1-1     By:  Sibley                                           S.B. No. 1269
 1-2           (In the Senate - Filed March 7, 2001; March 12, 2001, read
 1-3     first time and referred to Committee on Health and Human Services;
 1-4     May 7, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 6, Nays 0; May 7, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1269                  By:  Sibley
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the licensing and regulation of clinical nutritionists;
1-11     providing penalties.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Subtitle M, Title 3, Occupations Code, is amended
1-14     by adding Chapter 703 to read as follows:
1-15                CHAPTER 703.  LICENSED CLINICAL NUTRITIONISTS
1-16                      SUBCHAPTER A.  GENERAL PROVISIONS
1-17           Sec. 703.001.  SHORT TITLE.  This chapter may be cited as the
1-18     Licensed Clinical Nutritionist Act.
1-19           Sec. 703.002.  DEFINITIONS.  In this chapter:
1-20                 (1)  "Board of health" means the Texas Board of Health.
1-21                 (2)  "Clinical nutrition" means the health professional
1-22     discipline that applies principles derived from current nutritional
1-23     knowledge and biochemical and physiological scientific knowledge to
1-24     promote optimal health.
1-25                 (3)  "Clinical nutrition practice" means the practice
1-26     of clinical nutrition according to the guidelines set forth in the
1-27     scope of practice of clinical nutrition adopted under this article.
1-28                 (4)  "Clinical nutritionist" means a health
1-29     professional who applies clinical nutrition principles.
1-30                 (5)  "Commissioner" means the commissioner of public
1-31     health.
1-32                 (6)  "Department" means the Texas Department of Health.
1-33                 (7)  "Institution of higher education" has the meaning
1-34     assigned by Section 61.003, Education Code.
1-35                 (8)  "Medical nutrition therapy" means the assessment
1-36     of a patient's nutritional status followed by nutritional therapies
1-37     when that assessment and therapy is prescribed by a physician and
1-38     is reimbursable under a health benefits plan.
1-39                 (9)  "Nutritional assessment" means the evaluation of
1-40     individual and group nutritional needs, recognizing biochemical
1-41     individuality, to determine factors necessary to restore or
1-42     maintain healthy physiological function.  The term includes the use
1-43     of appropriate tests and observations interpreted in terms of
1-44     optimal values and nutrition and lifestyle analysis to determine an
1-45     appropriate nutritional program, including:
1-46                       (A)  a case history;
1-47                       (B)  anthropometric measurements;
1-48                       (C)  physical signs; and
1-49                       (D)  biochemical data, including laboratory
1-50     tests.
1-51                 (10)  "Nutritional counseling" means communication of
1-52     the various aspects of clinical nutrition background information
1-53     and assessments, including:
1-54                       (A)  previously poor health habits, including
1-55     diet;
1-56                       (B)  evaluation of appropriate tests and
1-57     laboratory assessments to demonstrate individual differences that
1-58     produce a decline in good health; and
1-59                       (C)  the recommendation of an appropriate diet
1-60     and supplementation program, including micronutrients,
1-61     macronutrients, herbs, amino acids, trace elements, and
1-62     metabolites.
1-63                 (11)  "Nutritional supplements" include food, vitamins,
1-64     minerals, botanicals, nutraceuticals, glandulars, amino acids,
 2-1     trace elements, chemical supplements, homeopathic remedies,
 2-2     macronutrients, micronutrients, herbs, and metabolites designed to
 2-3     augment clinical deficiencies in the human body.
 2-4                 (12)  "Nutritionists board" means the Texas State Board
 2-5     of Examiners of Clinical Nutritionists.
 2-6                 (13)  "Provisionally licensed clinical nutritionist"
 2-7     means a person who holds a provisional license issued under this
 2-8     chapter.
 2-9                 (14)  "Supervision" means control exercised over a
2-10     provisionally licensed clinical nutritionist, student, assistant,
2-11     or technician working within the same facility as the supervising
2-12     clinical nutritionist.
2-13           Sec. 703.003.  CLINICAL NUTRITION PRACTICE.  (a)  Clinical
2-14     nutrition is a specialization in the science of nutrition that
2-15     requires an understanding of nutrition biochemistry that enables
2-16     the practitioner to competently assess and evaluate signs of
2-17     nutritional deficiency or imbalance, through the use or disuse of
2-18     specific foods, vitamins, minerals, herbs, amino acids, trace
2-19     elements, glandulars, or other substances as necessary to maintain
2-20     optimal health.
2-21           (b)  Clinical nutrition may be practiced through a
2-22     client-counselor relationship and requires knowledge of:
2-23                 (1)  basic concepts of human physiology derived from
2-24     medical and scientific literature;
2-25                 (2)  basic human anatomy derived from medical and
2-26     nutritional texts;
2-27                 (3)  nutrient roles and functions derived from medical
2-28     and scientific literature;
2-29                 (4)  human nutritional requirements to:
2-30                       (A)  provide individual client guidelines; and
2-31                       (B)  implement lifestyle modifications;
2-32                 (5)  the effects of nutritional imbalances, both
2-33     deficiencies and excesses, derived from clinical evaluation and
2-34     research findings;
2-35                 (6)  medical and scientific terminology;
2-36                 (7)  pharmacological and environmental effects on
2-37     nutritional status derived from findings from medical and
2-38     scientific literature;
2-39                 (8)  the effects of socioeconomic influence, food
2-40     selection, and food preparation on the nutritional status of
2-41     clients;
2-42                 (9)  the process of nutritional assessment and
2-43     evaluation through the use of appropriate clinical tests based on
2-44     previously collected data to document or confirm suspected
2-45     nutritional deviations or abnormalities;
2-46                 (10)  pertinent anatomical characteristics relevant to
2-47     nutritional status, including a client's weight, height, posture,
2-48     body fat, and musculature;
2-49                 (11)  the process of evaluation and interpretation of a
2-50     client's clinical data by careful analysis and application of
2-51     clinical judgment to formulate an appropriate nutritional protocol;
2-52                 (12)  nutritional counseling skills and case
2-53     management;
2-54                 (13)  referral practices and skills for referring the
2-55     client to another licensed health care practitioner; and
2-56                 (14)  office management, state and federal laws, and
2-57     liability insurance acquired by reading the state and federal
2-58     codes, statutes, and laws and seeking legal counsel.
2-59           (c)  Engaging in practice as a clinical nutritionist as
2-60     described by this chapter does not constitute the practice of
2-61     medicine as defined by state law.
2-62           Sec. 703.004.  SUNSET PROVISION.  The Texas State Board of
2-63     Examiners of Clinical Nutritionists is subject to Chapter 325,
2-64     Government Code (Texas Sunset Act).  Unless continued in existence
2-65     as provided by that chapter, the nutritionists board is abolished
2-66     and this chapter expires September 1, 2005.
2-67         SUBCHAPTER B.  BOARD OF EXAMINERS OF CLINICAL NUTRITIONISTS
2-68           Sec. 703.051.  BOARD; MEMBERSHIP.  (a)  The Texas State Board
2-69     of Examiners of Clinical Nutritionists consists of nine members
 3-1     appointed by the governor with the advice and consent of the senate
 3-2     as follows:
 3-3                 (1)  three members who are clinical nutritionists who
 3-4     hold a license issued under this chapter, who do not have an
 3-5     additional primary practice, and who have been licensed under this
 3-6     chapter for at least the two years preceding the person's
 3-7     appointment to the nutitionists board;
 3-8                 (2)  three members who are health care practitioners,
 3-9     as described by Subsection (d) of this section; and
3-10                 (3)  three members who represent the public.
3-11           (b)  Associate clinical nutritionists are not eligible for
3-12     appointment to the nutritionists board.
