Texas 2015 - 84th Regular

Texas House Bill HB3976 Compare Versions

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1	1	By: Farrar H.B. No. 3976
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the licensing and regulation of lactation consultants;
7	7	requiring an occupational license; providing penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle M, Title 3, Occupations Code, is
10	10	amended by adding Chapter 703 to read as follows:
11	11	CHAPTER 703. LACTATION CONSULTANTS
12	12	SUBCHAPTER A. GENERAL PROVISIONS
13	13	Sec. 703.001. SHORT TITLE. This chapter may be cited as the
14	14	Texas Lactation Consultant Act.
15	15	Sec. 703.002. DEFINITIONS. In this chapter:
16	16	(1) "Board" means the lactation consultant board.
17	17	(2) "Commissioner" means the commissioner of state health
18	18	services.
19	19	(3) "Department" means the Department of State Health
20	20	Services.
21	21	(4) "Executive commissioner" means the executive
22	22	commissioner of the Health and Human Services Commission.
23	23	(5) "Lactation consultant" or "registered lactation
24	24	consultant" means a health care professional licensed under this
25	25	chapter who specializes in the clinical management of breastfeeding
26	26	and works in a variety of settings.
27	27	Sec. 703.003. FINDINGS.
28	28	(a) The legislature finds that breastfeeding a baby is an
29	29	important and basic act of nurture that must be encouraged in the
30	30	interests of maternal and child health and family values. The
31	31	legislature recognizes breastfeeding as the best method of infant
32	32	nutrition.
33	33	(b) Current levels of breastfeeding initiation and duration
34	34	in Texas fall significantly below public health targets.
35	35	Approximately 30% of women need professional help to breastfeed
36	36	successfully. Sources of professional support are limited and
37	37	difficult to locate. Qualified lactation consultants facilitate
38	38	better breastfeeding outcomes. The profession of lactation
39	39	consulting requires specialized skills. Licensing lactation
40	40	consultants will protect consumers and reduce health care costs.
41	41	Sec. 703.004. APPLICABILITY. As long as the person does not
42	42	use the titles "lactation consultant" or "registered lactation
43	43	consultant" to describe the person's activities, this chapter does
44	44	not apply to:
45	45	(1) a person licensed in this state as a physician or nurse;
46	46	(2) a health care professional licensed by the state and
47	47	operating within the scope of the person's license;
48	48	(3) a person acting as a paid or volunteer peer counselor,
49	49	La Leche League Leader, doula, or childbirth educator; or
50	50	(4) a licensed midwife.
51	51	Sec. 703.005. APPLICATION OF SUNSET ACT. The lactation
52	52	consultant board is subject to Chapter 325, Government Code (Texas
53	53	Sunset Act). Unless continued in existence as provided by that
54	54	chapter, the lactation consultant board is abolished and this
55	55	chapter expires September 1, 2025.
56	56	[Sections 703.007-703.051 reserved for expansion]
57	57	SUBCHAPTER B. LACTATION CONSULTANT BOARD
58	58	Sec. 703.051. LACTATION CONSULTANT BOARD. The commissioner
59	59	shall appoint a lactation consultant board that reports directly to
60	60	the commissioner.
61	61	Sec. 703.052. APPOINTMENT OF LACTATION CONSULTANT BOARD.
62	62	(a) The lactation consultant board consists of nine members
63	63	appointed as follows:
64	64	(1) five lactation consultant members each of whom has at
65	65	least three years' experience in the practice of lactation
66	66	consulting;
67	67	(2) one physician member who is either certified by a
68	68	national professional organization of physicians that certifies
69	69	obstetricians and gynecologists, or who is certified by a national
70	70	professional organization of physicians that certifies family
71	71	practitioners or pediatricians;
72	72	(3) one member who is a registered nurse and who practices
73	73	in obstetrics or in pediatrics or in family practice; and
74	74	(4) two members who represent the public and who are not
75	75	practicing or trained in a health care profession, one of whom is a
76	76	parent who has been assisted by a lactation consultant.
77	77	(b) Appointments to the lactation consultant board shall be
78	78	made without regard to the race, color, disability, sex, religion,
79	79	age, or national origin of the appointee.
80	80	Sec. 703.053. PUBLIC MEMBER ELIGIBILITY. A person is not
81	81	eligible for appointment as a public member of the lactation
82	82	consultant board if the person or the person's spouse:
83	83	(1) is registered, certified, or licensed by an
84	84	occupational regulatory agency in the field of lactation
85	85	consulting;
86	86	(2) is employed by or participates in the management of a
87	87	business entity or other organization regulated by the lactation
88	88	consultant board or receiving funds from the lactation consultant
89	89	board;
90	90	(3) owns or controls, directly or indirectly, more than a 10
91	91	percent interest in a business entity or other organization
92	92	regulated by or receiving funds from the lactation consultant
93	93	board; or
94	94	(4) uses or receives a substantial amount of tangible goods,
95	95	services, or funds from the lactation consultant board, other than
96	96	compensation or reimbursement authorized by law for lactation
97	97	consultant board membership, attendance, or expenses; or
98	98	(5) has any other interest, financial or otherwise, that is
99	99	adverse to the profession of lactation consulting.
100	100	Sec. 703.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)
101	101	In this section, "Texas trade association" means a cooperative and
102	102	voluntarily joined statewide association of business or
103	103	professional competitors in this state designed to assist its
104	104	members and its industry or profession in dealing with mutual
105	105	business or professional problems and in promoting their common
106	106	interest.
107	107	(b) A person may not be a lactation consultant board member,
108	108	an employee of the lactation consultant board, or a department
109	109	employee employed in a "bona fide executive, administrative, or
110	110	professional capacity," as that phrase is used for purposes of
111	111	establishing an exemption to the overtime provisions of the federal
112	112	Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if:
113	113	(1) the person is an officer, employee, or paid consultant
114	114	of a Texas trade association in the field of health care; or
115	115	(2) the person's spouse is an officer, manager, or paid
116	116	consultant of a Texas trade association in the field of health care.
