87R3084 DRS-D
By: Ortega H.B. No. 1072
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of lactation consultants
and the creation of the Lactation Consultant Advisory Board;
requiring an occupational license; imposing fees; providing
penalties; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.2031(a), Occupations Code, is amended
to read as follows:
(a) This section applies only to the regulation of the
following professions by the department:
(1) athletic trainers;
(2) behavior analysts;
(3) dietitians;
(4) hearing instrument fitters and dispensers;
(5) midwives;
(6) orthotists and prosthetists; [and]
(7) speech-language pathologists and audiologists;
and
(8) lactation consultants.
SECTION 2. 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) "Advisory board" means the Lactation Consultant
Advisory Board.
(2) "Commission" means the Texas Commission of
Licensing and Regulation.
(3) "Department" means the Texas Department of
Licensing and Regulation.
(4) "Executive director" means the executive director
of the department.
(5) "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. APPLICABILITY. Unless the person uses the
title "lactation consultant" or "licensed 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 this 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. 703.004. APPLICATION OF SUNSET ACT. The Lactation
Consultant Advisory Board is subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the Lactation Consultant Advisory Board is
abolished and this chapter expires September 1, 2023.
SUBCHAPTER B. LACTATION CONSULTANT ADVISORY BOARD
Sec. 703.051. ADVISORY BOARD MEMBERSHIP. (a) The advisory
board consists of nine members appointed by the presiding officer
of the commission with the approval of the commission 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 certified by a
national professional organization of physicians that certifies:
(A) obstetricians and gynecologists;
(B) family practitioners; or
(C) pediatricians;
(3) one member who:
(A) is an advanced practice registered nurse; and
(B) practices in obstetrics, pediatrics, or
family practice; and
(4) two members who represent the public and are not
practicing or trained in a health care profession, at least one of
whom is a parent who has been assisted by a lactation consultant.
(b) Appointments to the advisory board shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
Sec. 703.052. DUTIES OF ADVISORY BOARD. The advisory board
shall provide advice and recommendations to the department on
technical matters relevant to the administration of this chapter.
Sec. 703.053. TERMS; VACANCIES. (a) Members of the
advisory board serve for staggered terms of six years. The terms
of three members expire on January 31 of each odd-numbered year.
(b) If a vacancy occurs during a member's term, the
presiding officer of the commission, with the commission's
approval, shall appoint a replacement who meets the qualifications
for the vacant position to serve for the remainder of the term.
Sec. 703.054. PRESIDING OFFICER. The presiding officer of
the commission shall designate a public member of the advisory
board to serve as the presiding officer of the advisory board to
serve for a term of one year. The presiding officer of the advisory
board may vote on any matter before the advisory board.
Sec. 703.055. MEETINGS. The advisory board shall meet at
the call of the presiding officer of the commission or the executive
director.
Sec. 703.056. APPLICABILITY OF OTHER LAW. Chapter 2110,
Government Code, does not apply to the composition or duration of
the advisory board or to the appointment of the advisory board's
presiding officer.
SUBCHAPTER C. POWERS AND DUTIES
Sec. 703.101. GENERAL POWERS AND DUTIES. (a) The executive
director shall administer and enforce this chapter.
(b) The commission shall adopt rules:
(1) prescribing the standards for the practice of
lactation consulting in this state;
(2) prescribing the type of courses and number of
hours required to meet the basic lactation consulting education
course and continuing lactation consulting education course
requirements;
(3) prescribing minimum standards for the approval and
revocation of approval of:
(A) basic lactation consulting education courses
and continuing lactation consulting education courses; and
(B) instructors or facilities offering basic
lactation consulting education courses and continuing lactation
consulting education courses;
(4) requiring lactation consultants to obtain each
patient's signature on a release advising the patient that
lactation consultation is not a substitute for conventional medical
care by a physician, including diagnosis, treatment, and well-child
care; and
(5) establishing requirements necessary to establish
eligibility for reciprocity for initial licensing under this
chapter.
(c) The standards prescribed under Subsection (b)(1) must
be equivalent to national standards prescribed by the International
Board of Lactation Consultant Examiners for an International Board
Certified Lactation Consultant. The standards must include ethical
requirements.
(d) The department shall:
(1) implement rules governing:
(A) basic lactation consulting education courses
and continuing lactation consulting education courses; and
(B) approval of instructors or facilities
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;
(3) enter into agreements necessary to administer this
chapter; and
(4) establish a program to license lactation
consultants as prescribed by commission rules.
Sec. 703.102. REPORTS ON LACTATION CONSULTING. (a) The
department shall prepare and publish reports on the practice of
lactation consulting in this state.
(b) The Department of State Health Services shall publish a
statistical report of breastfeeding initiation and continuation
rates.
Sec. 703.103. COMPLAINTS. (a) For purposes of Section
51.252, the commission shall adopt rules to provide for the release
of any relevant lactation consulting or medical record to the
department, without the consent of the lactation consultant's
client, as necessary to conduct an investigation of a complaint.
(b) The department shall provide reasonable assistance to a
person who wishes to file a complaint with the department regarding
a person or activity regulated by this chapter.
Sec. 703.104. ROSTER. (a) The department shall maintain a
roster of each person licensed as a lactation consultant in this
state.
(b) The roster must contain for each person the information
required on the license 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.
SUBCHAPTER D. LICENSE REQUIREMENTS
Sec. 703.151. LICENSE REQUIRED. (a) A person may not
practice lactation consulting unless the person holds a license
issued under this chapter.
(b) The department shall issue a license to each person who
fulfills the licensing requirements.
(c) Unless the person holds a license issued 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 that the person is a licensed
lactation consultant.
