificate
  must:
               (1)  be certified by a recognized certifying agency,
  including the Society for Clinical and Medical Hair Removal or
  another certification entity approved by the department;
               (2)  meet the requirements for a senior laser hair
  removal technician certificate under Section 401.506; and
               (3)  pass an examination administered by the
  department.
         (b)  A certified laser hair removal professional acting
  under the protocol established with a consulting physician may
  perform laser hair removal without supervision.
         Sec. 401.506.  SENIOR LASER HAIR REMOVAL TECHNICIAN. (a)  
  Except as provided by Subsection (b), an applicant for a senior
  laser hair removal technician certificate must:
               (1)  meet the requirements for a laser hair removal
  technician certificate under Section 401.507; and
               (2)  have supervised at least 100 laser hair removal
  procedures, as audited by a certified laser hair removal
  professional.
         (b)  The qualifications for eligibility for an applicant for
  a senior laser hair removal technician certificate who is a
  licensed health professional shall be established by the entity
  that issues licenses for that health profession.
         Sec. 401.507.  LASER HAIR REMOVAL TECHNICIAN. An applicant
  for a laser hair removal technician certificate must:
               (1)  meet the requirements for a laser hair removal
  apprentice-in-training certificate under Section 401.508; and
               (2)  have performed at least 100 laser hair removal
  procedures under the direct supervision of a senior laser hair
  removal technician or a certified laser hair removal professional.
         Sec. 401.508.  LASER HAIR REMOVAL APPRENTICE-IN-TRAINING.
  (a) An applicant for a laser hair removal apprentice-in-training
  certificate must have at least 24 hours of training in safety, laser
  physics, skin typing, skin reactions, treatment protocols, burns,
  eye protection, emergencies, and posttreatment protocols.
         (b)  A laser hair removal apprentice-in-training must work
  directly under the supervision of a senior laser hair removal
  technician or a certified laser hair removal professional.
         (c)  A person must be at least 18 years of age to qualify to
  be a laser hair removal apprentice-in-training.
         Sec. 401.509.  CONTINUING EDUCATION. The department shall
  recognize, prepare, or administer continuing education programs
  for certificate holders. A certificate holder must participate in
  the programs to the extent required by department rule to renew the
  person's certificate.
         Sec. 401.510.  FACILITY LICENSE REQUIRED. (a) A person may
  not operate a laser hair removal facility unless the person holds a
  license issued under this subchapter to operate the facility.
         (b)  A separate license is required for each laser hair
  removal facility.
         (c)  This section does not apply to:
               (1)  a facility owned or operated by a physician for the
  practice of medicine;
               (2)  a licensed hospital; or
               (3)  a clinic owned or operated by a licensed hospital.
         Sec. 401.511.  EXPIRATION OF CERTIFICATE OR LICENSE. The
  executive commissioner by rule may adopt a system under which
  certificates and licenses expire on various dates during the year.
         Sec. 401.512.  RENEWAL OF CERTIFICATE OR LICENSE. (a) A
  certificate or license expires on the second anniversary of the
  date of issuance.
         (b)  A person must renew the person's certificate or license
  on or before the expiration date.
         (c)  The department shall issue a renewal certificate or
  license on receipt of a renewal application in the form prescribed
  by the department, accompanied by a renewal fee in an amount equal
  to the original certificate or license fee.
         Sec. 401.513.  DISPLAY OF LICENSE OR CERTIFICATE. A person
  holding a license or certificate under this subchapter shall
  display the person's license or certificate in an open public area
  of the laser hair removal facility.
         Sec. 401.514.  LASER OR PULSED LIGHT DEVICE. (a) A laser or
  pulsed light device used for laser hair removal in a laser hair
  removal facility must comply with all applicable federal and state
  laws and regulations.
         (b)  A person who adulterates or misbrands a laser or pulsed
  light device violates Chapter 431. The department may investigate
  a person accused of adulterating or misbranding a laser or pulsed
  light device.
