Texas 2021 - 87th Regular

Texas House Bill HB1072 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R3084 DRS-D
2	2	By: Ortega H.B. No. 1072
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the licensing and regulation of lactation consultants
8	8	and the creation of the Lactation Consultant Advisory Board;
9	9	requiring an occupational license; imposing fees; providing
10	10	penalties; creating a criminal offense.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 51.2031(a), Occupations Code, is amended
13	13	to read as follows:
14	14	(a) This section applies only to the regulation of the
15	15	following professions by the department:
16	16	(1) athletic trainers;
17	17	(2) behavior analysts;
18	18	(3) dietitians;
19	19	(4) hearing instrument fitters and dispensers;
20	20	(5) midwives;
21	21	(6) orthotists and prosthetists; [and]
22	22	(7) speech-language pathologists and audiologists;
23	23	and
24	24	(8) lactation consultants.
25	25	SECTION 2. Subtitle M, Title 3, Occupations Code, is
26	26	amended by adding Chapter 703 to read as follows:
27	27	CHAPTER 703. LACTATION CONSULTANTS
28	28	SUBCHAPTER A. GENERAL PROVISIONS
29	29	Sec. 703.001. SHORT TITLE. This chapter may be cited as the
30	30	Texas Lactation Consultant Act.
31	31	Sec. 703.002. DEFINITIONS. In this chapter:
32	32	(1) "Advisory board" means the Lactation Consultant
33	33	Advisory Board.
34	34	(2) "Commission" means the Texas Commission of
35	35	Licensing and Regulation.
36	36	(3) "Department" means the Texas Department of
37	37	Licensing and Regulation.
38	38	(4) "Executive director" means the executive director
39	39	of the department.
40	40	(5) "Lactation consultant" means a health care
41	41	professional licensed under this chapter who specializes in the
42	42	clinical management of breastfeeding and works in a variety of
43	43	settings.
44	44	Sec. 703.003. APPLICABILITY. Unless the person uses the
45	45	title "lactation consultant" or "licensed lactation consultant" to
46	46	describe the person's activities, this chapter does not apply to:
47	47	(1) a person licensed in this state as a physician or
48	48	nurse;
49	49	(2) a health care professional licensed by this state
50	50	and operating within the scope of the person's license;
51	51	(3) a person acting as a paid or volunteer peer
52	52	counselor, La Leche League Leader, doula, or childbirth educator;
53	53	or
54	54	(4) a licensed midwife.
55	55	Sec. 703.004. APPLICATION OF SUNSET ACT. The Lactation
56	56	Consultant Advisory Board is subject to Chapter 325, Government
57	57	Code (Texas Sunset Act). Unless continued in existence as provided
58	58	by that chapter, the Lactation Consultant Advisory Board is
59	59	abolished and this chapter expires September 1, 2023.
60	60	SUBCHAPTER B. LACTATION CONSULTANT ADVISORY BOARD
61	61	Sec. 703.051. ADVISORY BOARD MEMBERSHIP. (a) The advisory
62	62	board consists of nine members appointed by the presiding officer
63	63	of the commission with the approval of the commission as follows:
64	64	(1) five lactation consultant members, each of whom
65	65	has at least three years' experience in the practice of lactation
66	66	consulting;
67	67	(2) one physician member who is certified by a
68	68	national professional organization of physicians that certifies:
69	69	(A) obstetricians and gynecologists;
70	70	(B) family practitioners; or
71	71	(C) pediatricians;
72	72	(3) one member who:
73	73	(A) is an advanced practice registered nurse; and
74	74	(B) practices in obstetrics, pediatrics, or
75	75	family practice; and
76	76	(4) two members who represent the public and are not
77	77	practicing or trained in a health care profession, at least one of
78	78	whom is a parent who has been assisted by a lactation consultant.
79	79	(b) Appointments to the advisory board shall be made without
80	80	regard to the race, color, disability, sex, religion, age, or
81	81	national origin of the appointee.
82	82	Sec. 703.052. DUTIES OF ADVISORY BOARD. The advisory board
83	83	shall provide advice and recommendations to the department on
84	84	technical matters relevant to the administration of this chapter.
85	85	Sec. 703.053. TERMS; VACANCIES. (a) Members of the
86	86	advisory board serve for staggered terms of six years. The terms
87	87	of three members expire on January 31 of each odd-numbered year.
88	88	(b) If a vacancy occurs during a member's term, the
89	89	presiding officer of the commission, with the commission's
90	90	approval, shall appoint a replacement who meets the qualifications
91	91	for the vacant position to serve for the remainder of the term.