117	117	(c) A person may not be a lactation consultant board member
118	118	or act as the general counsel to the lactation consultant board or
119	119	the department if the person is required to register as a lobbyist
120	120	under Chapter 305, Government Code, because of the person's
121	121	activities for compensation on behalf of a profession related to
122	122	the operation of the lactation consultant board.
123	123	Sec. 703.055. TERMS. Members of the lactation consultant
124	124	board serve for staggered terms of six years. The terms of three
125	125	members expire on January 31 of each odd-numbered year.
126	126	Sec. 703.056. OFFICERS. The commissioner shall designate a
127	127	public member of the lactation consultant board as the presiding
128	128	officer of the lactation consultant board to serve in that capacity
129	129	at the pleasure of the commissioner. The lactation consultant
130	130	board shall elect one of the other members of the lactation
131	131	consultant board as vice presiding officer.
132	132	Sec. 703.057. GROUNDS FOR REMOVAL. (a) It is a ground for
133	133	removal from the lactation consultant board that a member:
134	134	(1) does not have at the time of taking office the
135	135	qualifications required by Section 703.052;
136	136	(2) does not maintain during service on the lactation
137	137	consultant board the qualifications required by Section 703.052;
138	138	(3) is ineligible for membership under Section 703.053 or
139	139	703.054;
140	140	(4) cannot, because of illness or disability, discharge the
141	141	member's duties for a substantial part of the member's term; or
142	142	(5) is absent from more than half of the regularly scheduled
143	143	lactation consultant board meetings that the member is eligible to
144	144	attend during a calendar year without an excuse approved by a
145	145	majority vote of the lactation consultant board.
146	146	(b) The validity of an action of the lactation consultant
147	147	board is not affected by the fact that it is taken when a ground for
148	148	removal of a lactation consultant board member exists.
149	149	(c) If the program coordinator has knowledge that a
150	150	potential ground for removal exists, the program coordinator shall
151	151	notify the presiding officer of the lactation consultant board of
152	152	the potential ground. The presiding officer shall then notify the
153	153	commissioner that a potential ground for removal exists. If the
154	154	potential ground for removal involves the presiding officer, the
155	155	program coordinator shall notify the next highest ranking member of
156	156	the lactation consultant board, who shall then notify the
157	157	commissioner that a potential ground for removal exists.
158	158	Sec. 703.058. REIMBURSEMENT. A lactation consultant board
159	159	member may receive reimbursement for travel expenses as provided by
160	160	the General Appropriations Act.
161	161	Sec. 703.059. MEETINGS. (a) The lactation consultant
162	162	board shall meet at least semiannually.
163	163	(b) The lactation consultant board shall meet at other times
164	164	at the call of the lactation consultant board or the commissioner.
165	165	Sec. 703.060. TRAINING. (a) A person who is appointed to
166	166	and qualifies for office as a member of the lactation consultant
167	167	board may not vote, deliberate, or be counted as a member in
168	168	attendance at a meeting of the lactation consultant board until the
169	169	person completes a training program that complies with this
170	170	section.
171	171	(b) The training program must provide the person with
172	172	information regarding:
173	173	(1) this chapter and the programs, functions, rules, and
174	174	budget of the lactation consultant board;
175	175	(2) the results of the most recent formal audit of the
176	176	lactation consultant board;
177	177	(3) the requirements of laws relating to open meetings,
178	178	public information, administrative procedure, and conflicts of
179	179	interest; and
180	180	(4) any applicable ethics policies adopted by the lactation
181	181	consultant board or the Texas Ethics Commission.
182	182	(c) A person appointed to the lactation consultant board is
183	183	entitled to reimbursement, as provided by the General
184	184	Appropriations Act, for the travel expenses incurred in attending
185	185	the training program regardless of whether the attendance at the
186	186	program occurs before or after the person qualifies for office.
187	187	SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL
188	188	Sec. 703.101. PROGRAM COORDINATOR. The department shall,
189	189	after consultation with the lactation consultant board, employ a
190	190	coordinator for the lactation consulting program and the staff
191	191	necessary to administer the program.
192	192	Sec. 703.102. DUTIES OF PROGRAM COORDINATOR. The program
193	193	coordinator shall supervise the staff in the performance of
194	194	administrative duties, including:
195	195	(1) keeping the minutes of lactation consultant board
196	196	meetings; and
197	197	(2) maintaining:
198	198	(a) records about basic lactation consulting education
199	199	courses and continuing lactation consulting education courses;
200	200	(b) a roster of lactation consultants licensed under
201	201	Section 703.251; and
202	202	(c) a record of each person who is licensed under this
203	203	chapter.
204	204	Sec. 703.103. DIVISION OF RESPONSIBILITIES. The lactation
205	205	consultant board shall develop and implement policies that clearly
206	206	define the respective responsibilities of the lactation consultant
207	207	board and the staff of the lactation consultant board.
208	208	Sec. 703.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
209	209	(a) The program coordinator or the program coordinator's designee
210	210	shall prepare and maintain a written policy statement to ensure
211	211	implementation of an equal employment opportunity program under
212	212	which all personnel transactions are made without regard to race,
213	213	color, disability, sex, religion, age, or national origin. The
214	214	policy statement must include:
215	215	(1) personnel policies, including policies related to
216	216	recruitment, evaluation, selection, application, training, and
217	217	promotion of personnel that comply with Chapter 21, Labor Code;
218	218	(2) a comprehensive analysis of the lactation consultant
219	219	board workforce that meets federal and state guidelines;
220	220	(3) procedures by which a determination can be made of
221	221	significant underuse in the lactation consultant board workforce of
222	222	all persons for whom federal or state guidelines encourage a more
223	223	equitable balance; and
224	224	(4) reasonable methods to appropriately address those areas
225	225	of underuse.
226	226	(b) A policy statement prepared under Subsection (a) must:
227	227	(1) cover an annual period;
228	228	(2) be updated annually;
229	229	(3) be reviewed by the Commission on Human Rights for
230	230	compliance with Subsection (a)(1); and
231	231	(4) be filed with the governor.
232	232	(c) The governor shall deliver a biennial report to the
233	233	legislature based on the information received under Subsection (b).
234	234	The report may be made separately or as a part of another biennial
235	235	report made to the legislature.
236	236	SUBCHAPTER D. POWERS AND DUTIES OF LACTATION CONSULTANT BOARD,
237	237	EXECUTIVE COMMISSIONER, AND DEPARTMENT
238	238	Sec. 703.151. RULEMAKING AUTHORITY OF LACTATION CONSULTANT
239	239	BOARD. (a) Subject to the approval of the executive commissioner,
240	240	the lactation consultant board shall:
241	241	(1) adopt substantive and procedural rules necessary for
242	242	the licensing of lactation consultants;
243	243	(2) adopt rules prescribing the standards for the practice
244	244	of lactation consulting in this state. The standards must be
245	245	equivalent to established national standards such as those set by
246	246	the International Board of Lactation Consultant Examiners (IBCLE)
247	247	for an International Board Certified Lactation Consultant (IBCLC).
248	248	The standards must include ethical requirements.
249	249	(3) The rules must prescribe:
250	250	(a) the type of courses and number of hours required to meet
251	251	the basic lactation consulting education course and continuing
252	252	lactation consulting education course requirements; and
253	253	(b) minimum standards for the approval and revocation of
254	254	approval of:
255	255	(i) basic lactation consulting education courses and
256	256	continuing lactation consulting education courses; and
257	257	(ii) instructors or facilities used in basic lactation
258	258	consulting education courses and continuing lactation consulting
259	259	education courses;
260	260	(4) adopt rules requiring lactation consultants to require
261	261	patients to sign a release advising the patient that lactation
262	262	consultation is not a substitute for conventional medical care by a
263	263	physician, which includes diagnosis, treatment, and well child
264	264	care;
265	265	(5) adopt rules prescribing a procedure for reporting and
266	266	processing complaints relating to the practice of lactation
267	267	consulting in this state;
268	268	(6) adopt and implement substantive and procedural rules as
269	269	necessary to discipline lactation consultants determined to be in
270	270	violation of this chapter or otherwise a threat to the public health
271	271	and safety;
272	272	(7) adopt rules as necessary to establish eligibility for
273	273	reciprocity for initial licensing under this chapter; and
274	274	(8) adopt other rules necessary to implement a duty imposed
275	275	on the executive commissioner or the department under this chapter.
276	276	(b) The rules adopted under Subsection (a)(5) must include
277	277	rules relating to:
278	278	(1) warnings provided to lactation consultants for a
279	279	violation of this chapter or rules adopted under this chapter;
280	280	(2) agreed orders for additional education by lactation
281	281	consultants;
282	282	(3) recommendations or requirements for medical or
283	283	psychological treatment, including treatment related to substance
284	284	abuse by a lactation consultant; and
285	285	(4) restrictions on the practice of a lactation consultant,
286	286	including practice limitations and the suspension and revocation of
287	287	a license, and placement of a lactation consultant on probation.
288	288	Sec. 703.152. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION.
289	289	(a) Subject to the approval of the executive commissioner, the
290	290	lactation consultant board shall adopt rules necessary to comply
291	291	with Chapter 53.
292	292	(b) In its proposed rules under this section, the lactation
293	293	consultant board shall list the specific offenses for which a
294	294	conviction would constitute grounds for the lactation consultant
295	295	board to take action under Section 53.021.
296	296	Sec. 703.153. FEES. Subject to the approval of the
297	297	executive commissioner, the lactation consultant board by rule
298	298	shall establish reasonable and necessary fees that, in the
299	299	aggregate, produce sufficient revenue to cover the costs of
300	300	administering this chapter.
301	301	Sec. 703.154. ANNUAL REPORT; REPORTS ON LACTATION
302	302	CONSULTING. (a) The lactation consultant board shall prepare and
303	303	publish reports on the practice of lactation consulting in this
304	304	state, including statistical reporting of breastfeeding initiation
305	305	and continuation rates.
306	306	Sec. 703.155. COMPLAINT PROCEDURE AND INVESTIGATION. (a)
307	307	The lactation consultant board shall adopt rules concerning the
308	308	investigation of a complaint filed with the lactation consultant
309	309	board.
310	310	(b) The rules adopted under Subsection (a) must:
311	311	(1) distinguish among categories of complaints;
312	312	(2) ensure that a person who files a complaint has an
313	313	opportunity to explain the allegations made in the complaint; and
314	314	(3) provide for the release of any relevant lactation
315	315	consulting or medical record to the lactation consultant board,
316	316	without the necessity of consent by the lactation consultant's
317	317	patient, as necessary to conduct an investigation of a complaint.
318	318	(c) The lactation consultant board by rule shall:
319	319	(1) adopt a form to standardize information concerning
320	320	complaints made to the lactation consultant board; and
321	321	(2) prescribe information to be provided to a person when
322	322	the person files a complaint with the lactation consultant board.
323	323	(d) The lactation consultant board shall provide reasonable
324	324	assistance to a person who wishes to file a complaint with the
325	325	lactation consultant board.
326	326	Sec. 703.156. DUTIES OF LACTATION CONSULTANT BOARD AND
327	327	DEPARTMENT. (a) The department, with the recommendation of the
328	328	lactation consultant board, shall:
329	329	(1) implement rules governing:
330	330	(a) basic lactation consulting education courses and
331	331	continuing lactation consulting education courses; and
332	332	(b) approval of instructors or facilities used in offering
333	333	basic lactation consulting education courses and continuing
334	334	lactation consulting education courses;
335	335	(2) adopt and provide information about basic lactation
336	336	consulting resources and instructor manuals; and
337	337	(3) enter into agreements necessary to carry out this
338	338	chapter.
339	339	(c) The department shall:
340	340	(1) establish a program for licensure as a lactation
341	341	consultant as prescribed by lactation consultant board rules;
342	342	(2) pay the salaries of the program coordinator and any
343	343	additional staff the department determines to be necessary; and
344	344	(3) provide office space and supplies for the program
345	345	coordinator and other staff.
346	346	Sec. 703.157. ROSTER; NOTICE TO COUNTY OFFICIALS. (a) The
347	347	department shall maintain a roster of each person licensed as a
348	348	lactation consultant in this state.
349	349	(b) The roster shall contain for each person the information
350	350	required on the licensure form under this chapter and other
351	351	information the department determines necessary to accurately
352	352	identify each licensed lactation consultant. The information is
353	353	public information as defined by Chapter 552, Government Code.
354	354	Sec. 703.158. RULES RESTRICTING ADVERTISING OR COMPETITIVE
355	355	BIDDING. (a) The lactation consultant board may not propose rules
356	356	restricting advertising or competitive bidding by a licensed
357	357	lactation consultant except to prohibit false, misleading, or
358	358	deceptive practices.
359	359	(b) The lactation consultant board may not include in its
360	360	proposed rules to prohibit false, misleading, or deceptive
361	361	practices by a licensed lactation consultant a rule that:
362	362	(1) restricts the lactation consultant's use of any
363	363	advertising medium;
364	364	(2) restricts the lactation consultant's personal
365	365	appearance or use of the lactation consultant's voice in an
366	366	advertisement;
367	367	(3) relates to the size or duration of an advertisement by
368	368	the lactation consultant; or
369	369	(4) restricts the lactation consultant's advertisement
370	370	under a trade name.
371	371	Sec. 703.159. BOARD COMMITTEES. (a) The lactation
372	372	consultant board may appoint committees to assist the lactation
373	373	consultant board with its functions under this chapter.
374	374	(b) Only a member of the lactation consultant board may
375	375	serve as a member of a lactation consultant board committee.
376	376	Sec. 703.160. USE OF TECHNOLOGY. Subject to the approval of
377	377	the executive commissioner, the lactation consultant board shall
378	378	implement a policy requiring the lactation consultant board to use
379	379	appropriate technological solutions to improve the lactation
380	380	consultant board's ability to perform its functions. The policy
381	381	must ensure that the public is able to interact with the lactation
382	382	consultant board on the Internet.
383	383	Sec. 703.161. NEGOTIATED RULEMAKING AND ALTERNATIVE
384	384	DISPUTE RESOLUTION POLICY. (a) Subject to the approval of the
385	385	executive commissioner, the lactation consultant board shall
386	386	develop and implement a policy to encourage the use of:
387	387	(1) negotiated rulemaking procedures under Chapter 2008,
388	388	Government Code, for the adoption of lactation consultant board
389	389	rules; and
390	390	(2) appropriate alternative dispute resolution procedures
391	391	under Chapter 2009, Government Code, to assist in the resolution of
392	392	internal and external disputes under the lactation consultant
393	393	board's jurisdiction.
394	394	(b) The lactation consultant board's procedures relating to
395	395	alternative dispute resolution must conform, to the extent
396	396	possible, to any model guidelines issued by the State Office of
397	397	Administrative Hearings for the use of alternative dispute
398	398	resolution by state agencies.
399	399	(c) The department shall designate a trained person to:
400	400	(1) coordinate the implementation of the policy adopted
401	401	under Subsection (a);
402	402	(2) serve as a resource for any training needed to implement
403	403	the procedures for negotiated rulemaking or alternative dispute
404	404	resolution; and
405	405	(3) collect data concerning the effectiveness of those
406	406	procedures, as implemented by the lactation consultant board.
407	407	SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
408	408	Sec. 703.201. PUBLIC INTEREST INFORMATION. (a) The
409	409	lactation consultant board shall prepare information of public
410	410	interest describing the functions of the lactation consultant board
411	411	and the procedures by which complaints are filed with and resolved
412	412	by the lactation consultant board.
413	413	(b) The lactation consultant board shall make the
414	414	information available to the public and appropriate state agencies.
415	415	Sec. 703.202. COMPLAINTS. (a) The lactation consultant
416	416	board by rule shall establish methods by which consumers and
417	417	service recipients are notified of the name, mailing address, and
418	418	telephone number of the lactation consultant board for the purpose
419	419	of directing complaints to the lactation consultant board. The
420	420	lactation consultant board may provide for that notice:
421	421	(1) on each registration form, application, or disclosure
422	422	and informed consent form of a person regulated by the lactation
423	423	consultant board;
424	424	(2) on a sign prominently displayed in the place of business
425	425	of each person regulated by the lactation consultant board; or
426	426	(3) in a bill for service provided by a person regulated by
427	427	the lactation consultant board.
428	428	(b) The lactation consultant board shall list with its
429	429	regular telephone number the toll-free telephone number
430	430	established under other state law that may be called to present a
431	431	complaint about a health professional.
432	432	(c) The lactation consultant board shall maintain a system
433	433	to promptly and efficiently act on complaints filed with the
434	434	lactation consultant board. The lactation consultant board shall
435	435	maintain:
436	436	(1) information about the parties to the complaint and the
437	437	subject matter of the complaint;
438	438	(2) a summary of the results of the review or investigation
439	439	of the complaint; and
440	440	(3) information about the disposition of the complaint.
441	441	(d) The lactation consultant board shall make information
442	442	available describing its procedures for complaint investigation
443	443	and resolution.
444	444	(e) The lactation consultant board shall periodically
445	445	notify the parties of the status of the complaint until final
446	446	disposition of the complaint.
447	447	Sec. 703.203. COMPLAINT COMMITTEE. The lactation
448	448	consultant board shall appoint at least one public member of the
449	449	lactation consultant board to any lactation consultant board
450	450	committee established to review a complaint filed with the
451	451	lactation consultant board or review an enforcement action against
452	452	a lactation consultant related to a complaint filed with the
453	453	lactation consultant board.
454	454	Sec. 703.204. PUBLIC PARTICIPATION. (a) The lactation
455	455	consultant board shall develop and implement policies that provide
456	456	the public with a reasonable opportunity to appear before the
457	457	lactation consultant board and to speak on any issue under the
458	458	lactation consultant board's jurisdiction.
459	459	(b) The lactation consultant board shall prepare and
460	460	maintain a written plan that describes how a person who does not
461	461	speak English can be provided reasonable access to the lactation
462	462	consultant board's programs.
463	463	SUBCHAPTER F. LICENSURE REQUIREMENTS
464	464	Sec. 703.251. LICENSE REQUIRED. (a) A person may not
465	465	practice lactation consulting unless the person holds a license
466	466	issued under this chapter.
467	467	(b) The department shall provide a license to each person
468	468	who fulfills the licensing requirements.
469	469	(c) Unless the person is licensed under this chapter, a
470	470	person may not use:
471	471	(1) the title lactation consultant;
472	472	(2) the title registered lactation consultant;
473	473	(3) the letters LC;
474	474	(4) the letters RLC; or
475	475	(5) any other words, letters, abbreviations, or insignia
476	476	indicating or implying, by any means or in any way, that the person
477	477	is a licensed lactation consultant.
478	478	Sec. 703.252. QUALIFICATIONS FOR INITIAL LICENSE. (a) A
479	479	person qualifies to become a licensed lactation consultant under
480	480	this chapter if the person provides the program coordinator with
481	481	documentary evidence that the person has:
482	482	(1) satisfied each requirement for basic lactation
483	483	consulting education; and
484	484	(2) passed the comprehensive lactation consulting
485	485	examination and jurisprudence examination required by this
486	486	chapter.
487	487	(b) The initial license must be issued before the lactation
488	488	consultant begins to practice lactation consulting and may be
489	489	issued at any time during the year.
490	490	(c) The term of the initial license begins on the date the
491	491	requirements are met and extends through December 31 of the year in
492	492	which the initial license is issued.
493	493	Sec. 703.253. LICENSE APPLICATION. A person who practices
494	494	lactation consulting must apply to the department to be licensed as
495	495	a lactation consultant. The application must:
496	496	(1) be accompanied by a nonrefundable application fee; and
497	497	(2) include information required by lactation consultant
498	498	board rules.
499	499	Sec. 703.254. BASIC LACTATION CONSULTING EDUCATION.
500	500	Subject to the approval of the executive commissioner, the
501	501	lactation consultant board shall establish requirements for basic
502	502	lactation consulting education.
503	503	Sec. 703.255. EXAMINATION. (a) The lactation consultant
504	504	board, with the approval of the executive commissioner, shall:
505	505	(1) adopt standards for a comprehensive lactation
506	506	consulting examination for persons regulated under this chapter
507	507	that must be passed before the initial license may be issued; and
508	508	(2) establish eligibility requirements for persons taking a
509	509	comprehensive lactation consulting examination.
510	510	(b) The board may employ and cooperate with an organization
511	511	or consultant in preparing an appropriate examination.
512	512	(c) An independent testing professional must validate any
513	513	written examination prepared or offered by the board, including a
514	514	standardized national examination.
515	515	(d) Instead of creating its own examination, the board may
516	516	accept the results of a criterion-referenced, standardized
517	517	national examination by an independent lactation consultant
518	518	organization--such as the IBCLE--that meets the standards set by
519	519	the board.
520	520	Sec. 703.256. JURISPRUDENCE EXAMINATION. (a) The
521	521	lactation consultant board shall develop a jurisprudence
522	522	examination to determine an applicant's knowledge of this chapter,
523	523	lactation consultant board rules, and any other applicable laws of
524	524	this state affecting the applicant's lactation consulting
525	525	practice. A person applying for an initial or renewal license must
526	526	take the examination. The lactation consultant board shall
527	527	administer the examination at least twice each calendar year.
528	528	(b) Subject to the approval of the executive commissioner,
529	529	the lactation consultant board shall adopt rules to implement this
530	530	section, including rules related to the development and
531	531	administration of the examination, examination fees, guidelines
532	532	for reexamination, grading the examination, and providing notice of
533	533	examination results.
534	534	Sec. 703.257. EXAMINATION RESULTS. (a) The lactation
535	535	consultant board shall notify each examinee of the examination
536	536	results not later than the 30th day after the date on which the
537	537	examination is administered. If an examination is conducted,
538	538	graded or reviewed by a national testing service or independent
539	539	lactation consultant organization, the lactation consultant board
540	540	must notify each examinee of the examination results not later than
541	541	the 14th day after the date the lactation consultant board receives
542	542	the results from the testing service.
543	543	(b) If the notice of the examination results graded or
544	544	reviewed by a national testing service or independent lactation
545	545	consultant organization will be delayed for more than 90 days after
546	546	the examination date, the lactation consultant board must notify
547	547	the examinee of the reason for the delay before the 90th day.
548	548	(c) The lactation consultant board may require a testing
549	549	service to notify an examinee of the examination results.
550	550	SUBCHAPTER G. LICENSE RENEWAL
551	551	Sec. 703.301. APPLICATION FOR LICENSE RENEWAL. An
552	552	applicant for renewal of a license under this chapter must apply
553	553	biennially as provided in Section 703.253.
554	554	Sec. 703.302. PROCEDURE FOR RENEWAL. (a) A licensed
555	555	lactation consultant is responsible for renewing a license before
556	556	the expiration date of the license. A person whose license has
557	557	expired may not engage in activities that require a license until
558	558	the license has been renewed.
559	559	(b) A person may renew an unexpired license by paying the
560	560	required renewal fee to the lactation consultant board before the
561	561	expiration date of the license.
562	562	(c) A person whose license has been expired for 90 days or
563	563	less may renew the license by paying to the lactation consultant
564	564	board a fee that is equal to 1-1/4 times the amount of the renewal
565	565	fee.
566	566	(d) If a person's license has been expired for more than 90
567	567	days but less than one year, the person may renew the license by
568	568	paying to the lactation consultant board a fee that is equal to
569	569	1-1/2 times the amount of the renewal fee.
570	570	(e) A person whose license has been expired for one year or
571	571	more may not renew the license. The person may obtain a new license
572	572	by submitting to reexamination and complying with the requirements
573	573	and procedures for obtaining an initial license.
574	574	(f) Not later than the 30th day before the date a person's
575	575	license is scheduled to expire, the lactation consultant board
576	576	shall send written notice of the impending expiration to the person
577	577	at the person's last known address according to the records of the
578	578	lactation consultant board.
579	579	Sec. 703.303. STAGGERED RENEWAL DATES. (a) The lactation
580	580	consultant board by rule may adopt a system under which licenses
581	581	expire on various dates during the year.
582	582	(b) For the year in which the license expiration date is
583	583	changed, license fees payable on the original expiration date shall
584	584	be prorated on a monthly basis so that each licensed lactation
585	585	consultant pays only that portion of the license fee that is
586	586	allocable to the number of months during which the license is valid.
587	587	(c) On renewal of the license on the new expiration date,
588	588	the total license renewal fee is payable.
589	589	Sec. 703.304. CONTINUING LACTATION CONSULTING EDUCATION.
590	590	(a) Subject to the approval of the executive commissioner, the
591	591	lactation consultant board shall establish requirements for
592	592	continuing lactation consulting education, including a minimum
593	593	number of hours of continuing education required to renew a license
594	594	under this chapter.
595	595	(b) On renewal of the license, a lactation consultant must
596	596	provide the program coordinator with evidence, acceptable under
597	597	lactation consultant board rules, of completion of continuing
598	598	lactation consulting education as prescribed by the lactation
599	599	consultant board.
600	600	(c) The lactation consultant board by rule shall develop a
601	601	process to evaluate and approve continuing education courses.
602	602	Sec. 703.305. REQUIRED ATTENDANCE AT SPECIFIC LACTATION
603	603	CONSULTING EDUCATION COURSES. The lactation consultant board may
604	604	assess the continuing education needs of licensed lactation
605	605	consultants and may require licensed lactation consultants to
606	606	attend continuing lactation consulting education courses specified
607	607	by the lactation consultant board.
608	608	Sec. 703.306. GROUNDS FOR REFUSING RENEWAL. The lactation
609	609	consultant board may refuse to renew the license of a person who
610	610	fails to pay an administrative penalty imposed under Subchapter J,
611	611	unless enforcement of the penalty is stayed or a court has ordered
612	612	that the administrative penalty is not owed.
613	613	SUBCHAPTER H. PROHIBITED PRACTICES AND GROUNDS FOR DISCIPLINARY
614	614	ACTION
615	615	Sec. 703.351. GROUNDS FOR DISCIPLINARY ACTION. (a) The
616	616	lactation consultant board may discipline a licensed lactation
617	617	consultant, refuse to renew a lactation consultant's license, or
618	618	refuse to issue a license to an applicant if the person:
619	619	(1) violates this chapter or a rule adopted under this
620	620	chapter;
621	621	(2) submits false or misleading information to the
622	622	lactation consultant board or the department;
623	623	(3) is convicted of a misdemeanor involving moral turpitude
624	624	or a felony;
625	625	(4) uses alcohol or drugs intemperately;
626	626	(5) engages in unprofessional or dishonorable conduct that
627	627	may reasonably be determined to deceive or defraud the public;
628	628	(6) is unable to practice lactation consulting with
629	629	reasonable skill and safety because of illness, disability, or
630	630	psychological impairment;
631	631	(7) is determined by a court judgment to be mentally
632	632	impaired; or
633	633	(8) fails to practice lactation consulting in a manner
634	634	consistent with the public health and safety.
635	635	(b) The lactation consultant board may discipline a
636	636	licensed lactation consultant and may refuse to issue a license to
637	637	an applicant for a disciplinary action taken by another
638	638	jurisdiction that affects the person's authority to practice
639	639	lactation consulting, including a suspension, a revocation, or
640	640	another action.
641	641	Sec. 703.352. EMERGENCY SUSPENSION. (a) The lactation
642	642	consultant board or a three-member committee of lactation
643	643	consultant board members designated by the lactation consultant
644	644	board shall temporarily suspend the license of a licensed lactation
645	645	consultant if the lactation consultant board or committee
646	646	determines from the evidence or information presented to it that
647	647	continued practice by the licensed lactation consultant would
648	648	constitute a continuing and imminent threat to the public welfare.
649	649	(b) A license may be suspended under this section without
650	650	notice or hearing on the complaint if:
651	651	(1) action is taken to initiate proceedings for a hearing
652	652	before the State Office of Administrative Hearings simultaneously
653	653	with the temporary suspension; and
654	654	(2) a hearing is held as soon as practicable under this
655	655	chapter and Chapter 2001, Government Code.
656	656	(c) The State Office of Administrative Hearings shall hold a
657	657	preliminary hearing not later than the 14th day after the date of
658	658	the temporary suspension to determine if there is probable cause to
659	659	believe that a continuing and imminent threat to the public welfare
660	660	still exists. A final hearing on the matter shall be held not later
661	661	than the 61st day after the date of the temporary suspension.