         (c)  A person may only use a laser or pulsed light device
  approved for laser hair removal by the federal Food and Drug
  Administration for that purpose and may only use the device at the
  settings expected to safely remove hair.
         Sec. 401.515.  CUSTOMER NOTICE; LIABILITY. (a) A laser hair
  removal facility shall give each customer a written statement
  outlining the relevant risks associated with laser hair removal,
  including a warning that failure to use the eye protection provided
  to the customer by the laser hair removal facility may result in
  damage to the eyes.
         (b)  The executive commissioner shall adopt rules relating
  to the customer notice.
         (c)  Compliance with the notice requirement does not affect
  the liability of the laser hair removal facility operator or a
  manufacturer of a laser or pulsed light device.
         Sec. 401.516.  WARNING SIGNS. (a) A laser hair removal
  facility shall post a warning sign as prescribed by the department
  in a conspicuous location readily visible to a person entering the
  facility. The sign must provide a toll-free telephone number for
  the department and inform the customer that the customer may call
  the department.
         (b)  The executive commissioner shall adopt rules specifying
  the size, content, and design of the sign, with wording listing the
  potential dangers involved.
         (c)  The department shall include with a license application
  and an application for renewal of a license a description of the
  design standards required for a sign under this section.
         Sec. 401.517.  OPERATIONAL REQUIREMENTS. (a)  Except as
  provided by Subsection (b), a laser hair removal facility shall
  have a certified laser hair removal professional or a licensed
  health professional described by Section 401.504(c) present to
  supervise the laser hair removal procedures performed at the
  facility during the facility's operating hours.
         (b)  A laser hair removal facility may continue to perform
  laser hair removal procedures after the facility's certified laser
  hair removal professional leaves the facility if a senior laser
  hair removal technician is present to perform or supervise each
  procedure.  Not later than the 45th day after the date the
  facility's certified laser hair removal professional leaves the
  facility:
               (1)  the facility's senior laser hair removal
  technician must become certified as a laser hair removal
  professional under Section 401.505; or
               (2)  the facility must hire a new certified laser hair
  removal professional.
         Sec. 401.518.  SAFETY. (a) A laser hair removal facility
  operator is responsible for maintaining the laser hair removal
  facility's compliance with the requirements of this subchapter and
  department rules relating to laser and pulsed light devices.
         (b)  A laser hair removal facility operator may not claim,
  advertise, or distribute promotional materials that claim that
  laser hair removal is free from risk or provides any medical
  benefit.
         (c)  A laser hair removal facility operator may not produce
  false or misleading advertising regarding the services offered at
  the facility.
         Sec. 401.519.  CONSULTING PHYSICIAN. (a) A laser hair
  removal facility must have a written contract with a consulting
  physician to:
               (1)  establish proper protocols for the services
  provided at the facility; and
               (2)  audit the laser hair removal facility's protocols
  and operations.
         (b)  Under the rules of the department, a laser hair removal
  facility must document with the department the facility's
  contractual relationship with the consulting physician.
         (c)  The consulting physician must be available for
  emergency consultation with the facility as appropriate to the
  circumstances, including, if the physician considers it necessary,
  an emergency appointment with the client. If the consulting
  physician is unavailable for an emergency consultation, another
  designated physician must be available for the consultation with
  the facility relating to care for the client.
         (d)  This subchapter does not relieve a consulting physician
  or another health care professional from complying with applicable
  regulations prescribed by a state or federal agency.
         Sec. 401.520.  DISCLOSURE OF RECORD PROHIBITED; EXCEPTION.
  (a) Except as provided by Subsection (b), an operator or other
  person may not disclose a customer record required to be kept by the
  department.
         (b)  An operator or other person may disclose a customer
  record if:
               (1)  the customer or a person authorized to act on
  behalf of the customer requests the record;
               (2)  the department, the Texas Medical Board, a health
  authority, or an authorized agent requests the record;
               (3)  the customer consents in writing to disclosure of
  the record to another person;
               (4)  the customer is a victim, witness, or defendant in
  a criminal proceeding and the record is relevant to that
  proceeding;
               (5)  the record is requested in a criminal or civil
  proceeding by court order or subpoena; or
               (6)  disclosure is otherwise required by law.
