By: Farrar H.B. No. 3976
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of lactation consultants;
requiring an occupational license; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle M, Title 3, Occupations Code, is
amended by adding Chapter 703 to read as follows:
CHAPTER 703. LACTATION CONSULTANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 703.001. SHORT TITLE. This chapter may be cited as the
Texas Lactation Consultant Act.
Sec. 703.002. DEFINITIONS. In this chapter:
(1) "Board" means the lactation consultant board.
(2) "Commissioner" means the commissioner of state health
services.
(3) "Department" means the Department of State Health
Services.
(4) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(5) "Lactation consultant" or "registered lactation
consultant" means a health care professional licensed under this
chapter who specializes in the clinical management of breastfeeding
and works in a variety of settings.
Sec. 703.003. FINDINGS.
(a) The legislature finds that breastfeeding a baby is an
important and basic act of nurture that must be encouraged in the
interests of maternal and child health and family values. The
legislature recognizes breastfeeding as the best method of infant
nutrition.
(b) Current levels of breastfeeding initiation and duration
in Texas fall significantly below public health targets.
Approximately 30% of women need professional help to breastfeed
successfully. Sources of professional support are limited and
difficult to locate. Qualified lactation consultants facilitate
better breastfeeding outcomes. The profession of lactation
consulting requires specialized skills. Licensing lactation
consultants will protect consumers and reduce health care costs.
Sec. 703.004. APPLICABILITY. As long as the person does not
use the titles "lactation consultant" or "registered lactation
consultant" to describe the person's activities, this chapter does
not apply to:
(1) a person licensed in this state as a physician or nurse;
(2) a health care professional licensed by the state and
operating within the scope of the person's license;
(3) a person acting as a paid or volunteer peer counselor,
La Leche League Leader, doula, or childbirth educator; or
(4) a licensed midwife.
Sec. 703.005. APPLICATION OF SUNSET ACT. The lactation
consultant board is subject to Chapter 325, Government Code (Texas
Sunset Act). Unless continued in existence as provided by that
chapter, the lactation consultant board is abolished and this
chapter expires September 1, 2025.
[Sections 703.007-703.051 reserved for expansion]
SUBCHAPTER B. LACTATION CONSULTANT BOARD
Sec. 703.051. LACTATION CONSULTANT BOARD. The commissioner
shall appoint a lactation consultant board that reports directly to
the commissioner.
Sec. 703.052. APPOINTMENT OF LACTATION CONSULTANT BOARD.
(a) The lactation consultant board consists of nine members
appointed as follows:
(1) five lactation consultant members each of whom has at
least three years' experience in the practice of lactation
consulting;
(2) one physician member who is either certified by a
national professional organization of physicians that certifies
obstetricians and gynecologists, or who is certified by a national
professional organization of physicians that certifies family
practitioners or pediatricians;
(3) one member who is a registered nurse and who practices
in obstetrics or in pediatrics or in family practice; and
(4) two members who represent the public and who are not
practicing or trained in a health care profession, one of whom is a
parent who has been assisted by a lactation consultant.
(b) Appointments to the lactation consultant board shall be
made without regard to the race, color, disability, sex, religion,
age, or national origin of the appointee.
Sec. 703.053. PUBLIC MEMBER ELIGIBILITY. A person is not
eligible for appointment as a public member of the lactation
consultant board if the person or the person's spouse:
(1) is registered, certified, or licensed by an
occupational regulatory agency in the field of lactation
consulting;
(2) is employed by or participates in the management of a
business entity or other organization regulated by the lactation
consultant board or receiving funds from the lactation consultant
board;
(3) owns or controls, directly or indirectly, more than a 10
percent interest in a business entity or other organization
regulated by or receiving funds from the lactation consultant
board; or
(4) uses or receives a substantial amount of tangible goods,
services, or funds from the lactation consultant board, other than
compensation or reimbursement authorized by law for lactation
consultant board membership, attendance, or expenses; or
(5) has any other interest, financial or otherwise, that is
adverse to the profession of lactation consulting.
Sec. 703.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)
In this section, "Texas trade association" means a cooperative and
voluntarily joined statewide association of business or
professional competitors in this state designed to assist its
members and its industry or profession in dealing with mutual
business or professional problems and in promoting their common
interest.
