Texas 2023 - 88th Regular

Texas House Bill HB2057 Compare Versions

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1	1	88R5721 SHH-D
2	2	By: Ortega H.B. No. 2057
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 Practice 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) "International Board of Lactation Consultant
41	41	Examiners" means the international certification body that confers
42	42	the International Board Certified Lactation Consultant credential
43	43	and is independently accredited by the National Commission of
44	44	Certifying Agencies.
45	45	(6) "Lactation consultant" means a health care
46	46	professional licensed under this chapter who performs services
47	47	related to the clinical management of breastfeeding and lactation
48	48	in a variety of settings for compensation.
49	49	Sec. 703.003. APPLICABILITY. Unless the person uses the
50	50	title "lactation consultant" or "licensed lactation consultant" to
51	51	describe the person's activities, this chapter does not apply to:
52	52	(1) a person licensed in this state as a physician or
53	53	nurse;
54	54	(2) a health care professional licensed by this state
55	55	and operating within the scope of the person's license;
56	56	(3) a person acting as a paid or volunteer peer
57	57	counselor, La Leche League Leader, doula, childbirth educator,
58	58	breastfeeding and lactation educator or counselor, or community
59	59	health worker providing educational services; or
60	60	(4) a licensed midwife.
61	61	Sec. 703.004. APPLICATION OF SUNSET ACT. The Lactation
62	62	Consultant Advisory Board is subject to Chapter 325, Government
63	63	Code (Texas Sunset Act). Unless continued in existence as provided
64	64	by that chapter, the Lactation Consultant Advisory Board is
65	65	abolished and this chapter expires September 1, 2035.
66	66	SUBCHAPTER B. LACTATION CONSULTANT ADVISORY BOARD
67	67	Sec. 703.051. ADVISORY BOARD MEMBERSHIP. (a) The advisory
68	68	board consists of nine members appointed by the presiding officer
69	69	of the commission with the approval of the commission as follows:
70	70	(1) five lactation consultant members, each of whom
71	71	has at least three years' experience in the practice of lactation
72	72	consulting;
73	73	(2) one physician member who is certified by a
74	74	national professional organization of physicians that certifies:
75	75	(A) obstetricians and gynecologists;
76	76	(B) family practitioners; or
77	77	(C) pediatricians;
78	78	(3) one member who is an advanced practice registered
79	79	nurse practicing in obstetrics, pediatrics, or family practice; and
80	80	(4) two members who represent the public and are not
81	81	practicing or trained in a health care profession, at least one of
82	82	whom is a parent who has been assisted by a lactation consultant.
83	83	(b) Appointments to the advisory board shall be made without
84	84	regard to the race, color, disability, sex, religion, age, or
85	85	national origin of the appointee.
86	86	Sec. 703.052. DUTIES OF ADVISORY BOARD. The advisory board
87	87	shall provide advice and recommendations to the department on
88	88	technical matters relevant to the administration of this chapter.
89	89	Sec. 703.053. TERMS; VACANCIES. (a) Members of the
90	90	advisory board serve staggered six-year terms. The terms of three
91	91	members expire on January 31 of each odd-numbered year.
92	92	(b) If a vacancy occurs during a member's term, the
93	93	presiding officer of the commission, with the commission's
94	94	approval, shall appoint a replacement who meets the qualifications
95	95	for the vacant position to serve for the remainder of the term.
96	96	Sec. 703.054. PRESIDING OFFICER. The presiding officer of
97	97	the commission shall designate a public member of the advisory
98	98	board to serve as the presiding officer of the advisory board for a
99	99	one-year term. The presiding officer of the advisory board may vote
100	100	on any matter before the advisory board.
101	101	Sec. 703.055. MEETINGS. The advisory board shall meet at
102	102	the call of the presiding officer of the commission or the executive
103	103	director.
104	104	Sec. 703.056. APPLICABILITY OF OTHER LAW. Chapter 2110,
105	105	Government Code, does not apply to the composition or duration of
106	106	the advisory board or to the appointment of the advisory board's
107	107	presiding officer.