Sec. 703.152. QUALIFICATIONS FOR INITIAL LICENSE. A person
is qualified to become a licensed lactation consultant under this
chapter if the person provides the department 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.
Sec. 703.153. LICENSE APPLICATION. A person who practices
lactation consulting shall apply to the department for a lactation
consultant license in the manner and on a form prescribed by the
executive director. The application must:
(1) be accompanied by a nonrefundable application fee;
and
(2) include information required by commission rules.
Sec. 703.154. INITIAL LICENSE TERM. An initial license is
valid for one year.
Sec. 703.155. BASIC LACTATION CONSULTING EDUCATION. The
commission by rule shall establish requirements for basic lactation
consulting education.
Sec. 703.156. EXAMINATION. (a) The department shall:
(1) adopt standards for a comprehensive lactation
consulting examination for persons regulated under this chapter
that an applicant must pass before an initial license may be issued;
and
(2) establish eligibility requirements for persons
taking a comprehensive lactation consulting examination.
(b) The department may employ and cooperate with an
organization or consultant in preparing an appropriate
examination.
(c) Instead of preparing a department examination, the
department may accept the results of a criterion-referenced,
standardized national examination by an independent lactation
consultant organization that meets the standards set by the
department.
Sec. 703.157. JURISPRUDENCE EXAMINATION. (a) The
department shall develop a jurisprudence examination to determine
an applicant's knowledge of this chapter, commission rules under
this chapter, and any other applicable laws of this state affecting
the applicant's lactation consulting practice. The department
shall administer the examination at least twice each calendar year.
(b) The commission 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.
SUBCHAPTER E. LICENSE RENEWAL
Sec. 703.201. APPLICATION FOR LICENSE RENEWAL. An
applicant for renewal of a license under this chapter shall apply in
the manner provided by Section 703.153.
Sec. 703.202. RENEWAL LICENSE TERM. A renewal license is
valid for two years.
Sec. 703.203. CONTINUING LACTATION CONSULTING EDUCATION.
(a) The commission by rule 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 shall
provide the department with evidence of successful completion of
continuing lactation consulting education as prescribed by
commission rule.
(c) The commission by rule shall develop a process to
evaluate and approve continuing education courses.
Sec. 703.204. REQUIRED ATTENDANCE AT SPECIFIC LACTATION
CONSULTING EDUCATION COURSES. The department may assess the
continuing education needs of lactation consultants and may require
lactation consultants to attend continuing lactation consulting
education courses specified by the department.
Sec. 703.205. REFUSING RENEWAL FOR FAILURE TO PAY
ADMINISTRATIVE PENALTY. The department may refuse to renew the
license of a person who fails to pay an administrative penalty
unless enforcement of the penalty is stayed or a court has ordered
that the administrative penalty is not owed.
SUBCHAPTER F. DISCIPLINARY ACTIONS
Sec. 703.251. GROUNDS FOR DISCIPLINARY ACTION. (a) The
commission or executive director may take disciplinary action
against or refuse to issue or renew a license of an applicant or
license holder who:
(1) violates this chapter or a rule adopted under this
chapter;
(2) submits false or misleading information to 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 commission or executive director may take
disciplinary action against or refuse to issue or renew a license of
an applicant or license holder if disciplinary action is taken by
another jurisdiction that affects the applicant's or license
holder's authority to practice lactation consulting, including a
suspension, revocation, or other action.
Sec. 703.252. REFUND. (a) Subject to Subsection (b), the
commission or executive director may order a license holder to pay a
refund to a consumer as provided in an agreed settlement, default
order, or commission order instead of or in addition to imposing an
administrative penalty against the license holder.
(b) The amount of a refund ordered may not exceed the amount
the consumer paid to the license holder for a service regulated by
this chapter. The commission or executive director may not require
payment of other damages or estimate harm in a refund order.
SUBCHAPTER G. PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 703.301. 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 person's license is
suspended or revoked; or
(2) in violation of a commission 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. 703.302. 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 executive director or a health authority
determines that a person has violated this chapter, the executive
director may institute an action described by Section 51.352.
Sec. 703.303. VENUE. (a) Venue for a civil action arising
out of the imposition of an administrative penalty is in the county
in which the defendant resides or 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. 703.304. 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.
Sec. 703.305. CEASE AND DESIST ORDER. A violation of a
cease and desist order issued by the executive director constitutes
grounds for imposing an administrative penalty.
SECTION 3. (a) As soon as practicable after the effective
date of this Act, the presiding officer of the Texas Commission of
Licensing and Regulation shall appoint the initial members to the
Lactation Consultant Advisory Board as required by Section 703.051,
Occupations Code, as added by this Act. In appointing the members,
the presiding officer shall appoint three members to terms expiring
January 31, 2023, three members to terms expiring January 31, 2025,
and three members to terms expiring January 31, 2027.
(b) Not later than June 1, 2022, the Texas Department of
Licensing and Regulation shall prescribe the forms and procedures
and the Lactation Consultant Advisory Board shall propose to the
Texas Commission of Licensing and Regulation the rules necessary to
implement Chapter 703, Occupations Code, as added by this Act.
(c) Notwithstanding Chapter 703, Occupations Code, as added
by this Act, a person is not required to hold a license under that
chapter before September 1, 2022.
(d) Subchapters F and G, Chapter 51, Occupations Code, do
not apply to conduct described by Section 703.151, Occupations
Code, as added by this Act, before September 1, 2022.
SECTION 4. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2021.
(b) Section 703.151, Occupations Code, and Subchapters F
and G, Chapter 703, Occupations Code, as added by this Act, take
effect September 1, 2022.