79R7474 YDB-D
By: Villarreal H.B. No. 2323
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of lactation consultants;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle M, Title 3, Occupations Code, is
amended by adding Chapter 704 to read as follows:
CHAPTER 704. LACTATION CONSULTANTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 704.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of State Health
Services.
(2) "Commissioner" means the commissioner of state
health services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Lactation consultant" means a person licensed
under this chapter who consults with a client for compensation on
any matter related to breast-feeding and who provides
breast-feeding assistance to infants and mothers.
Sec. 704.002. LACTATION CONSULTATION AS HEALTH CARE
SERVICE. (a) Lactation consulting constitutes a health care
service if the consultation is provided by a licensed health care
professional or if a physician refers a patient to a lactation
consultant.
(b) Lactation consultant services do not include:
(1) the diagnosis or treatment of illness or disease;
or
(2) a service or procedure for which a license to
practice medicine or any other health care service is required by
law.
Sec. 704.003. APPLICABILITY OF CHAPTER. This chapter does
not apply to a person licensed in this state as a physician or nurse
or to another health care professional licensed by the state and
operating within the scope of the person's license.
[Sections 704.004-704.050 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES
Sec. 704.051. GENERAL RULEMAKING AUTHORITY. The executive
commissioner shall adopt rules consistent with this chapter as
necessary for the performance of the department's duties under this
chapter.
Sec. 704.052. RULES REGARDING LACTATION CONSULTANTS. Rules
adopted under this chapter relating to a lactation consultant must
contain minimum standards for:
(1) the issuance, denial, renewal, suspension,
revocation, or probation of a license under this chapter;
(2) the qualifications for licensing as a lactation
consultant that are at least as stringent as the qualifications
established by the International Board of Lactation Consultant
Examiners or its successor;
(3) the records to be kept by a lactation consultant;
(4) the inspection of the records, equipment, and
conditions of the physical environment used by a lactation
consultant in providing lactation consulting services; and
(5) any other aspect of the practice of a lactation
consultant necessary to protect the public.
Sec. 704.053. RULES REGARDING ADVERTISING OR COMPETITIVE
BIDDING. (a) The executive commissioner may not adopt rules
restricting advertising or competitive bidding by a person licensed
under this chapter except to prohibit false, misleading, or
deceptive practices.
(b) In the executive commissioner's rules to prohibit
false, misleading, or deceptive practices, the executive
commissioner may not include a rule that:
(1) restricts the use of any medium for advertising;
(2) restricts the use of a licensed person's personal
appearance or voice in an advertisement;
(3) relates to the size or duration of an
advertisement by the licensed person; or
(4) restricts the licensed person's advertisement
under a trade name.
Sec. 704.054. BASIC LACTATION CONSULTANT TRAINING. The
department shall establish requirements for basic lactation
consultant training.
Sec. 704.055. GENERAL POWERS AND DUTIES OF DEPARTMENT. (a)
The department shall:
(1) administer this chapter; and
(2) investigate a person who may be engaging in a
practice that violates this chapter.
(b) The department may establish an advisory committee
under this chapter to meet as needed to advise the department in
administering this chapter.
Sec. 704.056. EXAMINATION. The department shall:
(1) contract with a nationally recognized testing
organization to develop and administer at least twice each calendar
year a lactation consultant examination that a person must pass
before receiving a license under this chapter; and
(2) establish eligibility requirements for persons
taking a comprehensive lactation consultant examination.
Sec. 704.057. NOTIFICATION OF EXAMINATION RESULTS. (a)
Not later than the 30th day after the date a person takes a license
examination under this chapter, the department shall notify the
person of the results of the examination.
(b) If the examination is graded or reviewed by a testing
service:
(1) the department shall notify the person of the
results of the examination not later than the 14th day after the
date the department receives the results from the testing service;
and
(2) if notice of the examination results will be
delayed for longer than 90 days after the examination date, the
department must notify the person of the reason for the delay before
the 90th day.
(c) The department may require a testing service to notify a
person of the results of the person's examination.
(d) If requested in writing by a person who fails a license
examination administered under this chapter, the department shall
provide to the person an analysis of the person's performance on the
examination.