108	108	SUBCHAPTER C. POWERS AND DUTIES
109	109	Sec. 703.101. GENERAL POWERS AND DUTIES. (a) The executive
110	110	director shall administer and enforce this chapter.
111	111	(b) The commission shall adopt rules:
112	112	(1) prescribing the standards for the practice of
113	113	lactation consulting in this state;
114	114	(2) prescribing the type of courses and number of
115	115	hours required to meet the basic lactation consulting education
116	116	course and continuing lactation consulting education course
117	117	requirements;
118	118	(3) prescribing minimum standards for the approval and
119	119	revocation of approval of:
120	120	(A) basic lactation consulting education courses
121	121	and continuing lactation consulting education courses; and
122	122	(B) instructors or facilities offering basic
123	123	lactation consulting education courses and continuing lactation
124	124	consulting education courses;
125	125	(4) requiring lactation consultants to obtain each
126	126	patient's signature on a release advising the patient that
127	127	lactation consultation is not a substitute for conventional medical
128	128	care by a physician, including diagnosis, treatment, and well-child
129	129	care; and
130	130	(5) establishing requirements necessary to establish
131	131	eligibility for reciprocity for initial licensing under this
132	132	chapter.
133	133	(c) The standards prescribed under Subsection (b)(1) must
134	134	include ethical requirements and be equivalent to national
135	135	standards prescribed by the International Board of Lactation
136	136	Consultant Examiners.
137	137	(d) The department shall:
138	138	(1) implement rules governing:
139	139	(A) basic lactation consulting education courses
140	140	and continuing lactation consulting education courses; and
141	141	(B) approval of instructors or facilities
142	142	offering basic lactation consulting education courses and
143	143	continuing lactation consulting education courses;
144	144	(2) adopt and provide information about basic
145	145	lactation consulting resources and instructor manuals;
146	146	(3) enter into agreements necessary to administer this
147	147	chapter; and
148	148	(4) establish a program to license lactation
149	149	consultants as prescribed by commission rules.
150	150	Sec. 703.102. REPORTS ON LACTATION CONSULTING. (a) The
151	151	department shall prepare and publish reports on the practice of
152	152	lactation consulting in this state.
153	153	(b) The Department of State Health Services shall publish a
154	154	statistical report of breastfeeding initiation and continuation
155	155	rates.
156	156	Sec. 703.103. COMPLAINTS. (a) For purposes of Section
157	157	51.252, the commission shall adopt rules to provide for the release
158	158	of any relevant lactation consulting or medical record to the
159	159	department, without the consent of the lactation consultant's
160	160	patient, as necessary to conduct an investigation of a complaint.
161	161	(b) The department shall provide reasonable assistance to a
162	162	person who wishes to file a complaint with the department regarding
163	163	a person or activity regulated by this chapter.
164	164	Sec. 703.104. ROSTER. (a) The department shall maintain a
165	165	roster of each person licensed as a lactation consultant in this
166	166	state.
167	167	(b) The roster must contain for each person the information
168	168	required on the license form under this chapter and other
169	169	information the department determines necessary to accurately
170	170	identify each licensed lactation consultant. The information is
171	171	public information for purposes of Chapter 552, Government Code.
172	172	SUBCHAPTER D. LICENSE REQUIREMENTS
173	173	Sec. 703.151. LICENSE REQUIRED. (a) Unless the person
174	174	holds a license issued under this chapter, a person may not use:
175	175	(1) the title "lactation consultant" or "registered
176	176	lactation consultant";
177	177	(2) the letters "LC" or "RLC"; or
178	178	(3) any other words, letters, abbreviations, or
179	179	insignia indicating or implying that the person is licensed under
180	180	this chapter.
181	181	(b) The department shall issue a license to each person who
182	182	fulfills the licensing requirements.