3-13           (c)  Appointments to the nutritionists board shall be made
3-14     without regard to the race, color, disability, sex, religion, age,
3-15     or national origin of the appointee.
3-16           (d)  The professional discipline of clinical nutrition
3-17     includes six primary areas of expertise:  clinical, educational,
3-18     research, management, consultation, and community service.  In
3-19     appointing health care practitioners to the nutritionists board,
3-20     the governor shall consider the broad spectrum of health care
3-21     practitioners who practice clinical nutrition in those areas of
3-22     expertise and attempt to achieve a continuing balance of
3-23     representation among those practitioners.  Health care
3-24     practitioners eligible for appointment under Subsection (a)(2)
3-25     include physicians, chiropractors, dentists, pharmacists,
3-26     registered nurses, and any other health care practitioners licensed
3-27     by this state whose primary practices are other than as clinical
3-28     nutritionists.  To be eligible for appointment under Subsection
3-29     (a)(2), the appointee must have at least two years of experience in
3-30     clinical nutrition practice, clinical nutrition education, or
3-31     clinical nutrition research.
3-32           Sec. 703.052.  ELIGIBILITY OF PUBLIC MEMBERS.  A person is
3-33     not eligible for appointment as a public member of the
3-34     nutritionists board if the person or the person's spouse:
3-35                 (1)  is registered, certified, or licensed by a
3-36     regulatory agency in the field of clinical nutrition;
3-37                 (2)  is employed by or participates in the management
3-38     of a business entity or other organization regulated by or
3-39     receiving money from the nutritionists board;
3-40                 (3)  owns or controls, directly or indirectly, more
3-41     than a 10 percent interest in a business entity or other
3-42     organization regulated by or receiving money from the nutritionists
3-43     board; or
3-44                 (4)  uses or receives a substantial amount of tangible
3-45     goods, services, or funds from the nutritionists board, other than
3-46     compensation or reimbursement authorized by law for nutritionists
3-47     board membership, attendance, or expenses.
3-48           Sec. 703.053.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS.  (a)  In
3-49     this section, "Texas trade association" means a nonprofit,
3-50     cooperative, and voluntarily joined association of business or
3-51     professional competitors in this state designed to assist its
3-52     members and its industry or profession in dealing with mutual
3-53     business or professional problems and in promoting their common
3-54     interest.
3-55           (b)  An officer, employee, or paid consultant of a Texas
3-56     trade association in the field of clinical nutrition may not be a
3-57     nutritionists board member and may not be an employee of the
3-58     nutritionists board who is exempt from the state's position
3-59     classification plan or is compensated at or above the amount
3-60     prescribed by the General Appropriations Act for step 1, salary
3-61     group A17, of the position classification salary schedule.
3-62           (c)  A person who is the spouse of an officer, manager, or
3-63     paid consultant of a Texas trade association in the field of
3-64     clinical nutrition may not be a nutritionists board member and may
3-65     not be an employee of the nutritionists board who is exempt from
3-66     the state's position classification plan or is compensated at or
3-67     above the amount prescribed by the General Appropriations Act for
3-68     step 1, salary group A17, of the position classification salary
3-69     schedule.
 4-1           (d)  A person may not serve as a member of the nutritionists
 4-2     board or act as the general counsel to the nutritionists board if
 4-3     the person is required to register as a lobbyist under Chapter 305,
 4-4     Government Code, because of the person's activities for
 4-5     compensation on behalf of a profession related to the operation of
 4-6     the nutritionists board.
 4-7           Sec. 703.054.  TERMS.  Members of the nutritionists board
 4-8     serve staggered six-year terms, with three members' terms expiring
 4-9     on February 1 of each odd-numbered year.
4-10           Sec. 703.055.  GROUNDS FOR REMOVAL FROM NUTRITIONISTS BOARD.
4-11     (a)  It is a ground for removal from the nutritionists board that a
4-12     member:
4-13                 (1)  does not have at the time of appointment the
4-14     qualifications required for appointment to the nutritionists board;
4-15                 (2)  does not maintain during service on the
4-16     nutritionists board the qualifications required for appointment to
4-17     the nutritionists board;
4-18                 (3)  cannot, because of illness or disability,
4-19     discharge the member's duties for a substantial part of the
4-20     member's term; or
4-21                 (4)  is absent from more than half of the regularly
4-22     scheduled nutritionists board meetings that the member is eligible
4-23     to attend during a calendar year, unless the absence is approved by
4-24     a majority vote of the nutritionists board.
4-25           (b)  The validity of an action of the nutritionists board is
4-26     not affected by the fact that it is taken when a ground for removal
4-27     of a nutritionists board member exists.
4-28           (c)  If the executive director has knowledge that a potential
4-29     ground for removal exists, the executive director shall notify the
4-30     presiding officer of the nutritionists board of the potential
4-31     ground.  The presiding officer shall then notify the governor that
4-32     a potential ground for removal exists.
4-33           Sec. 703.056.  PER DIEM; REIMBURSEMENT.  (a)  Each member of
4-34     the nutritionists board is entitled to receive a per diem at the
4-35     rate set by the legislature for state employees in the General
4-36     Appropriations Act for each day the member engages in the business
4-37     of the nutritionists board.
4-38           (b)  A member is entitled to reimbursement for transportation
4-39     expenses as provided by the General Appropriations Act.
4-40           Sec. 703.057.  OFFICERS.  (a)  The governor shall designate
4-41     one member of the nutritionists board to serve as presiding
4-42     officer.  The presiding officer serves at the will of the governor.
4-43           (b)  The nutritionists board shall elect other officers from
4-44     its membership at the first regular nutritionists board meeting
4-45     each year.
4-46           Sec. 703.058.  MEETINGS.  The nutritionists board shall hold
4-47     at least two regular meetings each year as provided by rules
4-48     adopted by the nutritionists board.
4-49           Sec. 703.059.  TRAINING.  (a)  Before a nutritionists board
4-50     member may assume the member's duties and before the member may be
4-51     confirmed by the senate, the member must complete at least one
4-52     course of a training program established by the nutritionists board
4-53     under this section.
4-54           (b)  The training program established by the nutritionists
4-55     board must provide information to a participant regarding:
4-56                 (1)  this chapter;
4-57                 (2)  the programs approved by the nutritionists board;
4-58                 (3)  the role and functions of the nutritionists board;
4-59                 (4)  the rules of the nutritionists board, with an
4-60     emphasis on the rules that relate to disciplinary and investigatory
4-61     authority;
4-62                 (5)  the current budget for the nutritionists board;
4-63                 (6)  the results of the most recent formal audit of the
4-64     nutritionists board;
4-65                 (7)  the requirements of Chapters 551, 552, 2001, and
4-66     2002, Government Code;
4-67                 (8)  the requirements of the conflict-of-interest laws
4-68     and other laws relating to public officials; and
4-69                 (9)  any applicable ethics policies adopted by the
 5-1     nutritionists board or the Texas Ethics Commission.
 5-2           (c)  In developing the training program, the nutritionists
 5-3     board shall consult with the governor's office, the attorney
 5-4     general's office, and the Texas Ethics Commission.
 5-5           (d)  If another state agency is given the authority to
 5-6     establish the training requirements, the nutritionists board shall
 5-7     use that training rather than develop its own program.
 5-8               SUBCHAPTER C.  EXECUTIVE DIRECTOR AND PERSONNEL
 5-9           Sec. 703.101.  EXECUTIVE DIRECTOR.  The commissioner, with
5-10     the advice and consent of the nutritionists board, shall appoint an
5-11     executive director for the nutritionists board.  The executive
5-12     director must be an employee of the department.