Sec. 704.058. REEXAMINATION. (a) An applicant who fails
the examination may take a subsequent examination on payment of the
required examination fee.
(b) The department shall establish the criteria under which
an applicant may take a subsequent examination under this section.
(c) The executive commissioner may establish a reasonable
examination fee for an applicant requesting reexamination under
this section.
Sec. 704.059. INSPECTIONS; INVESTIGATIONS. The department
or its authorized representative may enter the premises of an
applicant for a license at:
(1) reasonable times to conduct an inspection
incidental to the issuance of a license; and
(2) other times that the department considers
necessary to ensure compliance with this chapter and the rules
adopted under this chapter.
[Sections 704.060-704.100 reserved for expansion]
SUBCHAPTER C. LICENSURE
Sec. 704.101. LICENSE REQUIRED. Unless the person is
exempt from this chapter under Section 704.003, a person may not act
as a lactation consultant or represent that the person is a
lactation consultant unless the person holds a license issued under
this chapter.
Sec. 704.102. APPLICATION. An applicant for a license
under this chapter must:
(1) submit an application form provided by the
department; and
(2) include with the application the application fee
set by the executive commissioner.
Sec. 704.103. GENERAL PROVISIONS RELATING TO LICENSURE.
(a) A license holder may exercise all professional rights, honors,
and privileges relating to the practice of lactation consulting.
(b) A license is the property of the department and must be
surrendered on demand.
Sec. 704.104. QUALIFICATIONS FOR LACTATION CONSULTANT
LICENSE. (a) The department shall issue a license to each
qualified applicant for a license as a lactation consultant.
(b) An applicant for a license under this section must be an
individual and present evidence satisfactory to the department that
the person:
(1) has completed a course of instruction that meets
the requirements established by the department under Section
704.054 in preparation to become a lactation consultant; and
(2) has passed an examination described by Section
704.056.
Sec. 704.105. TEMPORARY LICENSE. (a) The department may
issue a temporary license to an applicant who has complied with the
education and experience requirements for a license.
(b) A temporary license expires on the date the applicant
is:
(1) issued a license under Section 704.104 after
successful completion of the examination; or
(2) notified by the department that the applicant has
failed the examination.
(c) The executive commissioner may set a reasonable fee for
a temporary license.
Sec. 704.106. APPLICANT LICENSED IN ANOTHER JURISDICTION.
(a) The department may waive any prerequisite to obtaining a
license under this chapter for an applicant after reviewing the
applicant's credentials and determining the applicant holds a
license issued by another jurisdiction that has licensing or
registration requirements substantially equivalent to those of
this state.
(b) The department may waive any prerequisite to obtaining a
license for an applicant who holds a license issued by another
jurisdiction with which this state has a reciprocity agreement.
The department may make an agreement, subject to the approval of the
governor, with another state to allow for licensure by reciprocity.
Sec. 704.107. LICENSE RENEWAL. An applicant for license
renewal must apply annually for renewal before the license
expiration date and comply with any renewal requirements adopted by
rule under this chapter.
Sec. 704.108. STAGGERED RENEWAL DATES. (a) The executive
commissioner by rule may adopt a system under which licenses expire
on various dates during the year.
(b) For the year in which the license expiration date is
changed, license fees payable on the original expiration date shall
be prorated on a monthly basis so that each licensed lactation
consultant pays only that portion of the license fee that is
allocable to the number of months during which the license is valid.
(c) On renewal of the license on the new expiration date,
the total license renewal fee is payable.
[Sections 704.109-704.150 reserved for expansion]
SUBCHAPTER D. LICENSE DENIAL AND DISCIPLINARY PROCEDURES
Sec. 704.151. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY
ACTION. The department may refuse to issue a license to a person
and shall suspend, revoke, or refuse to renew the license of a
person or shall reprimand a person licensed under this chapter if
the person:
(1) obtains a license by fraud, misrepresentation, or
concealment of material facts;
(2) violates a rule adopted by the executive
commissioner;
(3) engages in unprofessional conduct as defined by
department rule that endangers or is likely to endanger the health,
welfare, or safety of the public; or
(4) violates this chapter.
