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 * * * * *