Bill Text: TX HB1072 | 2021-2022 | 87th Legislature | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-03-04 - Referred to Public Health [HB1072 Detail]
Download: Texas-2021-HB1072-Introduced.html
87R3084 DRS-D | ||
By: Ortega | H.B. No. 1072 |
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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; [ |
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(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. |