         Sec. 401.521.  PROHIBITED PRACTICE. (a) A person may not
  operate a laser or pulsed light device with the intent to treat an
  illness, disease, injury, or physical defect or deformity unless
  the person is:
               (1)  a physician;
               (2)  acting under a physician's order; or
               (3)  authorized under other law to treat the illness,
  disease, injury, or physical defect or deformity in that manner.
         (b)  A person who violates Subsection (a) is practicing
  medicine in violation of Subtitle B, Title 3, Occupations Code, and
  is subject to the penalties under that subtitle and under Section
  401.522.
         Sec. 401.522.  ENFORCEMENT; PENALTIES. (a) The department
  may impose an administrative penalty on a person who violates this
  subchapter or a rule adopted under this subchapter. The amount of
  the penalty may not exceed $5,000 for each violation.
         (b)  The department may suspend or revoke a license or
  certificate issued under this subchapter in addition to or instead
  of imposing a penalty under Subsection (a).
         (c)  The executive commissioner shall adopt rules as
  necessary to implement this section.
         SECTION 2.  Section 483.041(c), Health and Safety Code, is
  amended to read as follows:
         (c)  Subsection (a) does not apply to the possession of a
  dangerous drug in the usual course of business or practice or in the
  performance of official duties by the following persons or an agent
  or employee of the person:
               (1)  a pharmacy licensed by the board;
               (2)  a practitioner;
               (3)  a person who obtains a dangerous drug for lawful
  research, teaching, or testing, but not for resale;
               (4)  a hospital that obtains a dangerous drug for
  lawful administration by a practitioner;
               (5)  an officer or employee of the federal, state, or
  local government;
               (6)  a manufacturer or wholesaler licensed by the
  Department of State Health Services under Chapter 431 (Texas Food,
  Drug, and Cosmetic Act);
               (7)  a carrier or warehouseman;
               (8)  a home and community support services agency
  licensed under and acting in accordance with Chapter 142;
               (9)  a licensed midwife who obtains oxygen for
  administration to a mother or newborn or who obtains a dangerous
  drug for the administration of prophylaxis to a newborn for the
  prevention of ophthalmia neonatorum in accordance with Section
  203.353, Occupations Code; [or]
               (10)  a salvage broker or salvage operator licensed
  under Chapter 432; or
               (11)  a certified laser hair removal professional under
  Subchapter M, Chapter 401, who possesses and uses a laser or pulsed
  light device approved by and registered with the department and in
  compliance with department rules for the sole purpose of cosmetic
  nonablative hair removal.
         SECTION 3.  (a)  Not later than September 1, 2010, a laser
  hair removal facility in operation on the effective date of this Act
  must obtain licenses and certificates required by Subchapter M,
  Chapter 401, Health and Safety Code, as added by this Act.
         (b)  Not later than March 1, 2010, the executive commissioner
  of the Health and Human Services Commission shall adopt rules as
  required by Subchapter M, Chapter 401, Health and Safety Code, as
  added by this Act.
         SECTION 4.  (a)  Except as provided by Subsection (b) of this
  section, this Act takes effect September 1, 2009.
         (b)  Sections 401.504, 401.510, 401.517, 401.521, and
  401.522, Health and Safety Code, as added by this Act, and Section
  483.041(c), Health and Safety Code, as amended by this Act, take
  effect September 1, 2010.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 449 was passed by the House on April
  24, 2009, by the following vote:  Yeas 138, Nays 0, 1 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 449 on May 23, 2009, by the following vote:  Yeas 145, Nays 0, 1
  present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 449 was passed by the Senate, with
  amendments, on May 21, 2009, by the following vote:  Yeas 31, Nays
  0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor