88R5721 SHH-D
 
  By: Ortega H.B. No. 2057
 
 
 
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 Practice 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)  "International Board of Lactation Consultant
  Examiners" means the international certification body that confers
  the International Board Certified Lactation Consultant credential
  and is independently accredited by the National Commission of
  Certifying Agencies.
               (6)  "Lactation consultant" means a health care
  professional licensed under this chapter who performs services
  related to the clinical management of breastfeeding and lactation
  in a variety of settings for compensation.
         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, childbirth educator,
  breastfeeding and lactation educator or counselor, or community
  health worker providing educational services; 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, 2035.
  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 is an advanced practice registered
  nurse practicing 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 staggered six-year terms. 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 for a
  one-year term. 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
  include ethical requirements and be equivalent to national
  standards prescribed by the International Board of Lactation
  Consultant Examiners.
         (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
  patient, 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 for purposes of Chapter 552, Government Code.
  SUBCHAPTER D. LICENSE REQUIREMENTS
         Sec. 703.151.  LICENSE REQUIRED. (a) Unless the person
  holds a license issued under this chapter, a person may not use:
               (1)  the title "lactation consultant" or "registered
  lactation consultant";
               (2)  the letters "LC" or "RLC"; or
               (3)  any other words, letters, abbreviations, or
  insignia indicating or implying that the person is licensed under
  this chapter.
         (b)  The department shall issue a license to each person who
  fulfills the licensing requirements.
         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:
               (1)  has satisfied each requirement for basic lactation
  consulting education, including clinical and hands-on training;
               (2)  is credentialed as a lactation consultant by the
  International Board of Lactation Consultant Examiners; and
               (3)  has passed the comprehensive lactation consulting
  examination and jurisprudence examination required by this
  chapter.
         Sec. 703.153.  LICENSE APPLICATION.  A person may 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 the information required by commission
  rules.
         Sec. 703.154.  INITIAL LICENSE TERM. An initial lactation
  consultant license is valid for one year.
         Sec. 703.155.  EXAMINATION. (a)  The department shall:
               (1)  adopt standards for a comprehensive lactation
  consulting examination 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 shall recognize, prepare, administer, or
  arrange for the administration of an examination under this
  chapter, which may include accepting the results of a
  criterion-referenced, standardized national examination by the
  International Board of Lactation Consultant Examiners.
         Sec. 703.156.  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.  REQUIRED ATTENDANCE AT SPECIFIC LACTATION
  CONSULTING EDUCATION COURSES.  The department may assess the
  continuing education needs of lactation consultants and in
  accordance with commission rules may require lactation consultants
  to attend continuing lactation consulting education courses
  specified by the department.
         Sec. 703.204.  EVIDENCE OF CERTAIN CREDENTIALS.  An
  applicant for the renewal of a license under this chapter must
  provide evidence that the applicant is credentialed as a lactation
  consultant by the International Board of Lactation Consultant
  Examiners.
         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.
  SUBCHAPTER G.  PENALTIES AND ENFORCEMENT PROVISIONS
         Sec. 703.301.  CIVIL PENALTY. (a)  A person is liable to
  this state for a civil penalty if the person knowingly or
  intentionally practices lactation consulting in violation of this
  chapter or a commission order.
         (b)  A civil penalty under this section may not exceed $250
  for each violation. Each day of violation constitutes 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 for injunctive relief as described
  by Section 51.352.
         Sec. 703.303.  CRIMINAL PENALTY. (a) A person commits an
  offense if the person knowingly practices lactation consulting in
  violation of this chapter.
         (b)  An offense under this section is a Class C misdemeanor.
         Sec. 703.304.  CEASE AND DESIST ORDER. A violation of a
  cease and desist order issued by the executive director constitutes
  grounds for imposing an administrative penalty under Subchapter F,
  Chapter 51.
         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, 2025, three members to terms expiring January 31, 2027,
  and three members to terms expiring January 31, 2029.
         (b)  Notwithstanding Section 703.051(a)(1), Occupations
  Code, as added by this Act, a person who has practiced as a
  lactation consultant for the period required by that subdivision is
  eligible for appointment as an initial member of the Lactation
  Consultant Advisory Board regardless of whether the person holds a
  lactation consultant license issued under Chapter 703, Occupations
  Code, as added by this Act.
         SECTION 4.  Not later than June 1, 2024, the Texas Commission
  of Licensing and Regulation shall adopt the rules, procedures, and
  fees necessary to implement Chapter 703, Occupations Code, as added
  by this Act.
         SECTION 5.  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, 2024.
         SECTION 6.  (a)  Except as provided by Subsection (b) of
  this section, this Act takes effect September 1, 2023.
         (b)  Section 703.151, Occupations Code, and Subchapters F
  and G, Chapter 703, Occupations Code, as added by this Act, take
  effect September 1, 2024.