662	662	Sec. 703.353. REFUND. (a) Subject to Subsection (b), the
663	663	lactation consultant board may order a licensed lactation
664	664	consultant to pay a refund to a consumer as provided in an agreement
665	665	resulting from an informal settlement conference instead of or in
666	666	addition to imposing an administrative penalty under this chapter.
667	667	(b) The amount of a refund ordered as provided in an
668	668	agreement resulting from an informal settlement conference may not
669	669	exceed the amount the consumer paid to the licensed lactation
670	670	consultant for a service regulated by this chapter. The lactation
671	671	consultant board may not require payment of other damages or
672	672	estimate harm in a refund order.
673	673	SUBCHAPTER I. ADMINISTRATIVE PENALTY
674	674	Sec. 703.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
675	675	lactation consultant board may impose an administrative penalty on
676	676	a person who violates this chapter or a rule adopted under this
677	677	chapter.
678	678	Sec. 703.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
679	679	amount of the administrative penalty may not exceed $1,000 for each
680	680	violation. Each day a violation continues is a separate violation.
681	681	(b) The amount shall be based on:
682	682	(1) the seriousness of the violation;
683	683	(2) the history of previous violations;
684	684	(3) the amount necessary to deter a future violation;
685	685	(4) efforts made to correct the violation; and
686	686	(5) any other matter that justice may require.
687	687	Sec. 703.403. NOTICE OF VIOLATION AND PENALTY. (a) If,
688	688	after investigation of a possible violation and the facts
689	689	surrounding that possible violation, the lactation consultant
690	690	board or its designee determines that a violation has occurred, the
691	691	lactation consultant board or its designee shall give written
692	692	notice of the violation to the person alleged to have committed the
693	693	violation.
694	694	(b) The notice must:
695	695	(1) include a brief summary of the alleged violation;
696	696	(2) state the amount of the proposed administrative
697	697	penalty; and
698	698	(3) inform the person of the person's right to a hearing on
699	699	the occurrence of the violation, the amount of the penalty, or both.
700	700	Sec. 703.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
701	701	Not later than the 20th day after the date the person receives the
702	702	notice under Section 703.453, the person may:
703	703	(1) accept the lactation consultant board or its designee's
704	704	determination and the proposed administrative penalty; or
705	705	(2) make a written request for a hearing on that
706	706	determination.
707	707	(b) If the person accepts the lactation consultant board or
708	708	its designee's determination, the lactation consultant board by
709	709	order shall approve the determination and require the person to pay
710	710	the proposed penalty.
711	711	Sec. 703.405. HEARING. (a) If the person timely requests a
712	712	hearing, the lactation consultant board or its designee shall set a
713	713	hearing and give written notice of the hearing to the person. The
714	714	lactation consultant board or its designee may employ a hearings
715	715	examiner for this purpose.
716	716	(b) The hearings examiner shall make findings of fact and
717	717	conclusions of law and promptly issue to the lactation consultant
718	718	board a proposal for decision as to the occurrence of the violation
719	719	and the amount of the proposed administrative penalty.
720	720	Sec. 703.406. DECISION BY LACTATION CONSULTANT BOARD. (a)
721	721	Based on the findings of fact, conclusions of law, and proposal for
722	722	decision, the lactation consultant board by order may determine
723	723	that:
724	724	(1) a violation has occurred and impose an administrative
725	725	penalty; or
726	726	(2) a violation did not occur.
727	727	(b) The lactation consultant board shall give notice of the
728	728	lactation consultant board's order to the person. The notice must
729	729	include:
730	730	(1) separate statements of the findings of fact and
731	731	conclusions of law;
732	732	(2) the amount of any penalty assessed; and
733	733	(3) a statement of the right of the person to judicial
734	734	review of the lactation consultant board's order.
735	735	Sec. 703.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
736	736	(a) Not later than the 30th day after the date the lactation
737	737	consultant board's order becomes final, the person shall:
738	738	(1) pay the administrative penalty;
739	739	(2) pay the penalty and file a petition for judicial review
740	740	contesting the fact of the violation, the amount of the penalty, or
741	741	both; or
742	742	(3) without paying the penalty, file a petition for judicial
743	743	review contesting the fact of the violation, the amount of the
744	744	penalty, or both.
745	745	(b) Within the 30-day period, a person who acts under
746	746	Subsection (a)(3) may:
747	747	(1) stay enforcement of the penalty by:
748	748	(a) paying the penalty to the court for placement in an
749	749	escrow account; or
750	750	(b) giving to the court a supersedeas bond that is approved
751	751	by the court and that:
752	752	(i) is for the amount of the penalty; and
753	753	(ii) is effective until judicial review of the order is
754	754	final; or
755	755	(2) request the court to stay enforcement of the penalty by:
756	756	(a) filing with the court a sworn affidavit of the person
757	757	stating that the person is financially unable to pay the amount of
758	758	the penalty and is financially unable to give the supersedeas bond;
759	759	and
760	760	(b) giving a copy of the affidavit to the lactation
761	761	consultant board by certified mail.
762	762	(c) If the lactation consultant board receives a copy of an
763	763	affidavit under Subsection (b)(2), the lactation consultant board
764	764	may file with the court a contest to the affidavit not later than
765	765	the fifth day after the date the copy is received.
766	766	(d) The court shall hold a hearing on the facts alleged in
767	767	the affidavit as soon as practicable and shall stay the enforcement
768	768	of the penalty on finding that the alleged facts are true. The
769	769	person who files an affidavit has the burden of proving that the
770	770	person is financially unable to pay the penalty and to give a
771	771	supersedeas bond.
772	772	Sec. 703.408. COLLECTION OF PENALTY. (a) If the person on
773	773	whom the administrative penalty is imposed does not comply with
774	774	Section 703.457, the penalty may be collected.