(b) A person may not be a lactation consultant board member,
an employee of the lactation consultant board, or a department
employee employed in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of
establishing an exemption to the overtime provisions of the federal
Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if:
(1) the person is an officer, employee, or paid consultant
of a Texas trade association in the field of health care; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of health care.
(c) A person may not be a lactation consultant board member
or act as the general counsel to the lactation consultant board or
the department if the person is required to register as a lobbyist
under Chapter 305, Government Code, because of the person's
activities for compensation on behalf of a profession related to
the operation of the lactation consultant board.
Sec. 703.055. TERMS. Members of the lactation consultant
board serve for staggered terms of six years. The terms of three
members expire on January 31 of each odd-numbered year.
Sec. 703.056. OFFICERS. The commissioner shall designate a
public member of the lactation consultant board as the presiding
officer of the lactation consultant board to serve in that capacity
at the pleasure of the commissioner. The lactation consultant
board shall elect one of the other members of the lactation
consultant board as vice presiding officer.
Sec. 703.057. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from the lactation consultant board that a member:
(1) does not have at the time of taking office the
qualifications required by Section 703.052;
(2) does not maintain during service on the lactation
consultant board the qualifications required by Section 703.052;
(3) is ineligible for membership under Section 703.053 or
703.054;
(4) cannot, because of illness or disability, discharge the
member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled
lactation consultant board meetings that the member is eligible to
attend during a calendar year without an excuse approved by a
majority vote of the lactation consultant board.
(b) The validity of an action of the lactation consultant
board is not affected by the fact that it is taken when a ground for
removal of a lactation consultant board member exists.
(c) If the program coordinator has knowledge that a
potential ground for removal exists, the program coordinator shall
notify the presiding officer of the lactation consultant board of
the potential ground. The presiding officer shall then notify the
commissioner that a potential ground for removal exists. If the
potential ground for removal involves the presiding officer, the
program coordinator shall notify the next highest ranking member of
the lactation consultant board, who shall then notify the
commissioner that a potential ground for removal exists.
Sec. 703.058. REIMBURSEMENT. A lactation consultant board
member may receive reimbursement for travel expenses as provided by
the General Appropriations Act.
Sec. 703.059. MEETINGS. (a) The lactation consultant
board shall meet at least semiannually.
(b) The lactation consultant board shall meet at other times
at the call of the lactation consultant board or the commissioner.
Sec. 703.060. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the lactation consultant
board may not vote, deliberate, or be counted as a member in
attendance at a meeting of the lactation consultant board until the
person completes a training program that complies with this
section.
(b) The training program must provide the person with
information regarding:
(1) this chapter and the programs, functions, rules, and
budget of the lactation consultant board;
(2) the results of the most recent formal audit of the
lactation consultant board;
(3) the requirements of laws relating to open meetings,
public information, administrative procedure, and conflicts of
interest; and
(4) any applicable ethics policies adopted by the lactation
consultant board or the Texas Ethics Commission.
(c) A person appointed to the lactation consultant board is
entitled to reimbursement, as provided by the General
Appropriations Act, for the travel expenses incurred in attending
the training program regardless of whether the attendance at the
program occurs before or after the person qualifies for office.
SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL
Sec. 703.101. PROGRAM COORDINATOR. The department shall,
after consultation with the lactation consultant board, employ a
coordinator for the lactation consulting program and the staff
necessary to administer the program.
Sec. 703.102. DUTIES OF PROGRAM COORDINATOR. The program
coordinator shall supervise the staff in the performance of
administrative duties, including:
(1) keeping the minutes of lactation consultant board
meetings; and
(2) maintaining:
(a) records about basic lactation consulting education
courses and continuing lactation consulting education courses;
(b) a roster of lactation consultants licensed under
Section 703.251; and
(c) a record of each person who is licensed under this
chapter.
Sec. 703.103. DIVISION OF RESPONSIBILITIES. The lactation
consultant board shall develop and implement policies that clearly
define the respective responsibilities of the lactation consultant
board and the staff of the lactation consultant board.
Sec. 703.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
(a) The program coordinator or the program coordinator's designee
shall prepare and maintain a written policy statement to ensure
implementation of an equal employment opportunity program under
which all personnel transactions are made without regard to race,
color, disability, sex, religion, age, or national origin. The
policy statement must include:
(1) personnel policies, including policies related to
recruitment, evaluation, selection, application, training, and
promotion of personnel that comply with Chapter 21, Labor Code;
(2) a comprehensive analysis of the lactation consultant
board workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of
significant underuse in the lactation consultant board workforce of
all persons for whom federal or state guidelines encourage a more
equitable balance; and
(4) reasonable methods to appropriately address those areas
of underuse.
(b) A policy statement prepared under Subsection (a) must:
(1) cover an annual period;
(2) be updated annually;
(3) be reviewed by the Commission on Human Rights for
compliance with Subsection (a)(1); and
(4) be filed with the governor.
(c) The governor shall deliver a biennial report to the
legislature based on the information received under Subsection (b).
The report may be made separately or as a part of another biennial
report made to the legislature.
SUBCHAPTER D. POWERS AND DUTIES OF LACTATION CONSULTANT BOARD,
EXECUTIVE COMMISSIONER, AND DEPARTMENT
Sec. 703.151. RULEMAKING AUTHORITY OF LACTATION CONSULTANT
BOARD. (a) Subject to the approval of the executive commissioner,
the lactation consultant board shall:
(1) adopt substantive and procedural rules necessary for
the licensing of lactation consultants;
(2) adopt rules prescribing the standards for the practice
of lactation consulting in this state. The standards must be
equivalent to established national standards such as those set by
the International Board of Lactation Consultant Examiners (IBCLE)
for an International Board Certified Lactation Consultant (IBCLC).
The standards must include ethical requirements.
(3) The rules must prescribe:
(a) the type of courses and number of hours required to meet
the basic lactation consulting education course and continuing
lactation consulting education course requirements; and
(b) minimum standards for the approval and revocation of
approval of:
(i) basic lactation consulting education courses and
continuing lactation consulting education courses; and
(ii) instructors or facilities used in basic lactation
consulting education courses and continuing lactation consulting
education courses;
(4) adopt rules requiring lactation consultants to require
patients to sign a release advising the patient that lactation
consultation is not a substitute for conventional medical care by a
physician, which includes diagnosis, treatment, and well child
care;
(5) adopt rules prescribing a procedure for reporting and
processing complaints relating to the practice of lactation
consulting in this state;
(6) adopt and implement substantive and procedural rules as
necessary to discipline lactation consultants determined to be in
violation of this chapter or otherwise a threat to the public health
and safety;
(7) adopt rules as necessary to establish eligibility for
reciprocity for initial licensing under this chapter; and
(8) adopt other rules necessary to implement a duty imposed
on the executive commissioner or the department under this chapter.
(b) The rules adopted under Subsection (a)(5) must include
rules relating to:
(1) warnings provided to lactation consultants for a
violation of this chapter or rules adopted under this chapter;
(2) agreed orders for additional education by lactation
consultants;
(3) recommendations or requirements for medical or
psychological treatment, including treatment related to substance
abuse by a lactation consultant; and
(4) restrictions on the practice of a lactation consultant,
including practice limitations and the suspension and revocation of
a license, and placement of a lactation consultant on probation.
Sec. 703.152. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION.
(a) Subject to the approval of the executive commissioner, the
lactation consultant board shall adopt rules necessary to comply
with Chapter 53.
(b) In its proposed rules under this section, the lactation
consultant board shall list the specific offenses for which a
conviction would constitute grounds for the lactation consultant
board to take action under Section 53.021.
Sec. 703.153. FEES. Subject to the approval of the
executive commissioner, the lactation consultant board by rule
shall establish reasonable and necessary fees that, in the
aggregate, produce sufficient revenue to cover the costs of
administering this chapter.
Sec. 703.154. ANNUAL REPORT; REPORTS ON LACTATION
CONSULTING. (a) The lactation consultant board shall prepare and
publish reports on the practice of lactation consulting in this
state, including statistical reporting of breastfeeding initiation
and continuation rates.
Sec. 703.155. COMPLAINT PROCEDURE AND INVESTIGATION. (a)
The lactation consultant board shall adopt rules concerning the
investigation of a complaint filed with the lactation consultant
board.
(b) The rules adopted under Subsection (a) must:
(1) distinguish among categories of complaints;
(2) ensure that a person who files a complaint has an
opportunity to explain the allegations made in the complaint; and
(3) provide for the release of any relevant lactation
consulting or medical record to the lactation consultant board,
without the necessity of consent by the lactation consultant's
patient, as necessary to conduct an investigation of a complaint.