92	92	Sec. 703.054. PRESIDING OFFICER. The presiding officer of
93	93	the commission shall designate a public member of the advisory
94	94	board to serve as the presiding officer of the advisory board to
95	95	serve for a term of one year. The presiding officer of the advisory
96	96	board may vote on any matter before the advisory board.
97	97	Sec. 703.055. MEETINGS. The advisory board shall meet at
98	98	the call of the presiding officer of the commission or the executive
99	99	director.
100	100	Sec. 703.056. APPLICABILITY OF OTHER LAW. Chapter 2110,
101	101	Government Code, does not apply to the composition or duration of
102	102	the advisory board or to the appointment of the advisory board's
103	103	presiding officer.
104	104	SUBCHAPTER C. POWERS AND DUTIES
105	105	Sec. 703.101. GENERAL POWERS AND DUTIES. (a) The executive
106	106	director shall administer and enforce this chapter.
107	107	(b) The commission shall adopt rules:
108	108	(1) prescribing the standards for the practice of
109	109	lactation consulting in this state;
110	110	(2) prescribing the type of courses and number of
111	111	hours required to meet the basic lactation consulting education
112	112	course and continuing lactation consulting education course
113	113	requirements;
114	114	(3) prescribing minimum standards for the approval and
115	115	revocation of approval of:
116	116	(A) basic lactation consulting education courses
117	117	and continuing lactation consulting education courses; and
118	118	(B) instructors or facilities offering basic
119	119	lactation consulting education courses and continuing lactation
120	120	consulting education courses;
121	121	(4) requiring lactation consultants to obtain each
122	122	patient's signature on a release advising the patient that
123	123	lactation consultation is not a substitute for conventional medical
124	124	care by a physician, including diagnosis, treatment, and well-child
125	125	care; and
126	126	(5) establishing requirements necessary to establish
127	127	eligibility for reciprocity for initial licensing under this
128	128	chapter.
129	129	(c) The standards prescribed under Subsection (b)(1) must
130	130	be equivalent to national standards prescribed by the International
131	131	Board of Lactation Consultant Examiners for an International Board
132	132	Certified Lactation Consultant. The standards must include ethical
133	133	requirements.
134	134	(d) The department shall:
135	135	(1) implement rules governing:
136	136	(A) basic lactation consulting education courses
137	137	and continuing lactation consulting education courses; and
138	138	(B) approval of instructors or facilities
139	139	offering basic lactation consulting education courses and
140	140	continuing lactation consulting education courses;
141	141	(2) adopt and provide information about basic
142	142	lactation consulting resources and instructor manuals;
143	143	(3) enter into agreements necessary to administer this
144	144	chapter; and
145	145	(4) establish a program to license lactation
146	146	consultants as prescribed by commission rules.
147	147	Sec. 703.102. REPORTS ON LACTATION CONSULTING. (a) The
148	148	department shall prepare and publish reports on the practice of
149	149	lactation consulting in this state.
150	150	(b) The Department of State Health Services shall publish a
151	151	statistical report of breastfeeding initiation and continuation
152	152	rates.
153	153	Sec. 703.103. COMPLAINTS. (a) For purposes of Section
154	154	51.252, the commission shall adopt rules to provide for the release
155	155	of any relevant lactation consulting or medical record to the
156	156	department, without the consent of the lactation consultant's
157	157	client, as necessary to conduct an investigation of a complaint.
158	158	(b) The department shall provide reasonable assistance to a
159	159	person who wishes to file a complaint with the department regarding
160	160	a person or activity regulated by this chapter.
161	161	Sec. 703.104. ROSTER. (a) The department shall maintain a
162	162	roster of each person licensed as a lactation consultant in this
163	163	state.
164	164	(b) The roster must contain for each person the information
165	165	required on the license form under this chapter and other
166	166	information the department determines necessary to accurately
167	167	identify each licensed lactation consultant. The information is
168	168	public information as defined by Chapter 552, Government Code.
169	169	SUBCHAPTER D. LICENSE REQUIREMENTS
170	170	Sec. 703.151. LICENSE REQUIRED. (a) A person may not
171	171	practice lactation consulting unless the person holds a license
172	172	issued under this chapter.
173	173	(b) The department shall issue a license to each person who
174	174	fulfills the licensing requirements.
175	175	(c) Unless the person holds a license issued under this
176	176	chapter, a person may not use:
177	177	(1) the title "lactation consultant";
178	178	(2) the title "registered lactation consultant";
179	179	(3) the letters "LC";
180	180	(4) the letters "RLC"; or
181	181	(5) any other words, letters, abbreviations, or
182	182	insignia indicating or implying that the person is a licensed
183	183	lactation consultant.