5-13           Sec. 703.102.  EXECUTIVE DIRECTOR POWERS AND DUTIES.  In
5-14     addition to other duties prescribed by this chapter and by the
5-15     department, the executive director shall:
5-16                 (1)  administer licensing activities for the
5-17     nutritionists board;
5-18                 (2)  keep full and accurate minutes of the transactions
5-19     and proceedings of the nutritionists board;
5-20                 (3)  serve as custodian of the files and records of the
5-21     nutritionists board;
5-22                 (4)  prepare and recommend to the nutritionists board
5-23     plans and procedures necessary to implement the purposes and
5-24     objectives of this chapter, including rules and proposals on
5-25     administrative procedures;
5-26                 (5)  exercise general supervision over persons employed
5-27     by the department in the administration of this chapter;
5-28                 (6)  investigate complaints and present formal
5-29     complaints;
5-30                 (7)  attend all meetings of the nutritionists board as
5-31     a nonvoting participant;
5-32                 (8)  handle the correspondence of the nutritionists
5-33     board; and
5-34                 (9)  obtain, assemble, or prepare reports and
5-35     information as directed or authorized by the nutritionists board.
5-36           Sec. 703.103.  PERSONNEL AND FACILITIES.  (a)  The department
5-37     shall provide the basic personnel and facilities required to
5-38     administer this chapter.  The department personnel administering
5-39     this chapter act as agents of the nutritionists board.
5-40           (b)  The department by agreement may secure services as it
5-41     considers necessary to administer this chapter, and provide
5-42     compensation for those services.
5-43           (c)  The department may employ, on a full-time or part-time
5-44     basis, the professional consultants, technical assistants, and
5-45     employees necessary to administer this chapter.
5-46           Sec. 703.104. DIVISION OF RESPONSIBILITIES.  The
5-47     nutritionists board shall develop and implement policies that
5-48     clearly define the respective responsibilities of the nutritionists
5-49     board and the staff of the nutritionists board.
5-50           Sec. 703.105.  QUALIFICATIONS AND STANDARDS OF CONDUCT
5-51     INFORMATION.  The nutritionists board shall provide, as often as
5-52     necessary, to its members and employees information regarding
5-53     their:
5-54                 (1)  qualifications for office or employment under this
5-55     chapter; and
5-56                 (2)  responsibilities under applicable laws relating to
5-57     standards of conduct for state officers or employees.
5-58           Sec. 703.106.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
5-59     (a)  The executive director or the executive director's designee
5-60     shall prepare and maintain a written policy statement to ensure
5-61     implementation of an equal employment opportunity program under
5-62     which all personnel decisions are made without regard to race,
5-63     color, disability, sex, religion, age, or national origin.  The
5-64     policy statement must include:
5-65                 (1)  personnel policies, including policies relating to
5-66     recruitment, evaluation, selection, training, and promotion of
5-67     personnel, that are in compliance with Chapter 21, Labor Code;
5-68                 (2)  a comprehensive analysis of the nutritionists
5-69     board workforce that meets federal and state guidelines;
 6-1                 (3)  procedures by which a determination can be made of
 6-2     significant underuse in the board workforce of all persons for whom
 6-3     federal or state guidelines encourage a more equitable balance; and
 6-4                 (4)  reasonable methods to appropriately address those
 6-5     areas of underuse.
 6-6           (b)  A policy statement prepared under Subsection (a) must:
 6-7                 (1)  cover an annual period;
 6-8                 (2)  be updated annually;
 6-9                 (3)  be reviewed by the state Commission on Human
6-10     Rights for compliance with Subsection (a)(1); and
6-11                 (4)  be filed with the governor.
6-12           (c)  The governor shall deliver a biennial report to the
6-13     legislature based on the information received under Subsection (b).
6-14     The report may be made separately or as part of other biennial
6-15     reports to the legislature.
6-16           Sec. 703.107.  CAREER LADDER PROGRAM; PERFORMANCE
6-17     EVALUATIONS.  (a)  The executive director or the executive
6-18     director's designee shall develop an intra-agency career ladder
6-19     program.  The program must require intra-agency posting of all
6-20     nonentry level positions concurrently with any public posting.
6-21           (b)  The executive director or the executive director's
6-22     designee shall develop a system of annual performance evaluations
6-23     based on measurable job tasks.  All merit pay for nutritionists
6-24     board employees must be based on the system established under this
6-25     subsection.
6-26                      SUBCHAPTER D.  POWERS AND DUTIES
6-27           Sec. 703.151.  GENERAL POWERS AND DUTIES OF NUTRITIONISTS
6-28     BOARD.  The nutritionists board shall:
6-29                 (1)  adopt an official seal;
6-30                 (2)  adopt and publish a code of ethics;
6-31                 (3)  establish the qualifications and fitness of
6-32     applicants for licenses, including renewed and reciprocal licenses;
6-33                 (4)  assess administrative penalties, revoke, suspend,
6-34     or deny a license, probate a license suspension, or reprimand a
6-35     license holder for a violation of this chapter, the code of ethics,
6-36     or the rules of the nutritionists board;
6-37                 (5)  establish reasonable and necessary fees to
6-38     administer this chapter; and
6-39                 (6)  approve training programs.
6-40           Sec. 703.152.  GENERAL RULEMAKING AUTHORITY.  (a)  The
6-41     nutritionists board may adopt rules as necessary to implement this
6-42     chapter.
6-43           (b)  In adopting rules, the nutritionists board shall
6-44     consider the rules and procedures of the board of health and the
6-45     department and shall adopt procedural rules consistent with similar
6-46     rules and procedures of those entities.
6-47           Sec. 703.153.  RULES RESTRICTING ADVERTISING OR COMPETITIVE
6-48     BIDDING.  (a)  The nutritionists board may not adopt a rule
6-49     restricting advertising or competitive bidding by a person
6-50     regulated by the nutritionists board except to prohibit a false,
6-51     misleading, or deceptive practice.
6-52           (b)  The nutritionists board may not include in rules to
6-53     prohibit false, misleading, or deceptive practices by a person
6-54     regulated by the nutritionists board a rule that:
6-55                 (1)  restricts the person's use of any medium for
6-56     advertising;
6-57                 (2)  restricts the person's personal appearance or use
6-58     of the person's voice in an advertisement;
6-59                 (3)  relates to the size or duration of an
6-60     advertisement by the person; or
6-61                 (4)  restricts the use of a trade name in advertising
6-62     by the person.
6-63           Sec. 703.154.  FEES.  The nutritionists board by rule shall
6-64     set  fees in amounts reasonable and necessary to cover the cost of
6-65     administering this chapter.
6-66           Sec. 703.155.  FUNDS.  The department shall receive and
6-67     account for money received and funds obtained under this chapter.
6-68           Sec. 703.156.  SEAL.  (a)  The nutritionists board by rule
6-69     may require a license holder to:
 7-1                 (1)  obtain a seal authorized by the nutritionists
 7-2     board, bearing the license holder's name and the legend "Licensed
 7-3     Clinical Nutritionist"; and
 7-4                 (2)  affix the seal to formal documentation of
 7-5     nutrition services provided by a license holder.
 7-6           (b)  If the nutritionists board adopts rules under Subsection
 7-7     (a), the rules must require a license holder to comply with
 7-8     Subsection (a)(2) by maintaining a facsimile of the license
 7-9     holder's seal on file at the location where services are provided
7-10     if:
7-11                 (1)  the services are provided:
7-12                       (A)  in a facility licensed under the Health and
7-13     Safety Code;
7-14                       (B)  on behalf of a local, state, or federal
7-15     government agency; or
7-16                       (C)  under other circumstances determined
7-17     reasonable and necessary by the nutritionists board; and
7-18                 (2)  the facsimile is maintained on file at all times
7-19     during which the services are provided.