183	183	Sec. 703.152. QUALIFICATIONS FOR INITIAL LICENSE. A person
184	184	is qualified to become a licensed lactation consultant under this
185	185	chapter if the person provides the department with documentary
186	186	evidence that the person:
187	187	(1) has satisfied each requirement for basic lactation
188	188	consulting education, including clinical and hands-on training;
189	189	(2) is credentialed as a lactation consultant by the
190	190	International Board of Lactation Consultant Examiners; and
191	191	(3) has passed the comprehensive lactation consulting
192	192	examination and jurisprudence examination required by this
193	193	chapter.
194	194	Sec. 703.153. LICENSE APPLICATION. A person may apply to
195	195	the department for a lactation consultant license in the manner and
196	196	on a form prescribed by the executive director. The application
197	197	must:
198	198	(1) be accompanied by a nonrefundable application fee;
199	199	and
200	200	(2) include the information required by commission
201	201	rules.
202	202	Sec. 703.154. INITIAL LICENSE TERM. An initial lactation
203	203	consultant license is valid for one year.
204	204	Sec. 703.155. EXAMINATION. (a) The department shall:
205	205	(1) adopt standards for a comprehensive lactation
206	206	consulting examination that an applicant must pass before an
207	207	initial license may be issued; and
208	208	(2) establish eligibility requirements for persons
209	209	taking a comprehensive lactation consulting examination.
210	210	(b) The department shall recognize, prepare, administer, or
211	211	arrange for the administration of an examination under this
212	212	chapter, which may include accepting the results of a
213	213	criterion-referenced, standardized national examination by the
214	214	International Board of Lactation Consultant Examiners.
215	215	Sec. 703.156. JURISPRUDENCE EXAMINATION. (a) The
216	216	department shall develop a jurisprudence examination to determine
217	217	an applicant's knowledge of this chapter, commission rules under
218	218	this chapter, and any other applicable laws of this state affecting
219	219	the applicant's lactation consulting practice. The department
220	220	shall administer the examination at least twice each calendar year.
221	221	(b) The commission shall adopt rules to implement this
222	222	section, including rules related to the development and
223	223	administration of the examination, examination fees, guidelines
224	224	for reexamination, grading the examination, and providing notice of
225	225	examination results.
226	226	SUBCHAPTER E. LICENSE RENEWAL
227	227	Sec. 703.201. APPLICATION FOR LICENSE RENEWAL. An
228	228	applicant for renewal of a license under this chapter shall apply in
229	229	the manner provided by Section 703.153.
230	230	Sec. 703.202. RENEWAL LICENSE TERM. A renewal license is
231	231	valid for two years.
232	232	Sec. 703.203. REQUIRED ATTENDANCE AT SPECIFIC LACTATION
233	233	CONSULTING EDUCATION COURSES. The department may assess the
234	234	continuing education needs of lactation consultants and in
235	235	accordance with commission rules may require lactation consultants
236	236	to attend continuing lactation consulting education courses
237	237	specified by the department.
238	238	Sec. 703.204. EVIDENCE OF CERTAIN CREDENTIALS. An
239	239	applicant for the renewal of a license under this chapter must
240	240	provide evidence that the applicant is credentialed as a lactation
241	241	consultant by the International Board of Lactation Consultant
242	242	Examiners.
243	243	Sec. 703.205. REFUSING RENEWAL FOR FAILURE TO PAY
244	244	ADMINISTRATIVE PENALTY. The department may refuse to renew the
245	245	license of a person who fails to pay an administrative penalty
246	246	unless enforcement of the penalty is stayed or a court has ordered
247	247	that the administrative penalty is not owed.
248	248	SUBCHAPTER F. DISCIPLINARY ACTIONS
249	249	Sec. 703.251. GROUNDS FOR DISCIPLINARY ACTION. (a) The
250	250	commission or executive director may take disciplinary action
251	251	against or refuse to issue or renew a license of an applicant or
252	252	license holder who:
253	253	(1) violates this chapter or a rule adopted under this
254	254	chapter;
255	255	(2) submits false or misleading information to the
256	256	department;
257	257	(3) is convicted of a misdemeanor involving moral
258	258	turpitude or a felony;
259	259	(4) uses alcohol or drugs intemperately;
260	260	(5) engages in unprofessional or dishonorable conduct
261	261	that may reasonably be determined to deceive or defraud the public;
262	262	(6) is unable to practice lactation consulting with
263	263	reasonable skill and safety because of illness, disability, or
264	264	psychological impairment;
265	265	(7) is determined by a court judgment to be mentally
266	266	impaired; or
267	267	(8) fails to practice lactation consulting in a manner
268	268	consistent with the public health and safety.
