The Texas Department of Licensing and Regulation (TDLR) licenses and regulates massage therapists. These professionals can face disciplinary proceedings concerning their licenses if TDLR receives complaints against them and finds that they have violated the rules or laws that apply to them. Since the repercussions of these proceedings can be severe, contacting an experienced Texas massage therapist license defense lawyer should be your first step if you receive notice of a complaint against you.
The Complaint Process at the TDLR
TDLR’s Enforcement Division takes complaints from consumers and other members of the public about members of all occupations that it regulates, including massage therapists. A TDLR intake specialist first reviews a complaint to decide if TDLR has legal jurisdiction over the individual who is the subject of the complaint and if there is reason to believe that the individual has violated a rule or law. If the intake specialist finds that TDLR has jurisdiction over the individual and there is reason to believe that a violation has occurred, TDLR officially opens a case for investigation.
Next, TDLR sends letters to the complainant and the licensee notifying them that the agency has opened a formal case, except in certain investigations. During the investigation, the investigator typically will interview the complaining party, the licensee, and relevant witnesses. Next, the investigator gathers relevant records and documents and may conduct an on-site investigation if necessary. After completing the investigation, the investigator submits a report to a TDLR prosecuting attorney.
The prosecuting attorney ultimately decides how to handle a complaint. For example, the attorney may close the case if they decide that there is insufficient evidence to warrant further action. Sometimes, the attorney may send a warning letter to the licensee and close the case.
Facing Formal Disciplinary Proceedings Before TDLR
If TDLR chooses to enforce a violation through formal disciplinary proceedings, they will issue a Notice of Alleged Violation (NOAV) against the massage therapist. The NOAV will contain a description of the conduct that constitutes the alleged violation, the rule or law that the person allegedly violated, and the potential administrative penalties and/or sanctions.
A massage therapist who admits to a violation and the proposed sanctions can enter an Agreed Order with the TDLR Executive Director. The Agreed Order typically requires the licensee to complete certain tasks, such as pay a specific administrative penalty, undergo additional training or education, or submit to periodic reporting. TDLR ensures that the licensee fulfills all conditions of the Agreed Order to resolve the case.
The massage therapist’s other option is to request an administrative hearing within 20 days of receipt. If the massage therapist neither signs an Agreed Order nor requests a hearing on time, the TDLR can enter a Default Order against them. As a result, the TDLR can find a violation and impose whatever sanctions it chooses against the individual without further notice or hearing.
However, if the individual does timely request a hearing, the TDLR will transfer the case to the State Office of Administrative Hearings (SOAH) for resolution and appoint an administrative law judge (ALJ) to the case. The ALJ will hear the case and submit a Proposal for Decision (PFD) to all parties. The PFD contains the ALJ’s findings of fact and conclusions of law. The Commission of Licensing and Regulation then reviews the PFD, hears arguments from the parties, and ultimately issues a Final Order.
TDLR Enforcement Plan and Sanctions for Massage Therapists
TDLR has established a general enforcement plan for the occupations it licenses and regulates. The governing board for each occupation has developed an individualized plan for most violations of the rules and laws that pertain to that occupation, along with ranges of potential sanctions for those violations. Potential sanctions may include:
- License suspension;
- License revocation;
- Probated license suspension; or
- Written reprimand.
Massage therapists can face four different classes of violations, whose severity and sanctions increase incrementally. The sanction ranges for each class of violation are as follows:
- Class A – Fine between $500 and $1,500
- Class B – Fine between $1,000 and $2,500 and/or up to 1-year full suspension
- Class C – Fine between $2,000 and $5,000 and/or up to license revocation
- Class D – Fine of $5,000 and/or license revocation
TDLR considers the following factors in deciding the appropriate sanction for a massage therapist that has violated a rule or law:
- The severity or seriousness of the violation.
- Whether the violation was willful or intentional.
- Whether the Respondent acted in good faith to avoid or mitigate the violation or correct it after it became apparent.
- Whether the Respondent has engaged in similar violations in the past.
- The level of penalty or sanction necessary to deter future violations.
- Any other matter that justice may require.
TDLR prosecuting attorneys typically seek sanctions against licensees listed within the enforcement plan and sanction schedule for the specific occupation. However, they can depart from the schedule in extraordinary circumstances upon the approval of the TDLR Director of Enforcement.
Defend Yourself Against Disciplinary Proceedings Involving Your Massage Therapist License
Don’t allow an isolated complaint to wreak havoc on your career. Losing your massage therapist license can be highly detrimental to your livelihood. If you are facing the loss of your massage therapist license, we can help you take the steps necessary to challenge the allegations against you in your disciplinary proceedings. Contact a massage therapist license defense attorney at Bertolino LLP, for advice today. Make an appointment by calling (512) 515-9518 or contact us online to see how we can help.