Sec. 704.152. HEARING ON DENIAL OR DISCIPLINARY ACTION.
(a) If the department proposes to deny an application for a
license, suspend or revoke a license, or reprimand a license holder
under this chapter, the license holder is entitled to a hearing
before the department if the person submits a written request to the
department.
(b) A hearing under this subchapter is a contested case
under Chapter 2001, Government Code.
Sec. 704.153. PROBATION. The department may place on
probation a person whose license is suspended. If a license
suspension is probated, the department may require the person to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
department; or
(3) continue or review professional education until
the person attains a degree of skill satisfactory to the department
in those areas that are the basis of the probation.
Sec. 704.154. EMERGENCY SUSPENSION. (a) The department
shall temporarily suspend the license of a license holder if the
department determines from the evidence or information presented to
it that continued practice by the license holder would constitute a
continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
[Sections 704.155-704.200 reserved for expansion]
SUBCHAPTER E. ADMINISTRATIVE PENALTY
Sec. 704.201. IMPOSITION OF ADMINISTRATIVE PENALTY. The
department may impose an administrative penalty on a person who
violates this chapter or a rule adopted under this chapter.
Sec. 704.202. AMOUNT OF PENALTY. (a) The amount of an
administrative penalty may not exceed $1,000 for each violation.
Each day a violation continues or occurs is a separate violation for
purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) efforts made to correct the violation; and
(5) any other matter that justice may require.
Sec. 704.203. NOTICE OF VIOLATION AND PENALTY. If, after
investigation of a possible violation and the facts surrounding the
possible violation, the department determines that a violation
occurred, the department shall give written notice of the violation
to the person on whom the administrative penalty may be imposed.
The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 704.204. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Not later than the 20th day after the date the person receives the
notice under Section 704.203, the person may:
(1) accept the department's determination and
recommended administrative penalty; or
(2) make a written request for a hearing on that
determination.
(b) If the person accepts the department's determination,
the commissioner or the commissioner's designee by order shall
approve the determination and require the person to pay the
recommended penalty.
Sec. 704.205. HEARING ON DEPARTMENT DETERMINATION. (a) If
the person makes a timely request for a hearing, the department
shall:
(1) set a hearing;
(2) give written notice of the hearing to the person;
and
(3) designate a hearings examiner to conduct the
hearing.
(b) The hearings examiner shall:
(1) make findings of fact and conclusions of law; and
(2) promptly issue to the commissioner or the
commissioner's designee a proposal for decision as to the
occurrence of the violation, and, if the examiner determines a
penalty is warranted, the amount of the proposed administrative
penalty.
Sec. 704.206. DECISION BY COMMISSIONER. (a) Based on the
findings of fact, conclusions of law, and recommendations of the
hearings examiner, the commissioner or the commissioner's designee
by order may determine that:
(1) a violation occurred and may impose an
administrative penalty; or
(2) a violation did not occur.
(b) The department shall give notice of the order to the
person. The notice must include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) the amount of any penalty imposed; and
(3) a statement of the right of the person to judicial
review of the order.
Sec. 704.207. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date the order issued
under Section 704.206 becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial
review contesting the fact of the violation, the amount of the
penalty, or both; or
(3) without paying the penalty, file a petition for
judicial review contesting the fact of the violation, the amount of
the penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court and that is:
(i) for the amount of the penalty; and
(ii) effective until judicial review of the
order is final; or
(2) request the court to stay the enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the
department by certified mail.
(c) If the department receives a copy of an affidavit under
Subsection (b)(2), the department may file with the court a contest
to the affidavit not later than the fifth day after the date the
copy is received.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and stay the enforcement of the
penalty on finding that the alleged facts are true. The person who
files the affidavit has the burden of proving that the person is
financially unable to pay the penalty and to give a supersedeas
bond.