7-20           Sec. 703.157.  POWERS AND DUTIES OF BOARD OF HEALTH.  To
7-21     implement this chapter, the board of health:
7-22                 (1)  shall request and receive any necessary assistance
7-23     from state institutions of higher education or other state
7-24     agencies;
7-25                 (2)  shall prepare information of consumer interest
7-26     describing the regulatory functions of the board of examiners of
7-27     clinical nutritionists, the procedures by which consumer complaints
7-28     are filed and resolved, and the profession of clinical nutrition;
7-29                 (3)  shall prepare a registry of licensed clinical
7-30     nutritionists, licensed associate clinical nutritionists, and
7-31     persons holding provisional or temporary licenses under this
7-32     chapter, and make this information available to the public, license
7-33     holders, and appropriate state agencies; and
7-34                 (4)  may request the attorney general or the
7-35     appropriate county or district attorney to institute a suit to
7-36     enjoin a violation of this chapter in addition to any other action,
7-37     proceeding, or remedy authorized by law.
7-38                 SUBCHAPTER E.  PUBLIC INTEREST INFORMATION
7-39                          AND COMPLAINT PROCEDURES
7-40           Sec. 703.201.  PUBLIC INTEREST INFORMATION.  (a)  The
7-41     nutritionists board shall prepare information of public interest
7-42     describing the functions of the nutritionists board and the
7-43     nutritionists board's procedures by which complaints are filed with
7-44     and resolved by the nutritionists board.
7-45           (b)  The nutritionists board shall make the information
7-46     available to the public and appropriate state agencies.
7-47           Sec. 703.202.  COMPLAINTS.  (a)  The nutritionists board by
7-48     rule shall establish methods by which consumers and service
7-49     recipients are notified of the name, mailing address, and telephone
7-50     number of the nutritionists board for the purpose of directing
7-51     complaints to the nutritionists board.  The nutritionists board may
7-52     provide for that notification:
7-53                 (1)  on each registration form, application, or written
7-54     contract for services of a person regulated by the nutritionists
7-55     board;
7-56                 (2)  on a sign prominently displayed in the place of
7-57     business of each person regulated by the nutritionists board; or
7-58                 (3)  in a bill for services provided by a person
7-59     regulated by the nutritionists board.
7-60           (b)  The nutritionists board shall list along with its
7-61     regular telephone number any toll-free telephone number established
7-62     under state law that may be called to present a complaint about a
7-63     health professional.
7-64           Sec. 703.203.  RECORDS OF COMPLAINTS.  (a)  The nutritionists
7-65     board shall keep an information file on each complaint filed with
7-66     the nutritionists board.  The file must include:
7-67                 (1)  the name of each person contacted in relation to
7-68     the complaint;
7-69                 (2)  a summary of the results of the review or
 8-1     investigation of the complaint;
 8-2                 (3)  an explanation of the reason the file was closed,
 8-3     if the nutritionists board closed the file without taking action
 8-4     other than to investigate the complaint; and
 8-5                 (4)  other relevant information.
 8-6           (b)  The nutritionists board shall provide to the person
 8-7     filing the complaint and to each person who is a subject of the
 8-8     complaint a copy of the nutritionists board's policies and
 8-9     procedures relating to complaint investigation and resolution.
8-10           (c)  The nutritionists board, at least quarterly until final
8-11     disposition of the complaint, shall notify the person filing the
8-12     complaint and each person who is a subject of the complaint of the
8-13     status of the complaint unless the notice would jeopardize an
8-14     undercover investigation.
8-15           (d)  The nutritionists board shall review a complaint
8-16     regarding:
8-17                 (1)  incompetency, misconduct, gross negligence, fraud,
8-18     misrepresentation, or dishonesty in the performance of the
8-19     functions or duties of a license holder; and
8-20                 (2)  the use of any controlled substance or drug or the
8-21     use of alcoholic beverages to an extent that the use impairs a
8-22     person's ability to perform the work of a clinical nutritionist.
8-23           Sec. 703.204.  GENERAL RULES REGARDING COMPLAINT
8-24     INVESTIGATION AND DISPOSITION.  (a)  The nutritionists board shall
8-25     adopt rules concerning the investigation of a complaint filed with
8-26     the nutritionists board.  The rules adopted under this subsection
8-27     shall:
8-28                 (1)  distinguish between categories of complaints;
8-29                 (2)  ensure that a complaint is not dismissed without
8-30     appropriate consideration;
8-31                 (3)  require that the nutritionists board be advised of
8-32     a complaint that is dismissed and that a letter be sent to the
8-33     person who filed the complaint explaining the action taken on the
8-34     dismissed complaint;
8-35                 (4)  ensure that the person who filed the complaint has
8-36     an opportunity to explain the allegations made in the complaint;
8-37     and
8-38                 (5)  prescribe guidelines concerning the categories of
8-39     complaints that require the use of a department investigator and
8-40     the procedures for the nutritionists board to obtain the services
8-41     of a department investigator.
8-42           (b)  The nutritionists board shall:
8-43                 (1)  dispose of each complaint in a timely manner; and
8-44                 (2)  establish a schedule for conducting each phase of
8-45     a complaint that is under the control of the nutritionists board
8-46     not later than the 30th day after the date the complaint is
8-47     received by the nutritionists board.
8-48           (c)  Each party to the complaint shall be notified of the
8-49     projected time requirements for pursuing the complaint.  Each party
8-50     shall be notified of any change in the schedule established under
8-51     Subsection (b)(2) not later than the seventh day after the date the
8-52     change is made.
8-53           (d)  The executive director shall notify the nutritionists
8-54     board of a complaint that is not resolved in the time prescribed by
8-55     the nutritionists board for resolving the complaint so that the
8-56     nutritionists board may take necessary action on the complaint.
8-57           Sec. 703.205.  PUBLIC PARTICIPATION.  (a)  The nutritionists
8-58     board shall develop and implement policies that provide the public
8-59     with a reasonable opportunity to appear before the nutritionists
8-60     board and to speak on any issue under the jurisdiction of the
8-61     nutritionists board.
8-62           (b)  The nutritionists board shall prepare and maintain a
8-63     written plan that describes how a person who does not speak English
8-64     can be provided reasonable access to the nutritionists board's
8-65     programs.
8-66                     SUBCHAPTER F.  LICENSE REQUIREMENTS
8-67           Sec. 703.251.  LICENSE REQUIRED; EXEMPTIONS.  (a)  Except as
8-68     provided by Subsection (b), a person may not use the title of or
8-69     advertise services as a clinical nutritionist or associate clinical
 9-1     nutritionist unless the person holds a license issued under this
 9-2     chapter.
 9-3           (b)  This chapter does not prohibit a person from providing
 9-4     free oral nutritional information as an operator or employee of a
 9-5     health food store or business that sells health products, including
 9-6     dietary supplements, foods, or food materials, or disseminating
 9-7     written nutritional information in connection with the distribution
 9-8     of those products.  This chapter does not prohibit or limit any
 9-9     person from conducting a class or seminar or from giving a speech
9-10     related to nutrition.  This chapter does not apply to a health care
9-11     practitioner licensed under another law, including a physician,
9-12     dentist, chiropractor, pharmacist, registered nurse, or licensed
9-13     vocational nurse, who provides nutritional services if:
9-14                 (1)  the activities are permitted or not prohibited by
9-15     the law under which the health care practitioner is licensed; and
9-16                 (2)  the health care practitioner does not represent
9-17     that the person is a licensed clinical nutritionist or licensed
9-18     associate clinical nutritionist.
9-19           Sec. 703.252.  LICENSE APPLICATION.  (a)  Each applicant for
9-20     a clinical nutritionist license must submit a sworn application,
9-21     accompanied by the application fee.  The applicant must specify the
9-22     category of license for which the person is applying.