(c) The lactation consultant board by rule shall:
(1) adopt a form to standardize information concerning
complaints made to the lactation consultant board; and
(2) prescribe information to be provided to a person when
the person files a complaint with the lactation consultant board.
(d) The lactation consultant board shall provide reasonable
assistance to a person who wishes to file a complaint with the
lactation consultant board.
Sec. 703.156. DUTIES OF LACTATION CONSULTANT BOARD AND
DEPARTMENT. (a) The department, with the recommendation of the
lactation consultant board, shall:
(1) implement rules governing:
(a) basic lactation consulting education courses and
continuing lactation consulting education courses; and
(b) approval of instructors or facilities used in offering
basic lactation consulting education courses and continuing
lactation consulting education courses;
(2) adopt and provide information about basic lactation
consulting resources and instructor manuals; and
(3) enter into agreements necessary to carry out this
chapter.
(c) The department shall:
(1) establish a program for licensure as a lactation
consultant as prescribed by lactation consultant board rules;
(2) pay the salaries of the program coordinator and any
additional staff the department determines to be necessary; and
(3) provide office space and supplies for the program
coordinator and other staff.
Sec. 703.157. ROSTER; NOTICE TO COUNTY OFFICIALS. (a) The
department shall maintain a roster of each person licensed as a
lactation consultant in this state.
(b) The roster shall contain for each person the information
required on the licensure form under this chapter and other
information the department determines necessary to accurately
identify each licensed lactation consultant. The information is
public information as defined by Chapter 552, Government Code.
Sec. 703.158. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING. (a) The lactation consultant board may not propose rules
restricting advertising or competitive bidding by a licensed
lactation consultant except to prohibit false, misleading, or
deceptive practices.
(b) The lactation consultant board may not include in its
proposed rules to prohibit false, misleading, or deceptive
practices by a licensed lactation consultant a rule that:
(1) restricts the lactation consultant's use of any
advertising medium;
(2) restricts the lactation consultant's personal
appearance or use of the lactation consultant's voice in an
advertisement;
(3) relates to the size or duration of an advertisement by
the lactation consultant; or
(4) restricts the lactation consultant's advertisement
under a trade name.
Sec. 703.159. BOARD COMMITTEES. (a) The lactation
consultant board may appoint committees to assist the lactation
consultant board with its functions under this chapter.
(b) Only a member of the lactation consultant board may
serve as a member of a lactation consultant board committee.
Sec. 703.160. USE OF TECHNOLOGY. Subject to the approval of
the executive commissioner, the lactation consultant board shall
implement a policy requiring the lactation consultant board to use
appropriate technological solutions to improve the lactation
consultant board's ability to perform its functions. The policy
must ensure that the public is able to interact with the lactation
consultant board on the Internet.
Sec. 703.161. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) Subject to the approval of the
executive commissioner, the lactation consultant board shall
develop and implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter 2008,
Government Code, for the adoption of lactation consultant board
rules; and
(2) appropriate alternative dispute resolution procedures
under Chapter 2009, Government Code, to assist in the resolution of
internal and external disputes under the lactation consultant
board's jurisdiction.
(b) The lactation consultant board's procedures relating to
alternative dispute resolution must conform, to the extent
possible, to any model guidelines issued by the State Office of
Administrative Hearings for the use of alternative dispute
resolution by state agencies.
(c) The department shall designate a trained person to:
(1) coordinate the implementation of the policy adopted
under Subsection (a);
(2) serve as a resource for any training needed to implement
the procedures for negotiated rulemaking or alternative dispute
resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the lactation consultant board.
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
Sec. 703.201. PUBLIC INTEREST INFORMATION. (a) The
lactation consultant board shall prepare information of public
interest describing the functions of the lactation consultant board
and the procedures by which complaints are filed with and resolved
by the lactation consultant board.
(b) The lactation consultant board shall make the
information available to the public and appropriate state agencies.
Sec. 703.202. COMPLAINTS. (a) The lactation consultant
board by rule shall establish methods by which consumers and
service recipients are notified of the name, mailing address, and
telephone number of the lactation consultant board for the purpose
of directing complaints to the lactation consultant board. The
lactation consultant board may provide for that notice:
(1) on each registration form, application, or disclosure
and informed consent form of a person regulated by the lactation
consultant board;
(2) on a sign prominently displayed in the place of business
of each person regulated by the lactation consultant board; or
(3) in a bill for service provided by a person regulated by
the lactation consultant board.