Sec. 704.208. DETERMINATION BY COURT. (a) If the court
sustains the finding that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 704.209. REMITTANCE OF PENALTY AND INTEREST. (a) If,
after judicial review, the administrative penalty is reduced or not
imposed by the court, the court shall, after the judgment becomes
final:
(1) order the appropriate amount, plus accrued
interest, be remitted to the person by the department if the person
paid the penalty under Section 704.207(a)(2); or
(2) if the person paid the penalty under Section
455.207(b)(1)(A) or posted a supersedeas bond, order the department
to:
(A) execute a complete release of the escrow
account or bond, as appropriate, if the penalty is not imposed; or
(B) release the escrow account or bond, as
appropriate, after the reduced penalty has been paid from the
account or by the person.
(b) The interest paid under Subsection (a)(1) is accrued at
the rate charged on loans to depository institutions by the New York
Federal Reserve Bank. The interest shall be paid for the period
beginning on the date the penalty is paid and ending on the date the
penalty is remitted.
Sec. 704.210. COLLECTION OF PENALTY. (a) In this section,
"reasonable expenses and costs" includes expenses incurred by the
department and the attorney general in the investigation,
initiation, or prosecution of an action, including reasonable
investigative costs, court costs, attorney's fees, witness fees,
and deposition expenses.
(b) The department may assess reasonable expenses and costs
against a person in an administrative hearing if, as a result of the
hearing, an administrative penalty is assessed against the person.
The person shall pay expenses and costs assessed under this
subsection not later than the 30th day after the date the order of
the commissioner or the commissioner's designee requiring the
payment of expenses and costs is final. The department may refer
the matter to the attorney general for collection of expenses and
costs.
(c) If the person does not pay the administrative penalty
and the enforcement of the penalty is not stayed, the department may
refer the matter to the attorney general for collection of the
amount of the penalty.
(d) If the attorney general brings an action against a
person to enforce an administrative penalty assessed under this
chapter and the person is found liable for an administrative
penalty, the attorney general may recover, on behalf of the
attorney general and the department, reasonable expenses and costs.
(e) Expenses and costs collected under this section shall be
deposited in the state treasury to the credit of a special account
the amounts in which may be appropriated only to the department.
Section 403.095, Government Code, does not apply to the account.
Sec. 704.211. ADMINISTRATIVE PROCEDURE. A proceeding to
assess an administrative penalty under this chapter is subject to
Chapter 2001, Government Code.
[Sections 704.212-704.250 reserved for expansion]
SUBCHAPTER F. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 704.251. CIVIL PENALTY. (a) A person is liable for a
civil penalty if the person is required to be licensed under this
chapter and the person knowingly or intentionally practices:
(1) without a license or while the person's license is
suspended or revoked; or
(2) in violation of a department order.
(b) A civil penalty under this section may not exceed $250
for each violation. Each day of violation may constitute a separate
violation for purposes of penalty assessment. In determining the
amount of the penalty, the court shall consider:
(1) the person's history of previous violations;
(2) the seriousness of the violation;
(3) any hazard to the health and safety of the public;
and
(4) the demonstrated good faith of the person charged.
Sec. 704.252. INJUNCTIONS. (a) If the commissioner
determines that a person has violated this chapter and that the
violation creates an immediate threat to the health and safety of
the public, the commissioner may request the attorney general or a
district, county, or city attorney to bring an action in a district
court for a restraining order to restrain the violation.
(b) If a person has violated this chapter, the commissioner
may bring an action in a district court for an injunction to
prohibit the person from continuing the violation.
Sec. 704.253. VENUE. (a) Venue for a civil action brought
under Section 704.251 or 704.252 is in the county in which the
defendant resides or in the county in which the violation occurred.
(b) Venue for the civil action may be changed only after a
good faith effort has been made to address the violation in the
county in which venue is proper.
SECTION 2. (a) Not later than June 1, 2006, the Department
of State Health Services shall prescribe the forms and procedures
and the executive commissioner of the Health and Human Services
Commission shall adopt the rules necessary to implement Chapter
704, Occupations Code, as added by this Act.
(b) Notwithstanding Chapter 704, Occupations Code, as added
by this Act, a person is not required to hold a license under that
chapter before September 1, 2006.
SECTION 3. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2005.
(b) Section 704.101 and Subchapters E and F, Chapter 704,
Occupations Code, as added by this Act, take effect September 1,
2006.