9-23           (b)  The nutritionists board shall prescribe the application
9-24     form and may by rule establish dates by which applications and fees
9-25     must be received.  The rules must be consistent with present rules
9-26     of the department related to application dates of other licenses.
9-27           (c)  Each license application must be accompanied by proof of
9-28     liability insurance coverage:
9-29                 (1)  issued by an insurer authorized by the Texas
9-30     Department of Insurance to engage in the business of liability
9-31     insurance in this state; and
9-32                 (2)  in amounts prescribed by the nutritionists board
9-33     as appropriate for the category of license for which the person is
9-34     applying.
9-35           Sec. 703.253.  EXAMINATION.  (a)  Except as provided by
9-36     Subsection (c), an applicant must pass a competency examination to
9-37     qualify for a license under this chapter.
9-38           (b)  The nutritionists board by rule may adopt an examination
9-39     given by an approved scientific nutritionists board of clinical
9-40     nutritionist experts, instead of an examination prepared by the
9-41     nutritionists board.
9-42           (c)  The nutritionists board may waive the examination
9-43     requirement for an applicant who, at the time of application, is
9-44     registered as a registered or certified clinical nutritionist or
9-45     associate clinical nutritionist by the Commission on Clinical
9-46     Nutritionist Registration or another professional certification
9-47     board recognized by the nutritionists board.
9-48           (d)  An examination required under this section must be
9-49     validated by an independent testing professional.
9-50           Sec. 703.254.  QUALIFICATIONS FOR EXAMINATION.  (a)  To
9-51     qualify for the licensed clinical nutritionist examination under
9-52     this chapter, an applicant must:
9-53                 (1)  possess, at a minimum, a baccalaureate or
9-54     postbaccalaureate degree, conferred by an accredited institution of
9-55     higher education, with:
9-56                       (A)  a course of study that includes prescribed
9-57     core courses in science and human nutrition; or
9-58                       (B)  an equivalent course of study approved by
9-59     the nutritionists board that includes prescribed core courses in
9-60     science and human nutrition;
9-61                 (2)  have completed an internship or preplanned,
9-62     documented, professional experience program in clinical nutrition
9-63     practice of not less than 900 hours under the supervision of a
9-64     licensed clinical nutritionist or a licensed health care
9-65     practitioner who provides nutritionists board-approved training in
9-66     the field of clinical nutrition; and
9-67                 (3)  have completed:
9-68                       (A)  a postgraduate program in clinical nutrition
9-69     approved by the nutritionists board; or
 10-1                      (B)  a master's program in clinical nutrition
 10-2    from an approved educational institution.
 10-3          (b)  To qualify for the licensed associate clinical
 10-4    nutritionist examination under this chapter, an applicant must:
 10-5                (1)  possess a two-year associates degree in nutrition
 10-6    science, or an equivalent degree, conferred by an accredited
 10-7    institution of higher education, with:
 10-8                      (A)  a course of study that includes prescribed
 10-9    core courses in science and nutrition; or
10-10                      (B)  an equivalent course of study approved by
10-11    the nutritionists board; and
10-12                (2)  have completed an internship or preplanned,
10-13    documented, professional experience program in clinical nutrition
10-14    practice of not less than 900 hours under the supervision of a
10-15    licensed clinical nutritionist or a licensed health care
10-16    practitioner who provides nutritionists board-approved training in
10-17    the field of clinical nutrition.
10-18          (c)  A licensed physician, dentist, chiropractor, pharmacist,
10-19    or registered nurse is exempt from the requirements of Subsection
10-20    (a).
10-21          Sec. 703.255.  INVESTIGATION.  (a)  Not later than the 45th
10-22    day after the date a properly submitted and timely application is
10-23    received and not later than the 30th day before the next
10-24    examination date, the department shall notify an applicant in
10-25    writing of the receipt and investigation of the applicant's
10-26    application and any other relevant evidence relating to applicant
10-27    qualifications established by the nutritionists board rule.
10-28          (b)  The notice must state whether the applicant has
10-29    qualified for examination based on the application and other
10-30    submitted evidence.  If the applicant has not qualified, the notice
10-31    must state the reasons for the applicant's failure to qualify.
10-32          Sec. 703.256.  EXAMINATION RESULTS.  (a)  The nutritionists
10-33    board shall notify each examinee of the results of the examination
10-34    not later than the 30th day after the date the examination is
10-35    administered.
10-36          (b)  If the examination is graded or reviewed by a testing
10-37    service:
10-38                (1)  the nutritionists board shall notify the person of
10-39    the results of the examination not later than the 14th day after
10-40    the date the nutritionists board receives the results from the
10-41    testing service; and
10-42                (2)  if notice of the examination results will be
10-43    delayed for longer than 90 days after the examination date, the
10-44    nutritionists board shall notify the person of the reason for the
10-45    delay before the 90th day.
10-46          (c)  The nutritionists board may require a testing service to
10-47    notify a person of the results of the person's examination.
10-48          (d)  If requested in writing by a person who fails the
10-49    examination, the nutritionists board shall furnish the person with
10-50    an analysis of the person's performance on the examination.
10-51          Sec. 703.257.  REEXAMINATION.  An applicant who fails the
10-52    examination three times must provide evidence to the nutritionists
10-53    board that the applicant has successfully completed credit hours in
10-54    the applicant's areas of weakness before the applicant may apply
10-55    for reexamination.
10-56          Sec. 703.258.  QUALIFIED PERSON ENTITLED TO LICENSE.  The
10-57    nutritionists board shall issue the appropriate clinical
10-58    nutritionist license under this chapter to a person who meets the
10-59    qualifications for the license.  The license must specify on its
10-60    face the category under which the person is licensed.
10-61          Sec. 703.259.  PROVISIONAL LICENSE.  (a)  The nutritionists
10-62    board may issue a license to use the title "provisionally licensed
10-63    clinical nutritionist" to an applicant who files an application,
10-64    pays an application fee, and submits evidence of successful
10-65    completion of the educational requirements under Section 703.254.
10-66          (b)  A provisionally licensed clinical nutritionist must
10-67    practice under the supervision and direction of a licensed clinical
10-68    nutritionist.  The supervising licensed clinical nutritionist must
10-69    sign the application.
 11-1          (c)  A provisional license expires on the first anniversary
 11-2    of the date of issuance and, if the supervising licensed clinical
 11-3    nutritionist signs the renewal application, may be renewed annually
 11-4    not more than twice by complying with the renewal procedures under
 11-5    Section 703.301.
 11-6          (d)  A provisionally licensed clinical nutritionist shall
 11-7    comply with Sections 703.351 and 703.352.
 11-8          Sec. 703.260.  TEMPORARY LICENSE.  (a)  On receipt of an
 11-9    application and payment of an application fee, the nutritionists
11-10    board may grant a temporary license to an applicant who:
11-11                (1)  is licensed in good standing as a clinical
11-12    nutritionist in another state that has licensing requirements that
11-13    are substantially equivalent to the requirements of this chapter;
11-14                (2)  has passed a national or other examination
11-15    recognized by the nutritionists board relating to clinical
11-16    nutrition; and
11-17                (3)  is sponsored by a person licensed by the
11-18    nutritionists board under this chapter with whom the temporary
11-19    license holder may practice.
11-20          (b)  The nutritionists board may waive the requirement of
11-21    Subsection (a)(3) if the nutritionists board determines that
11-22    compliance with that provision is a hardship to the applicant.
11-23          (c)  A temporary license is valid until the date the
11-24    nutritionists board approves or denies the temporary license
11-25    holder's application for a license.  The nutritionists board shall
11-26    issue a license under this chapter to the holder of a temporary
11-27    license if:
11-28                (1)  the temporary license holder passes the competency
11-29    examination required by Section 703.253;
11-30                (2)  the nutritionists board verifies that the
11-31    temporary license holder meets the academic and experience
11-32    requirements for a license under this chapter; and
11-33                (3)  the temporary license holder satisfies any other
11-34    license requirements under this chapter.