184	184	Sec. 703.152. QUALIFICATIONS FOR INITIAL LICENSE. A person
185	185	is qualified to become a licensed lactation consultant under this
186	186	chapter if the person provides the department with documentary
187	187	evidence that the person has:
188	188	(1) satisfied each requirement for basic lactation
189	189	consulting education; and
190	190	(2) passed the comprehensive lactation consulting
191	191	examination and jurisprudence examination required by this
192	192	chapter.
193	193	Sec. 703.153. LICENSE APPLICATION. A person who practices
194	194	lactation consulting shall apply to the department for a lactation
195	195	consultant license in the manner and on a form prescribed by the
196	196	executive director. The application must:
197	197	(1) be accompanied by a nonrefundable application fee;
198	198	and
199	199	(2) include information required by commission rules.
200	200	Sec. 703.154. INITIAL LICENSE TERM. An initial license is
201	201	valid for one year.
202	202	Sec. 703.155. BASIC LACTATION CONSULTING EDUCATION. The
203	203	commission by rule shall establish requirements for basic lactation
204	204	consulting education.
205	205	Sec. 703.156. EXAMINATION. (a) The department shall:
206	206	(1) adopt standards for a comprehensive lactation
207	207	consulting examination for persons regulated under this chapter
208	208	that an applicant must pass before an initial license may be issued;
209	209	and
210	210	(2) establish eligibility requirements for persons
211	211	taking a comprehensive lactation consulting examination.
212	212	(b) The department may employ and cooperate with an
213	213	organization or consultant in preparing an appropriate
214	214	examination.
215	215	(c) Instead of preparing a department examination, the
216	216	department may accept the results of a criterion-referenced,
217	217	standardized national examination by an independent lactation
218	218	consultant organization that meets the standards set by the
219	219	department.
220	220	Sec. 703.157. JURISPRUDENCE EXAMINATION. (a) The
221	221	department shall develop a jurisprudence examination to determine
222	222	an applicant's knowledge of this chapter, commission rules under
223	223	this chapter, and any other applicable laws of this state affecting
224	224	the applicant's lactation consulting practice. The department
225	225	shall administer the examination at least twice each calendar year.
226	226	(b) The commission shall adopt rules to implement this
227	227	section, including rules related to the development and
228	228	administration of the examination, examination fees, guidelines
229	229	for reexamination, grading the examination, and providing notice of
230	230	examination results.
231	231	SUBCHAPTER E. LICENSE RENEWAL
232	232	Sec. 703.201. APPLICATION FOR LICENSE RENEWAL. An
233	233	applicant for renewal of a license under this chapter shall apply in
234	234	the manner provided by Section 703.153.
235	235	Sec. 703.202. RENEWAL LICENSE TERM. A renewal license is
236	236	valid for two years.
237	237	Sec. 703.203. CONTINUING LACTATION CONSULTING EDUCATION.
238	238	(a) The commission by rule shall establish requirements for
239	239	continuing lactation consulting education, including a minimum
240	240	number of hours of continuing education required to renew a license
241	241	under this chapter.
242	242	(b) On renewal of the license, a lactation consultant shall
243	243	provide the department with evidence of successful completion of
244	244	continuing lactation consulting education as prescribed by
245	245	commission rule.
246	246	(c) The commission by rule shall develop a process to
247	247	evaluate and approve continuing education courses.
248	248	Sec. 703.204. REQUIRED ATTENDANCE AT SPECIFIC LACTATION
249	249	CONSULTING EDUCATION COURSES. The department may assess the
250	250	continuing education needs of lactation consultants and may require
251	251	lactation consultants to attend continuing lactation consulting
252	252	education courses specified by the department.
253	253	Sec. 703.205. REFUSING RENEWAL FOR FAILURE TO PAY
254	254	ADMINISTRATIVE PENALTY. The department may refuse to renew the
255	255	license of a person who fails to pay an administrative penalty
256	256	unless enforcement of the penalty is stayed or a court has ordered
257	257	that the administrative penalty is not owed.
258	258	SUBCHAPTER F. DISCIPLINARY ACTIONS
259	259	Sec. 703.251. GROUNDS FOR DISCIPLINARY ACTION. (a) The
260	260	commission or executive director may take disciplinary action
261	261	against or refuse to issue or renew a license of an applicant or
262	262	license holder who:
263	263	(1) violates this chapter or a rule adopted under this
264	264	chapter;
265	265	(2) submits false or misleading information to the
266	266	department;
267	267	(3) is convicted of a misdemeanor involving moral
268	268	turpitude or a felony;
269	269	(4) uses alcohol or drugs intemperately;
270	270	(5) engages in unprofessional or dishonorable conduct
271	271	that may reasonably be determined to deceive or defraud the public;
272	272	(6) is unable to practice lactation consulting with
273	273	reasonable skill and safety because of illness, disability, or
274	274	psychological impairment;
275	275	(7) is determined by a court judgment to be mentally
276	276	impaired; or
277	277	(8) fails to practice lactation consulting in a manner
278	278	consistent with the public health and safety.