(b) The lactation consultant board shall list with its
regular telephone number the toll-free telephone number
established under other state law that may be called to present a
complaint about a health professional.
(c) The lactation consultant board shall maintain a system
to promptly and efficiently act on complaints filed with the
lactation consultant board. The lactation consultant board shall
maintain:
(1) information about the parties to the complaint and the
subject matter of the complaint;
(2) a summary of the results of the review or investigation
of the complaint; and
(3) information about the disposition of the complaint.
(d) The lactation consultant board shall make information
available describing its procedures for complaint investigation
and resolution.
(e) The lactation consultant board shall periodically
notify the parties of the status of the complaint until final
disposition of the complaint.
Sec. 703.203. COMPLAINT COMMITTEE. The lactation
consultant board shall appoint at least one public member of the
lactation consultant board to any lactation consultant board
committee established to review a complaint filed with the
lactation consultant board or review an enforcement action against
a lactation consultant related to a complaint filed with the
lactation consultant board.
Sec. 703.204. PUBLIC PARTICIPATION. (a) The lactation
consultant board shall develop and implement policies that provide
the public with a reasonable opportunity to appear before the
lactation consultant board and to speak on any issue under the
lactation consultant board's jurisdiction.
(b) The lactation consultant board shall prepare and
maintain a written plan that describes how a person who does not
speak English can be provided reasonable access to the lactation
consultant board's programs.
SUBCHAPTER F. LICENSURE REQUIREMENTS
Sec. 703.251. LICENSE REQUIRED. (a) A person may not
practice lactation consulting unless the person holds a license
issued under this chapter.
(b) The department shall provide a license to each person
who fulfills the licensing requirements.
(c) Unless the person is licensed under this chapter, a
person may not use:
(1) the title lactation consultant;
(2) the title registered lactation consultant;
(3) the letters LC;
(4) the letters RLC; or
(5) any other words, letters, abbreviations, or insignia
indicating or implying, by any means or in any way, that the person
is a licensed lactation consultant.
Sec. 703.252. QUALIFICATIONS FOR INITIAL LICENSE. (a) A
person qualifies to become a licensed lactation consultant under
this chapter if the person provides the program coordinator with
documentary evidence that the person has:
(1) satisfied each requirement for basic lactation
consulting education; and
(2) passed the comprehensive lactation consulting
examination and jurisprudence examination required by this
chapter.
(b) The initial license must be issued before the lactation
consultant begins to practice lactation consulting and may be
issued at any time during the year.
(c) The term of the initial license begins on the date the
requirements are met and extends through December 31 of the year in
which the initial license is issued.
Sec. 703.253. LICENSE APPLICATION. A person who practices
lactation consulting must apply to the department to be licensed as
a lactation consultant. The application must:
(1) be accompanied by a nonrefundable application fee; and
(2) include information required by lactation consultant
board rules.
Sec. 703.254. BASIC LACTATION CONSULTING EDUCATION.
Subject to the approval of the executive commissioner, the
lactation consultant board shall establish requirements for basic
lactation consulting education.
Sec. 703.255. EXAMINATION. (a) The lactation consultant
board, with the approval of the executive commissioner, shall:
(1) adopt standards for a comprehensive lactation
consulting examination for persons regulated under this chapter
that must be passed before the initial license may be issued; and
(2) establish eligibility requirements for persons taking a
comprehensive lactation consulting examination.
(b) The board may employ and cooperate with an organization
or consultant in preparing an appropriate examination.
(c) An independent testing professional must validate any
written examination prepared or offered by the board, including a
standardized national examination.
(d) Instead of creating its own examination, the board may
accept the results of a criterion-referenced, standardized
national examination by an independent lactation consultant
organization--such as the IBCLE--that meets the standards set by
the board.
Sec. 703.256. JURISPRUDENCE EXAMINATION. (a) The
lactation consultant board shall develop a jurisprudence
examination to determine an applicant's knowledge of this chapter,
lactation consultant board rules, and any other applicable laws of
this state affecting the applicant's lactation consulting
practice. A person applying for an initial or renewal license must
take the examination. The lactation consultant board shall
administer the examination at least twice each calendar year.