11-35          (d)  The nutritionists board must complete the processing of
11-36    a temporary license holder's application for a license not later
11-37    than the 180th day after the date the nutritionists board issues
11-38    the temporary license.  The nutritionists board may extend this
11-39    deadline to receive pending examination results.
11-40          Sec. 703.261.  INACTIVE STATUS.  The nutritionists board by
11-41    rule may provide for a license holder to place the person's license
11-42    on inactive status.  The nutritionists board by rule shall provide
11-43    for a time limit for a license to remain on inactive status.
11-44                      SUBCHAPTER G.  LICENSE RENEWAL
11-45          Sec. 703.301.  LICENSE RENEWAL.  The nutritionists board
11-46    shall renew the license of a qualified clinical nutritionist in
11-47    good standing who:
11-48                (1)  returns a completed renewal form in the manner
11-49    prescribed by the nutritionists board;
11-50                (2)  submits evidence of completion of the minimum
11-51    number of continuing education hours required by nutritionists
11-52    board rule; and
11-53                (3)  pays the required renewal fee before the license
11-54    expires.
11-55          Sec. 703.302.  TERM OF LICENSE; EXPIRATION DATE.  (a)  A
11-56    license is valid for one year from the date of issuance and may be
11-57    renewed annually.
11-58          (b)  The nutritionists board by rule may adopt a system under
11-59    which licenses expire on various dates during the year.  For the
11-60    year in which the license expiration date is changed, a license fee
11-61    payable on the original expiration date shall be prorated on a
11-62    monthly basis so that the license holder pays only that portion of
11-63    the fee allocable to the number of months the license is valid.
11-64    The license holder shall pay the total license renewal fee on
11-65    renewal of the license on the new expiration date.
11-66          Sec. 703.303.  LICENSE RENEWAL PROCEDURE.  (a)  A person may
11-67    renew an unexpired license by paying the required renewal fee to
11-68    the nutritionists board before the license expiration date.
11-69          (b)  A person whose license has been expired for 90 days or
 12-1    less may renew the license by paying to the nutritionists board the
 12-2    required renewal fee and a fee that is equal to half the amount of
 12-3    the required renewal fee.  If a license has been expired for more
 12-4    than 90 days but less than one year, the person may renew the
 12-5    license by paying to the nutritionists board a fee equal to twice
 12-6    the amount of the required renewal fee.
 12-7          (c)  Except as provided by Section 703.304, a person whose
 12-8    license has been expired for one year or more may not renew the
 12-9    license.  The person may obtain a new license by complying with the
12-10    requirements and procedures for obtaining an original license.
12-11          (d)  Not later than the 30th day before a person's license
12-12    expiration date, the nutritionists board shall send written notice
12-13    of the impending expiration to the person at the person's last
12-14    known address according to the records of the nutritionists board.
12-15          Sec. 703.304.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
12-16    PRACTITIONER.  The nutritionists board may renew without
12-17    examination an expired license of a person who was licensed in this
12-18    state, moved to another state, and is licensed and has been in
12-19    practice in the other state for the two years preceding the date
12-20    the person applies for renewal.  The person must pay to the
12-21    nutritionists board a fee that is equal to twice the required
12-22    renewal fee for the license.
12-23          Sec. 703.305.  CONTINUING EDUCATION.  (a)  The nutritionists
12-24    board by rule shall establish a minimum number of hours of
12-25    continuing education required for license renewal under this
12-26    chapter.
12-27          (b)  The nutritionists board may assess the continuing
12-28    education needs of license holders and may require license holders
12-29    to attend continuing education courses specified by the
12-30    nutritionists board.  The nutritionists board shall develop a
12-31    process to evaluate and approve continuing education courses.
12-32          (c)  The nutritionists board shall identify the key factors
12-33    for the competent performance of professional duties.  The
12-34    nutritionists board shall adopt a procedure to assess a license
12-35    holder's participation in continuing education programs.
12-36          Sec. 703.306.  DUPLICATE LICENSE.  The nutritionists board
12-37    shall issue a new license to replace a license that is lost,
12-38    destroyed, or mutilated, subject to nutritionists board rules and
12-39    on payment of a reasonable fee.
12-40                 SUBCHAPTER H.  PRACTICE BY LICENSE HOLDER
12-41          Sec. 703.351.  PRACTICE STRATEGIES FOR CLINICAL
12-42    NUTRITIONISTS.  (a)  A licensed clinical nutritionist may work,
12-43    independently in a general office setting or as a member of a
12-44    health care team in an office, hospital, or clinical setting, as a
12-45    nutritionist, nutritional coach, or nutritional advisor in a
12-46    corporation, providing referrals to and receiving referrals from
12-47    licensed physicians, chiropractors, nurses, pharmacists, and
12-48    dentists, or the general public.
12-49          (b)  In providing services under this chapter, a licensed
12-50    clinical nutritionist may:
12-51                (1)  plan and direct appropriate preventative and
12-52    therapeutic nutritional needs;
12-53                (2)  include individual formulation of enteral and
12-54    parenteral nutrition;
12-55                (3)  provide nutritional counseling and education to
12-56    increase client understanding of nutritional principles and
12-57    physiological and biochemical pathways to increase individual
12-58    choices for optimizing health;
12-59                (4)  evaluate, develop, and formulate therapeutic
12-60    nutrition plans, which may include the recommendation of
12-61    nutritional supplements, including micronutrients, macronutrients,
12-62    and metabolites, as considered appropriate to attain optimal
12-63    health; and
12-64                (5)  develop and administer nutrition care standards
12-65    and systems.
12-66          Sec. 703.352.  DISPLAY OF LICENSE.  (a)  Each license holder
12-67    shall display the person's license in an appropriate and public
12-68    manner.
12-69          (b)  A license issued by the nutritionists board is the
 13-1    property of the nutritionists board and must be surrendered on
 13-2    demand.
 13-3          Sec. 703.353.  LICENSE HOLDER INFORMATION.  A license holder
 13-4    shall keep the department informed of the license holder's current
 13-5    address.
 13-6          Sec. 703.354.  PROHIBITED USE OF SEAL.  (a)  A person may not
 13-7    use a seal authorized by the nutritionists board unless the person
 13-8    holds a license issued under this chapter.
 13-9          (b)  A person may not affix a seal to a document if the
13-10    license of the license holder named on the seal is expired,
13-11    suspended, or revoked.
13-12          SUBCHAPTER I.  PROHIBITED ACTS; DISCIPLINARY PROCEDURES
13-13          Sec. 703.401.  PROHIBITED ACTS.  (a)  Unless the person holds
13-14    an appropriate license issued under this chapter, a person may not:
13-15                (1)  use any title, or represent or imply that the
13-16    person has the right to use any title, that includes the term
13-17    "clinical nutritionist";
13-18                (2)  use any initials that represent that the person is
13-19    a clinical nutritionist or associate clinical nutritionist or imply
13-20    that the person holds a license under this chapter; or
13-21                (3)  use any facsimile of those titles or initials in
13-22    any manner to indicate or imply that the person is licensed under
13-23    this chapter.
13-24          (b)  Unless the person holds an appropriate registration or
13-25    certification issued by the Commission on Clinical Nutritionist
13-26    Registration or other organization recognized by the nutritionists
13-27    board, a person may not use any title or initials, or any facsimile
13-28    of those titles or initials, or represent or imply that the person
13-29    has the right to use any title implying such a registration or
13-30    certification.