775	775	(b) The lactation consultant board may assess reasonable
776	776	expenses and costs against a person in an administrative hearing
777	777	if, as a result of the hearing, an administrative penalty is
778	778	assessed against the person. The person shall pay expenses and
779	779	costs assessed under this subsection not later than the 30th day
780	780	after the date the order of the lactation consultant board
781	781	requiring the payment of expenses and costs is final. The lactation
782	782	consultant board may refer the matter to the attorney general for
783	783	collection of the expenses and costs.
784	784	(c) If the attorney general brings an action against a
785	785	person to enforce an administrative penalty assessed under this
786	786	chapter and the person is found liable for an administrative
787	787	penalty, the attorney general may recover, on behalf of the
788	788	attorney general, the lactation consultant board, and the
789	789	department, reasonable expenses and costs.
790	790	(d) In this section, reasonable expenses and costs includes
791	791	expenses incurred by the department, the lactation consultant
792	792	board, and the attorney general in the investigation, initiation,
793	793	or prosecution of an action, including reasonable investigative
794	794	costs, court costs, attorney's fees, witness fees, and deposition
795	795	expenses.
796	796	(e) Costs and expenses collected under this section shall be
797	797	deposited in the state treasury to the credit of a special account
798	798	that may be appropriated only to the department. Section 403.095,
799	799	Government Code, does not apply to the account.
800	800	Sec. 703.409. DETERMINATION BY COURT. (a) If a court
801	801	sustains the determination that a violation occurred, the court may
802	802	uphold or reduce the amount of the administrative penalty and order
803	803	the person to pay the full or reduced penalty.
804	804	(b) If the court does not sustain the determination that a
805	805	violation occurred, the court shall order that a penalty is not
806	806	owed.
807	807	Sec. 703.410. REMITTANCE OF PENALTY AND INTEREST. (a) If,
808	808	after judicial review, the administrative penalty is reduced or not
809	809	imposed by the court, the court shall:
810	810	(1) order the lactation consultant board to remit to the
811	811	person the appropriate amount, plus accrued interest, if the person
812	812	paid the penalty; or
813	813	(2) order the release of the bond in full if the penalty is
814	814	not imposed or order the release of the bond after the person pays
815	815	the penalty imposed if the person posted a supersedeas bond.
816	816	(b) The interest paid under Subsection (a)(1) is accrued at
817	817	the rate charged on loans to depository institutions by the New York
818	818	Federal Reserve Bank. The interest shall be paid for the period
819	819	beginning on the date the penalty is paid and ending on the date the
820	820	penalty is remitted.
821	821	Sec. 703.411. ADMINISTRATIVE PROCEDURE. A proceeding under
822	822	this subchapter to impose an administrative penalty is subject to
823	823	Chapter 2001, Government Code.
824	824	SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
825	825	Sec. 703.451. CIVIL PENALTY. (a) A person is liable for a
826	826	civil penalty if the person is required to be licensed under this
827	827	chapter and the person knowingly or intentionally practices
828	828	lactation consulting:
829	829	(1) without a license or while the license is suspended or
830	830	revoked; or
831	831	(2) in violation of a lactation consultant board order.
832	832	(b) A civil penalty under this section may not exceed $250
833	833	for each violation. Each day of violation may constitute a separate
834	834	violation for purposes of penalty assessment. In determining the
835	835	amount of the penalty, the court shall consider:
836	836	(1) the person's history of previous violations;
837	837	(2) the seriousness of the violation;
838	838	(3) any hazard to the health and safety of the public; and
839	839	(4) the demonstrated good faith of the person charged.
840	840	Sec. 703.452. INJUNCTIONS. (a) In this section, "health
841	841	authority" means a physician who administers state and local laws
842	842	regulating public health under Chapter 121, Health and Safety Code.
843	843	(b) If the commissioner or a health authority determines
844	844	that a person has violated this chapter and that the violation
845	845	creates an immediate threat to the health and safety of the public,
846	846	the commissioner or the health authority, with the concurrence of
847	847	the commissioner, may request the attorney general or a district,
848	848	county, or city attorney to bring an action in a district court for
849	849	a restraining order to restrain the violation.
850	850	(c) If a person has violated this chapter, the commissioner
851	851	or a health authority, with the concurrence of the commissioner,
852	852	may bring an action in a district court for an injunction to
853	853	prohibit the person from continuing the violation.
854	854	Sec. 703.453. VENUE. (a) Venue for a civil action brought
855	855	under Section 703.451 or 703.452 is in the county in which the
856	856	defendant resides or in the county in which the violation occurred.
857	857	(b) Venue for the civil action may be changed only after a
858	858	good faith effort has been made to address the violation in the
859	859	county in which venue is proper.
860	860	Sec. 703.454. CRIMINAL PENALTY. (a) A person commits an
861	861	offense if the person is required to be licensed under this chapter
862	862	and the person knowingly practices lactation consulting without a
863	863	license.
864	864	(b) An offense under this section is a Class C misdemeanor.
865	865	Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
866	866	Amended by:
867	867	Sec. 703.455. CEASE AND DESIST ORDER. (a) If it appears to
868	868	the lactation consultant board that a person who is not licensed
869	869	under this chapter is violating this chapter, a rule adopted under
870	870	this chapter, or another state statute or rule relating to the
871	871	practice of lactation consulting, the lactation consultant board
872	872	after notice and opportunity for a hearing may issue a cease and
873	873	desist order prohibiting the person from engaging in the activity.
874	874	(b) A violation of an order under this section constitutes
875	875	grounds for imposing an administrative penalty under Subchapter J.
876	876	SECTION 2. (a) Except as provided by Subsection (b) of this
877	877	section, this Act takes effect September 1, 2015.
878	878	(b) Subsection 703.251(a) and (c)(License Required) take
879	879	effect September 1, 2016.