279	279	(b) The commission or executive director may take
280	280	disciplinary action against or refuse to issue or renew a license of
281	281	an applicant or license holder if disciplinary action is taken by
282	282	another jurisdiction that affects the applicant's or license
283	283	holder's authority to practice lactation consulting, including a
284	284	suspension, revocation, or other action.
285	285	Sec. 703.252. REFUND. (a) Subject to Subsection (b), the
286	286	commission or executive director may order a license holder to pay a
287	287	refund to a consumer as provided in an agreed settlement, default
288	288	order, or commission order instead of or in addition to imposing an
289	289	administrative penalty against the license holder.
290	290	(b) The amount of a refund ordered may not exceed the amount
291	291	the consumer paid to the license holder for a service regulated by
292	292	this chapter. The commission or executive director may not require
293	293	payment of other damages or estimate harm in a refund order.
294	294	SUBCHAPTER G. PENALTIES AND ENFORCEMENT PROVISIONS
295	295	Sec. 703.301. CIVIL PENALTY. (a) A person is liable for a
296	296	civil penalty if the person is required to be licensed under this
297	297	chapter and the person knowingly or intentionally practices
298	298	lactation consulting:
299	299	(1) without a license or while the person's license is
300	300	suspended or revoked; or
301	301	(2) in violation of a commission order.
302	302	(b) A civil penalty under this section may not exceed $250
303	303	for each violation. Each day of violation may constitute a separate
304	304	violation for purposes of penalty assessment. In determining the
305	305	amount of the penalty, the court shall consider:
306	306	(1) the person's history of previous violations;
307	307	(2) the seriousness of the violation;
308	308	(3) any hazard to the health and safety of the public;
309	309	and
310	310	(4) the demonstrated good faith of the person charged.
311	311	Sec. 703.302. INJUNCTIONS. (a) In this section, "health
312	312	authority" means a physician who administers state and local laws
313	313	regulating public health under Chapter 121, Health and Safety Code.
314	314	(b) If the executive director or a health authority
315	315	determines that a person has violated this chapter, the executive
316	316	director may institute an action described by Section 51.352.
317	317	Sec. 703.303. VENUE. (a) Venue for a civil action arising
318	318	out of the imposition of an administrative penalty is in the county
319	319	in which the defendant resides or the violation occurred.
320	320	(b) Venue for the civil action may be changed only after a
321	321	good faith effort has been made to address the violation in the
322	322	county in which venue is proper.
323	323	Sec. 703.304. CRIMINAL PENALTY. (a) A person commits an
324	324	offense if the person is required to be licensed under this chapter
325	325	and the person knowingly practices lactation consulting without a
326	326	license.
327	327	(b) An offense under this section is a Class C misdemeanor.
328	328	Sec. 703.305. CEASE AND DESIST ORDER. A violation of a
329	329	cease and desist order issued by the executive director constitutes
330	330	grounds for imposing an administrative penalty.
331	331	SECTION 3. (a) As soon as practicable after the effective
332	332	date of this Act, the presiding officer of the Texas Commission of
333	333	Licensing and Regulation shall appoint the initial members to the
334	334	Lactation Consultant Advisory Board as required by Section 703.051,
335	335	Occupations Code, as added by this Act. In appointing the members,
336	336	the presiding officer shall appoint three members to terms expiring
337	337	January 31, 2023, three members to terms expiring January 31, 2025,
338	338	and three members to terms expiring January 31, 2027.
339	339	(b) Not later than June 1, 2022, the Texas Department of
340	340	Licensing and Regulation shall prescribe the forms and procedures
341	341	and the Lactation Consultant Advisory Board shall propose to the
342	342	Texas Commission of Licensing and Regulation the rules necessary to
343	343	implement Chapter 703, Occupations Code, as added by this Act.
344	344	(c) Notwithstanding Chapter 703, Occupations Code, as added
345	345	by this Act, a person is not required to hold a license under that
346	346	chapter before September 1, 2022.
347	347	(d) Subchapters F and G, Chapter 51, Occupations Code, do
348	348	not apply to conduct described by Section 703.151, Occupations
349	349	Code, as added by this Act, before September 1, 2022.
350	350	SECTION 4. (a) Except as provided by Subsection (b) of
351	351	this section, this Act takes effect September 1, 2021.
352	352	(b) Section 703.151, Occupations Code, and Subchapters F
353	353	and G, Chapter 703, Occupations Code, as added by this Act, take
354	354	effect September 1, 2022.