13-31          Sec. 703.402.  GROUNDS FOR DISCIPLINARY ACTION.  The
13-32    nutritionists board shall assess administrative penalties, revoke
13-33    or suspend a license, refuse to renew a license, place on probation
13-34    a person whose license has been suspended, or reprimand a license
13-35    holder for a violation of this chapter, a rule of the nutritionists
13-36    board, or the code of ethics adopted by the nutritionists board.
13-37          Sec. 703.403.  HEARING.  (a)  If the nutritionists board
13-38    proposes to suspend or revoke a person's license, the person is
13-39    entitled to a hearing.
13-40          (b)  A member or employee of the nutritionists board or a
13-41    department employee who carries out the functions of the
13-42    nutritionists board and who proposes to make a decision, a finding
13-43    of fact, or a conclusion of law in a proceeding pending before the
13-44    nutritionists board may communicate directly or indirectly with a
13-45    party to the proceeding or with the party's representative only if
13-46    notice and an opportunity to participate are given to each party.
13-47          Sec. 703.404.  SANCTIONS.  The State Office of Administrative
13-48    Hearings shall use the schedule of sanctions adopted by the
13-49    nutritionists board by rule for a sanction imposed as the result of
13-50    a hearing conducted by the office.
13-51          Sec. 703.405.  PROBATION.  The nutritionists board may
13-52    require a license holder whose license suspension is probated to:
13-53                (1)  report regularly to the nutritionists board on
13-54    matters that are the basis of the probation;
13-55                (2)  limit practice to the areas prescribed by the
13-56    nutritionists board; or
13-57                (3)  continue or review professional education until
13-58    the person attains a degree of skill satisfactory to the
13-59    nutritionists board in those areas that are the basis of the
13-60    probation.
13-61          Sec. 703.406.  MONITORING OF LICENSE HOLDER.  (a)  The
13-62    nutritionists board by rule shall develop a system for monitoring a
13-63    license holder's compliance with this chapter.
13-64          (b)  Rules adopted under this section must include procedures
13-65    to:
13-66                (1)  monitor for compliance a license holder who is
13-67    ordered by the nutritionists board to perform certain acts; and
13-68                (2)  identify and monitor license holders who represent
13-69    a risk to the public.
 14-1          Sec. 703.407.  ADMINISTRATIVE PROCEDURE.  A proceeding to
 14-2    suspend or revoke a license under this subchapter is governed by
 14-3    Chapter 2001, Government Code.
 14-4                   SUBCHAPTER J.  ADMINISTRATIVE PENALTY
 14-5          Sec. 703.451.  IMPOSITION OF ADMINISTRATIVE PENALTY.  The
 14-6    nutritionists board may impose an administrative penalty on a
 14-7    person who violates this chapter or a rule adopted under this
 14-8    chapter.
 14-9          Sec. 703.452.  AMOUNT OF PENALTY.  (a)  The amount of an
14-10    administrative penalty may not exceed $1,000 for each violation.
14-11    Each day a violation continues or occurs is a separate violation
14-12    for purposes of imposing a penalty.
14-13          (b)  The amount of the penalty shall be based on:
14-14                (1)  the seriousness of the violation;
14-15                (2)  the history of previous violations;
14-16                (3)  the amount necessary to deter a future violation;
14-17                (4)  efforts made to correct the violation; and
14-18                (5)  any other matter that justice may require.
14-19          Sec. 703.453.  NOTICE OF VIOLATION AND PENALTY.  If after
14-20    investigation of a possible violation and the facts surrounding the
14-21    possible violation the nutritionists board determines that a
14-22    violation occurred, the nutritionists board shall give written
14-23    notice of the violation to the person on whom the administrative
14-24    penalty may be imposed.  The notice must:
14-25                (1)  include a brief summary of the alleged violation;
14-26                (2)  state the amount of the recommended penalty; and
14-27                (3)  inform the person of the person's right to a
14-28    hearing on the occurrence of the violation, the amount of the
14-29    penalty, or both.
14-30          Sec. 703.454.  PENALTY TO BE PAID OR HEARING REQUESTED.
14-31    (a)  Not later than the 20th day after the date the person receives
14-32    the notice under Section 703.453, the person may:
14-33                (1)  accept the nutritionists board's determination and
14-34    recommended administrative penalty; or
14-35                (2)  make a written request for a hearing on that
14-36    determination.
14-37          (b)  If the person accepts the nutritionists board's
14-38    determination, the presiding officer of the nutritionists board or
14-39    the presiding officer's designee by order shall approve the
14-40    determination and require the person to pay the recommended
14-41    penalty.
14-42          Sec. 703.455.  HEARING ON DETERMINATION.  (a)  If the person
14-43    makes a timely request for a hearing, the nutritionists board
14-44    shall:
14-45                (1)  set a hearing;
14-46                (2)  give written notice of the hearing to the person;
14-47    and
14-48                (3)  designate a hearings examiner to conduct the
14-49    hearing.
14-50          (b)  The hearings examiner shall:
14-51                (1)  make findings of fact and conclusions of law; and
14-52                (2)  promptly issue to the presiding officer of the
14-53    nutritionists board or the presiding officer's designee a proposal
14-54    for decision as to the occurrence of the violation, and, if the
14-55    examiner determines a penalty is warranted, the amount of the
14-56    proposed administrative penalty.
14-57          Sec. 703.456.  DECISION BY NUTRITIONISTS BOARD.  (a)  Based
14-58    on the findings of fact, conclusions of law, and recommendations of
14-59    the hearings examiner, the nutritionists board by order may
14-60    determine that:
14-61                (1)  a violation occurred and may impose an
14-62    administrative penalty; or
14-63                (2)  a violation did not occur.
14-64          (b)  The nutritionists board shall give notice of the order
14-65    to the person.  The notice must include:
14-66                (1)  separate statements of the findings of fact and
14-67    conclusions of law;
14-68                (2)  the amount of any penalty imposed; and
14-69                (3)  a statement of the right of the person to judicial
 15-1    review of the order.
 15-2          Sec. 703.457.  OPTIONS FOLLOWING DECISION; PAY OR APPEAL.
 15-3    (a)  Not later than the 30th day after the date the order issued
 15-4    under Section 703.456 becomes final, the person shall:
 15-5                (1)  pay the administrative penalty;
 15-6                (2)  pay the penalty and file a petition for judicial
 15-7    review contesting the fact of the violation, the amount of the
 15-8    penalty, or both; or
 15-9                (3)  without paying the penalty, file a petition for
15-10    judicial review contesting the fact of the violation, the amount of
15-11    the penalty, or both.
15-12          (b)  Within the 30-day period, a person who acts under
15-13    Subsection (a)(3) may:
15-14                (1)  stay enforcement of the penalty by:
15-15                      (A)  paying the penalty to the court for
15-16    placement in an escrow account; or
15-17                      (B)  giving to the court a supersedeas bond that
15-18    is approved by the court and that is:
15-19                            (i)  for the amount of the penalty; and
15-20                            (ii)  effective until judicial review of
15-21    the order is final; or
15-22                (2)  request the court to stay the enforcement of the
15-23    penalty by:
15-24                      (A)  filing with the court a sworn affidavit of
15-25    the person stating that the person is financially unable to pay the
15-26    penalty and is financially unable to give the supersedeas bond; and
15-27                      (B)  sending a copy of the affidavit to the
15-28    nutritionists board by certified mail.
15-29          (c)  If the nutritionists board receives a copy of an
15-30    affidavit under Subsection (b)(2), the nutritionists board may file
15-31    with the court a contest to the affidavit not later than the fifth
15-32    day after the date the copy is received.
15-33          (d)  The court shall hold a hearing on the facts alleged in
15-34    the affidavit as soon as practicable and stay the enforcement of
15-35    the penalty on finding that the alleged facts are true.  The person
15-36    who files the affidavit has the burden of proving that the person
15-37    is financially unable to pay the penalty and to give a supersedeas
15-38    bond.