(b) Subject to the approval of the executive commissioner,
the lactation consultant board shall adopt rules to implement this
section, including rules related to the development and
administration of the examination, examination fees, guidelines
for reexamination, grading the examination, and providing notice of
examination results.
Sec. 703.257. EXAMINATION RESULTS. (a) The lactation
consultant board shall notify each examinee of the examination
results not later than the 30th day after the date on which the
examination is administered. If an examination is conducted,
graded or reviewed by a national testing service or independent
lactation consultant organization, the lactation consultant board
must notify each examinee of the examination results not later than
the 14th day after the date the lactation consultant board receives
the results from the testing service.
(b) If the notice of the examination results graded or
reviewed by a national testing service or independent lactation
consultant organization will be delayed for more than 90 days after
the examination date, the lactation consultant board must notify
the examinee of the reason for the delay before the 90th day.
(c) The lactation consultant board may require a testing
service to notify an examinee of the examination results.
SUBCHAPTER G. LICENSE RENEWAL
Sec. 703.301. APPLICATION FOR LICENSE RENEWAL. An
applicant for renewal of a license under this chapter must apply
biennially as provided in Section 703.253.
Sec. 703.302. PROCEDURE FOR RENEWAL. (a) A licensed
lactation consultant is responsible for renewing a license before
the expiration date of the license. A person whose license has
expired may not engage in activities that require a license until
the license has been renewed.
(b) A person may renew an unexpired license by paying the
required renewal fee to the lactation consultant board before the
expiration date of the license.
(c) A person whose license has been expired for 90 days or
less may renew the license by paying to the lactation consultant
board a fee that is equal to 1-1/4 times the amount of the renewal
fee.
(d) If a person's license has been expired for more than 90
days but less than one year, the person may renew the license by
paying to the lactation consultant board a fee that is equal to
1-1/2 times the amount of the renewal fee.
(e) A person whose license has been expired for one year or
more may not renew the license. The person may obtain a new license
by submitting to reexamination and complying with the requirements
and procedures for obtaining an initial license.
(f) Not later than the 30th day before the date a person's
license is scheduled to expire, the lactation consultant board
shall send written notice of the impending expiration to the person
at the person's last known address according to the records of the
lactation consultant board.
Sec. 703.303. STAGGERED RENEWAL DATES. (a) The lactation
consultant board by rule may adopt a system under which licenses
expire on various dates during the year.
(b) For the year in which the license expiration date is
changed, license fees payable on the original expiration date shall
be prorated on a monthly basis so that each licensed lactation
consultant pays only that portion of the license fee that is
allocable to the number of months during which the license is valid.
(c) On renewal of the license on the new expiration date,
the total license renewal fee is payable.
Sec. 703.304. CONTINUING LACTATION CONSULTING EDUCATION.
(a) Subject to the approval of the executive commissioner, the
lactation consultant board shall establish requirements for
continuing lactation consulting education, including a minimum
number of hours of continuing education required to renew a license
under this chapter.
(b) On renewal of the license, a lactation consultant must
provide the program coordinator with evidence, acceptable under
lactation consultant board rules, of completion of continuing
lactation consulting education as prescribed by the lactation
consultant board.
(c) The lactation consultant board by rule shall develop a
process to evaluate and approve continuing education courses.
Sec. 703.305. REQUIRED ATTENDANCE AT SPECIFIC LACTATION
CONSULTING EDUCATION COURSES. The lactation consultant board may
assess the continuing education needs of licensed lactation
consultants and may require licensed lactation consultants to
attend continuing lactation consulting education courses specified
by the lactation consultant board.
Sec. 703.306. GROUNDS FOR REFUSING RENEWAL. The lactation
consultant board may refuse to renew the license of a person who
fails to pay an administrative penalty imposed under Subchapter J,
unless enforcement of the penalty is stayed or a court has ordered
that the administrative penalty is not owed.
