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.