15-39          Sec. 703.458.  DETERMINATION BY COURT.  (a)  If the court
15-40    sustains the finding that a violation occurred, the court may
15-41    uphold or reduce the amount of the administrative penalty and order
15-42    the person to pay the full or reduced amount.
15-43          (b)  If the court does not sustain the finding that a
15-44    violation occurred, the court shall order that a penalty is not
15-45    owed.
15-46          Sec. 703.459.  REMITTANCE OF PENALTY AND INTEREST.  (a)  If
15-47    after judicial review the administrative penalty is reduced or not
15-48    imposed by the court, the court shall, after the judgment becomes
15-49    final:
15-50                (1)  order the appropriate amount, plus accrued
15-51    interest, be remitted to the person by the nutritionists board if
15-52    the person paid the penalty under Section 703.457(a)(2); or
15-53                (2)  if the person paid the penalty under Section
15-54    703.457(b)(1)(A) or posted a supersedeas bond, order the
15-55    nutritionists board to:
15-56                      (A)  execute a complete release of the escrow
15-57    account or bond, as appropriate, if the penalty is not imposed; or
15-58                      (B)  release the escrow account or bond, as
15-59    appropriate, after the reduced penalty has been paid from the
15-60    account or by the person.
15-61          (b)  The interest paid under Subsection (a)(1) is accrued at
15-62    the rate charged on loans to depository institutions by the New
15-63    York Federal Reserve Bank.  The interest shall be paid for the
15-64    period beginning on the date the penalty is paid and ending on the
15-65    date the penalty is remitted.
15-66          Sec. 703.460.  COLLECTION OF PENALTY.  (a)  In this section,
15-67    "reasonable expenses and costs" includes expenses incurred by the
15-68    nutritionists board and the attorney general in the investigation,
15-69    initiation, or prosecution of an action, including reasonable
 16-1    investigative costs, court costs, attorney's fees, witness fees,
 16-2    and deposition expenses.
 16-3          (b)  The nutritionists board may assess reasonable expenses
 16-4    and costs against a person in an administrative hearing if, as a
 16-5    result of the hearing, an administrative penalty is assessed
 16-6    against the person.  The person shall pay expenses and costs
 16-7    assessed under this subsection not later than the 30th day after
 16-8    the date the order of the nutritionists board requiring the payment
 16-9    of expenses and costs is final.  The nutritionists board may refer
16-10    the matter to the attorney general for collection of expenses and
16-11    costs.
16-12          (c)  If the person does not pay the administrative penalty
16-13    and the enforcement of the penalty is not stayed, the nutritionists
16-14    board may refer the matter to the attorney general for collection
16-15    of the amount of the penalty.
16-16          (d)  If the attorney general brings an action against a
16-17    person to enforce an administrative penalty assessed under this
16-18    chapter and the person is found liable for an administrative
16-19    penalty, the attorney general may recover, on behalf of the
16-20    attorney general and the nutritionists board, reasonable expenses
16-21    and costs.
16-22          Sec. 703.461.  ADMINISTRATIVE PROCEDURE.  A proceeding to
16-23    assess an administrative penalty under this chapter is subject to
16-24    Chapter 2001, Government Code.
16-25                SUBCHAPTER K.  CRIMINAL AND CIVIL PENALTIES
16-26          Sec. 703.501.  CRIMINAL PENALTY.  (a)  A person commits an
16-27    offense if the person knowingly or intentionally violates this
16-28    chapter or a rule adopted by the nutritionists board or board of
16-29    health under this chapter.
16-30          (b)  An offense under this section is a Class B misdemeanor.
16-31          Sec. 703.502.  CIVIL PENALTY.  (a)  A person who violates
16-32    this chapter is subject to a civil penalty of $200 for the first
16-33    violation and $500 for each subsequent violation.
16-34          (b)  Each day a violation of Section 703.402 continues is a
16-35    separate violation for the purpose of this section.
16-36          (c)  The attorney general shall bring an action in the name
16-37    of the state at the nutritionists board's request to collect a
16-38    civil penalty assessed under this section.
16-39          SECTION 2.  (a)  Until September 1, 2003, the Texas State
16-40    Board of Examiners of Clinical Nutritionists shall waive the
16-41    examination requirement under Chapter 703, Occupations Code, as
16-42    added by this Act, and grant a license under that chapter to any
16-43    person who presents evidence satisfactory to the Texas State Board
16-44    of Examiners of Clinical Nutritionists that the person:
16-45                      (A)  has fulfilled the requirements for
16-46    eligibility to take the competency examination under Subsection
16-47    (a), Section 703.254, Occupations Code, as added by this Act;[]
16-48                      (B)  has passed a certification examination
16-49    administered by a nationally recognized professional certification
16-50    entity approved by the Texas State Board of Examiners of Clinical
16-51    Nutritionists; and
16-52                      (C)  holds an authorization of good standing for
16-53    clinical nutritionist status issued by a nationally recognized
16-54    professional certification entity approved by the Texas State Board
16-55    of Examiners of Clinical Nutritionists.
16-56          (b)  Until September 1, 2004, the Texas State Board of
16-57    Examiners of Clinical Nutritionists shall waive the examination
16-58    requirement under Chapter 703, Occupations Code, as added by this
16-59    Act, and grant an associate clinical nutritionist license under
16-60    that chapter to any person who:
16-61                (1)  presents evidence satisfactory to the Texas State
16-62    Board of Examiners of Clinical Nutritionists that the person has at
16-63    least five years of approved documented experience in the field of
16-64    clinical nutrition;
16-65                (2)  has fulfilled the requirements for eligibility to
16-66    take the competency examination under Subsection (b), Section
16-67    703.254, Occupations Code, as added by this Act;[]
16-68                (3)  passed an associate clinical nutritionists
16-69    certification examination administered by a nationally recognized
 17-1    professional certification entity approved by the Texas State Board
 17-2    of Examiners of Clinical Nutritionists;
 17-3                (4)  holds an authorization of good standing for
 17-4    associate status issued by a nationally recognized professional
 17-5    certification entity approved by the Texas State Board of Examiners
 17-6    of Clinical Nutritionists; and
 17-7                (5)  holds membership in a nationally recognized
 17-8    professional clinical nutritionist organization.
 17-9          (c)  The governor shall appoint the initial members of the
17-10    Texas State Board of Examiners of Clinical Nutritionists not later
17-11    than December 1, 2001.  In making the initial appointments, the
17-12    governor shall designate one clinical nutritionist appointee, one
17-13    health care practitioner appointee, and one public appointee for
17-14    terms expiring February 1, 2003, one clinical nutritionist
17-15    appointee, one health care practitioner appointee, and one public
17-16    appointee for terms expiring February 1, 2005, and one clinical
17-17    nutritionist appointee, one health care practitioner appointee, and
17-18    one public appointee for terms expiring February 1, 2007.
17-19          (d)  A person appointed as a clinical nutritionist member of
17-20    the Texas State Board of Examiners of Clinical Nutritionists before
17-21    September 1, 2005, is not required to be licensed under Chapter
17-22    703, Occupations Code, as added by this Act, but the person must be
17-23    eligible to hold a license issued under that chapter, may not have
17-24    an additional primary practice, and must have at least two years of
17-25    professional experience in the field of clinical nutrition.
17-26          SECTION 3.  (a)  Except as provided by Subsection (b) of this
17-27    section, this Act takes effect September 1, 2001.
17-28          (b)  Section 703.251 and Subchapters J and K, Chapter 703,
17-29    Occupations Code, as added by this Act, take effect September 1,
17-30    2002.
17-31                                 * * * * *