269	269	(b) The commission or executive director may take
270	270	disciplinary action against or refuse to issue or renew a license of
271	271	an applicant or license holder if disciplinary action is taken by
272	272	another jurisdiction that affects the applicant's or license
273	273	holder's authority to practice lactation consulting, including a
274	274	suspension, revocation, or other action.
275	275	SUBCHAPTER G. PENALTIES AND ENFORCEMENT PROVISIONS
276	276	Sec. 703.301. CIVIL PENALTY. (a) A person is liable to
277	277	this state for a civil penalty if the person knowingly or
278	278	intentionally practices lactation consulting in violation of this
279	279	chapter or a commission order.
280	280	(b) A civil penalty under this section may not exceed $250
281	281	for each violation. Each day of violation constitutes a separate
282	282	violation for purposes of penalty assessment. In determining the
283	283	amount of the penalty, the court shall consider:
284	284	(1) the person's history of previous violations;
285	285	(2) the seriousness of the violation;
286	286	(3) any hazard to the health and safety of the public;
287	287	and
288	288	(4) the demonstrated good faith of the person charged.
289	289	Sec. 703.302. INJUNCTIONS. (a) In this section, "health
290	290	authority" means a physician who administers state and local laws
291	291	regulating public health under Chapter 121, Health and Safety Code.
292	292	(b) If the executive director or a health authority
293	293	determines that a person has violated this chapter, the executive
294	294	director may institute an action for injunctive relief as described
295	295	by Section 51.352.
296	296	Sec. 703.303. CRIMINAL PENALTY. (a) A person commits an
297	297	offense if the person knowingly practices lactation consulting in
298	298	violation of this chapter.
299	299	(b) An offense under this section is a Class C misdemeanor.
300	300	Sec. 703.304. CEASE AND DESIST ORDER. A violation of a
301	301	cease and desist order issued by the executive director constitutes
302	302	grounds for imposing an administrative penalty under Subchapter F,
303	303	Chapter 51.
304	304	SECTION 3. (a) As soon as practicable after the effective
305	305	date of this Act, the presiding officer of the Texas Commission of
306	306	Licensing and Regulation shall appoint the initial members to the
307	307	Lactation Consultant Advisory Board as required by Section 703.051,
308	308	Occupations Code, as added by this Act. In appointing the members,
309	309	the presiding officer shall appoint three members to terms expiring
310	310	January 31, 2025, three members to terms expiring January 31, 2027,
311	311	and three members to terms expiring January 31, 2029.
312	312	(b) Notwithstanding Section 703.051(a)(1), Occupations
313	313	Code, as added by this Act, a person who has practiced as a
314	314	lactation consultant for the period required by that subdivision is
315	315	eligible for appointment as an initial member of the Lactation
316	316	Consultant Advisory Board regardless of whether the person holds a
317	317	lactation consultant license issued under Chapter 703, Occupations
318	318	Code, as added by this Act.
319	319	SECTION 4. Not later than June 1, 2024, the Texas Commission
320	320	of Licensing and Regulation shall adopt the rules, procedures, and
321	321	fees necessary to implement Chapter 703, Occupations Code, as added
322	322	by this Act.
323	323	SECTION 5. Subchapters F and G, Chapter 51, Occupations
324	324	Code, do not apply to conduct described by Section 703.151,
325	325	Occupations Code, as added by this Act, before September 1, 2024.
326	326	SECTION 6. (a) Except as provided by Subsection (b) of
327	327	this section, this Act takes effect September 1, 2023.
328	328	(b) Section 703.151, Occupations Code, and Subchapters F
329	329	and G, Chapter 703, Occupations Code, as added by this Act, take
330	330	effect September 1, 2024.