SUBCHAPTER H. PROHIBITED PRACTICES AND GROUNDS FOR DISCIPLINARY
ACTION
Sec. 703.351. GROUNDS FOR DISCIPLINARY ACTION. (a) The
lactation consultant board may discipline a licensed lactation
consultant, refuse to renew a lactation consultant's license, or
refuse to issue a license to an applicant if the person:
(1) violates this chapter or a rule adopted under this
chapter;
(2) submits false or misleading information to the
lactation consultant board or the department;
(3) is convicted of a misdemeanor involving moral turpitude
or a felony;
(4) uses alcohol or drugs intemperately;
(5) engages in unprofessional or dishonorable conduct that
may reasonably be determined to deceive or defraud the public;
(6) is unable to practice lactation consulting with
reasonable skill and safety because of illness, disability, or
psychological impairment;
(7) is determined by a court judgment to be mentally
impaired; or
(8) fails to practice lactation consulting in a manner
consistent with the public health and safety.
(b) The lactation consultant board may discipline a
licensed lactation consultant and may refuse to issue a license to
an applicant for a disciplinary action taken by another
jurisdiction that affects the person's authority to practice
lactation consulting, including a suspension, a revocation, or
another action.
Sec. 703.352. EMERGENCY SUSPENSION. (a) The lactation
consultant board or a three-member committee of lactation
consultant board members designated by the lactation consultant
board shall temporarily suspend the license of a licensed lactation
consultant if the lactation consultant board or committee
determines from the evidence or information presented to it that
continued practice by the licensed lactation consultant would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a hearing
before the State Office of Administrative Hearings simultaneously
with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
Sec. 703.353. REFUND. (a) Subject to Subsection (b), the
lactation consultant board may order a licensed lactation
consultant to pay a refund to a consumer as provided in an agreement
resulting from an informal settlement conference instead of or in
addition to imposing an administrative penalty under this chapter.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to the licensed lactation
consultant for a service regulated by this chapter. The lactation
consultant board may not require payment of other damages or
estimate harm in a refund order.
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 703.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
lactation consultant board may impose an administrative penalty on
a person who violates this chapter or a rule adopted under this
chapter.
Sec. 703.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not exceed $1,000 for each
violation. Each day a violation continues is a separate violation.
(b) The amount shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require.
Sec. 703.403. NOTICE OF VIOLATION AND PENALTY. (a) If,
after investigation of a possible violation and the facts
surrounding that possible violation, the lactation consultant
board or its designee determines that a violation has occurred, the
lactation consultant board or its designee shall give written
notice of the violation to the person alleged to have committed the
violation.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the proposed administrative
penalty; and
(3) inform the person of the person's right to a hearing on
the occurrence of the violation, the amount of the penalty, or both.
Sec. 703.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Not later than the 20th day after the date the person receives the
notice under Section 703.453, the person may:
(1) accept the lactation consultant board or its designee's
determination and the proposed administrative penalty; or
(2) make a written request for a hearing on that
determination.
(b) If the person accepts the lactation consultant board or
its designee's determination, the lactation consultant board by
order shall approve the determination and require the person to pay
the proposed penalty.
Sec. 703.405. HEARING. (a) If the person timely requests a
hearing, the lactation consultant board or its designee shall set a
hearing and give written notice of the hearing to the person. The
lactation consultant board or its designee may employ a hearings
examiner for this purpose.
(b) The hearings examiner shall make findings of fact and
conclusions of law and promptly issue to the lactation consultant
board a proposal for decision as to the occurrence of the violation
and the amount of the proposed administrative penalty.
Sec. 703.406. DECISION BY LACTATION CONSULTANT BOARD. (a)
Based on the findings of fact, conclusions of law, and proposal for
decision, the lactation consultant board by order may determine
that:
(1) a violation has occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The lactation consultant board shall give notice of the
lactation consultant board's order to the person. The notice must
include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) the amount of any penalty assessed; and
(3) a statement of the right of the person to judicial
review of the lactation consultant board's order.
Sec. 703.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date the lactation
consultant board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review
contesting the fact of the violation, the amount of the penalty, or
both; or
(3) without paying the penalty, file a petition for judicial
review contesting the fact of the violation, the amount of the
penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(a) paying the penalty to the court for placement in an
escrow account; or
(b) giving to the court a supersedeas bond that is approved
by the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until judicial review of the order is
final; or
(2) request the court to stay enforcement of the penalty by:
(a) filing with the court a sworn affidavit of the person
stating that the person is financially unable to pay the amount of
the penalty and is financially unable to give the supersedeas bond;
and
(b) giving a copy of the affidavit to the lactation
consultant board by certified mail.
(c) If the lactation consultant board receives a copy of an
affidavit under Subsection (b)(2), the lactation consultant board
may file with the court a contest to the affidavit not later than
the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 703.408. COLLECTION OF PENALTY. (a) If the person on
whom the administrative penalty is imposed does not comply with
Section 703.457, the penalty may be collected.
(b) The lactation consultant board may assess reasonable
expenses and costs against a person in an administrative hearing
if, as a result of the hearing, an administrative penalty is
assessed against the person. The person shall pay expenses and
costs assessed under this subsection not later than the 30th day
after the date the order of the lactation consultant board
requiring the payment of expenses and costs is final. The lactation
consultant board may refer the matter to the attorney general for
collection of the expenses and costs.
(c) If the attorney general brings an action against a
person to enforce an administrative penalty assessed under this
chapter and the person is found liable for an administrative
penalty, the attorney general may recover, on behalf of the
attorney general, the lactation consultant board, and the
department, reasonable expenses and costs.
(d) In this section, reasonable expenses and costs includes
expenses incurred by the department, the lactation consultant
board, and the attorney general in the investigation, initiation,
or prosecution of an action, including reasonable investigative
costs, court costs, attorney's fees, witness fees, and deposition
expenses.
(e) Costs and expenses collected under this section shall be
deposited in the state treasury to the credit of a special account
that may be appropriated only to the department. Section 403.095,
Government Code, does not apply to the account.
Sec. 703.409. DETERMINATION BY COURT. (a) If a court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 703.410. REMITTANCE OF PENALTY AND INTEREST. (a) If,
after judicial review, the administrative penalty is reduced or not
imposed by the court, the court shall:
(1) order the lactation consultant board to remit to the
person the appropriate amount, plus accrued interest, if the person
paid the penalty; or
(2) order the release of the bond in full if the penalty is
not imposed or order the release of the bond after the person pays
the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is accrued at
the rate charged on loans to depository institutions by the New York
Federal Reserve Bank. The interest shall be paid for the period
beginning on the date the penalty is paid and ending on the date the
penalty is remitted.
Sec. 703.411. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter to impose an administrative penalty is subject to
Chapter 2001, Government Code.
SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 703.451. CIVIL PENALTY. (a) A person is liable for a
civil penalty if the person is required to be licensed under this
chapter and the person knowingly or intentionally practices
lactation consulting:
(1) without a license or while the license is suspended or
revoked; or
(2) in violation of a lactation consultant board order.
(b) A civil penalty under this section may not exceed $250
for each violation. Each day of violation may constitute a separate
violation for purposes of penalty assessment. In determining the
amount of the penalty, the court shall consider:
(1) the person's history of previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public; and
(4) the demonstrated good faith of the person charged.
Sec. 703.452. INJUNCTIONS. (a) In this section, "health
authority" means a physician who administers state and local laws
regulating public health under Chapter 121, Health and Safety Code.
(b) If the commissioner or a health authority determines
that a person has violated this chapter and that the violation
creates an immediate threat to the health and safety of the public,
the commissioner or the health authority, with the concurrence of
the commissioner, may request the attorney general or a district,
county, or city attorney to bring an action in a district court for
a restraining order to restrain the violation.
(c) If a person has violated this chapter, the commissioner
or a health authority, with the concurrence of the commissioner,
may bring an action in a district court for an injunction to
prohibit the person from continuing the violation.
Sec. 703.453. VENUE. (a) Venue for a civil action brought
under Section 703.451 or 703.452 is in the county in which the
defendant resides or in the county in which the violation occurred.
(b) Venue for the civil action may be changed only after a
good faith effort has been made to address the violation in the
county in which venue is proper.
Sec. 703.454. CRIMINAL PENALTY. (a) A person commits an
offense if the person is required to be licensed under this chapter
and the person knowingly practices lactation consulting without a
license.
(b) An offense under this section is a Class C misdemeanor.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Sec. 703.455. CEASE AND DESIST ORDER. (a) If it appears to
the lactation consultant board that a person who is not licensed
under this chapter is violating this chapter, a rule adopted under
this chapter, or another state statute or rule relating to the
practice of lactation consulting, the lactation consultant board
after notice and opportunity for a hearing may issue a cease and
desist order prohibiting the person from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under Subchapter J.
SECTION 2. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2015.
(b) Subsection 703.251(a) and (c)(License Required) take
effect September 1, 2016.