80R3583 MSE-D

By: Villarreal H.B. No. 703

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 703 to read as follows: CHAPTER 703. LACTATION CONSULTANTS SUBCHAPTER A. GENERAL PROVISIONS

Sec. 703.001. DEFINITIONS. In this chapter:

(1) "Advisory committee" means the advisory committee created under this chapter.

(2) "Department" means the Department of State Health Services.

(3) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(4) "Lactation consultant" means a health care professional licensed under this chapter who specializes in the clinical management of breast-feeding and works in a variety of settings.

Sec. 703.002. APPLICABILITY OF CHAPTER. As long as the person does not use the title "lactation consultant" to describe the person's activities, this chapter does not apply to:

(1) a person licensed in this state as a physician or nurse;

(2) a health care professional licensed by the state and operating within the scope of the person's license; or

(3) a person acting as a paid or volunteer peer counselor, breast-feeding consultant, La Leche League Leader, doula, or childbirth educator. [Sections 703.003-703.050 reserved for expansion] SUBCHAPTER B. ADVISORY COMMITTEE

Sec. 703.051. ADVISORY COMMITTEE. (a) The advisory committee shall advise the department and the executive commissioner on:

(1) the adoption of rules under this chapter; and

(2) the implementation of a licensing program under this chapter.

(b) The advisory committee is an informal advisory committee to the department and is not subject to Chapter 2110, Government Code.

(c) The advisory committee has no independent rulemaking authority.

Sec. 703.052. APPOINTMENT OF ADVISORY COMMITTEE. (a) The advisory committee consists of five members appointed by the executive commissioner as follows:

(1) three members who are lactation consultants; and

(2) two members who represent the public.

(b) Appointments to the advisory committee shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.

Sec. 703.053. TERMS; VACANCY. (a) Members of the advisory committee are appointed for staggered six-year terms. The terms of one or two members expire on February 1 of each odd-numbered year, as appropriate.

(b) If a vacancy occurs during a member's term, the executive commissioner shall appoint a new member to fill the unexpired term. [Sections 703.054-703.100 reserved for expansion] SUBCHAPTER C. POWERS AND DUTIES

Sec. 703.101. 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. 703.102. 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;

(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;

(5) development of an approved program of mandatory continuing education and the manner in which attendance at all approved courses, clinics, forums, lectures, programs, or seminars is monitored and recorded; and

(6) any other aspect of the practice of a lactation consultant necessary to protect the public.

Sec. 703.103. 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. 703.104. GENERAL POWERS AND DUTIES OF DEPARTMENT. The department shall:

(1) administer this chapter; and

(2) investigate a person who may be engaging in a practice that violates this chapter.

Sec. 703.105. COMPLAINTS. (a) The executive commissioner shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints under this chapter to the department. The department shall provide to the person filing the complaint and to each person who is a subject of the complaint information about the department's policies and procedures relating to complaint investigation and resolution.

(b) The department shall maintain a file on each written complaint filed with the department under this chapter. The file must include:

(1) the name of the person who filed the complaint;

(2) the date the complaint is received by the department;

(3) the subject matter of the complaint;

(4) the name of each person contacted in relation to the complaint;

(5) a summary of the results of the review or investigation of the complaint; and

(6) an explanation of the reason the file was closed, if the department closed the file without taking action other than to investigate the complaint.

(c) The department, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation.

(d) The executive commissioner shall adopt a procedure for documenting complaints to the department under this chapter from the time of the submission of the initial complaint to the final disposition of the complaint. The executive commissioner shall publish the procedure in the Texas Register.

Sec. 703.106. 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 703.107-703.150 reserved for expansion] SUBCHAPTER D. LICENSURE

Sec. 703.151. LICENSE REQUIRED. Unless the person is exempt from this chapter under Section 703.002, a person may not represent that the person is a lactation consultant unless the person holds a license issued under this chapter.

Sec. 703.152. 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. 703.153. 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. 703.154. 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 the following qualifications:

(A) has completed at least 45 contact hours of education specific to lactation consulting in the three years preceding the date the application is filed;

(B) has completed at least:

(i) 500 hours of supervised clinical practice as part of an accredited education program; or

(ii) 1,500 hours of supervised clinical practice outside of an accredited education program; and

(C) holds a license or registration to practice a health profession in this state or has completed at least four hours of postsecondary education in each of the following areas:

(i) anatomy and physiology;

(ii) sociology;

(iii) psychology, counseling, or communication skills;

(iv) child development;

(v) nutrition; and

(vi) medical terminology; and

(2) has passed an examination described by Section 703.155.

Sec. 703.155. EXAMINATION. (a) The department shall contract with a nationally or internationally recognized testing organization to develop and administer at least once each calendar year a lactation consultant examination.

(b) An examination administered under this section must:

(1) be developed by a panel of experts in lactation consulting with the assistance of a qualified psychometrician;

(2) be professionally constructed, validated, and administered;

(3) be criterion-referenced; and

(4) have content based on the results of a comprehensive lactation consultant role delineation study conducted by the department within 10 years of the date on which the examination is administered.

Sec. 703.156. 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 more than 120 days after the examination date, the department must notify the person of the reason for the delay before the 120th 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. 703.157. 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. 703.158. 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 703.154 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. 703.159. APPLICANT LICENSED IN ANOTHER JURISDICTION. The department may waive any prerequisite to obtaining a license under this chapter for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license issued by another jurisdiction that has licensing or registration requirements substantially equivalent to those of this state.

Sec. 703.160. LICENSE EXPIRATION AND RENEWAL. (a) A license issued under this chapter expires on the second anniversary of the date of issuance.

(b) An applicant for license renewal must apply for renewal before the license expiration date and comply with any renewal requirements adopted by rule under this chapter.

Sec. 703.161. 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 703.162-703.200 reserved for expansion] SUBCHAPTER E. LICENSE DENIAL AND DISCIPLINARY PROCEDURES

Sec. 703.201. 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 a material fact;

(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. 703.202. 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. 703.203. 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. 703.204. 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 703.205-703.250 reserved for expansion] SUBCHAPTER F. ADMINISTRATIVE PENALTY

Sec. 703.251. 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. 703.252. 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. 703.253. 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. 703.254. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 703.253, 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 executive commissioner or the executive commissioner's designee by order shall approve the determination and require the person to pay the recommended penalty.

Sec. 703.255. 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 executive commissioner or the executive 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. 703.256. DECISION BY EXECUTIVE COMMISSIONER. (a) Based on the findings of fact, conclusions of law, and recommendations of the hearings examiner, the executive commissioner or the executive 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. 703.257. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the order issued under Section 703.256 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. 703.258. 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. 703.259. 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 703.257(a)(2); or

(2) if the person paid the penalty under Section 703.257(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. 703.260. 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 executive commissioner or the executive 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. 703.261. ADMINISTRATIVE PROCEDURE. A proceeding to assess an administrative penalty under this chapter is subject to Chapter 2001, Government Code. [Sections 703.262-703.300 reserved for expansion] SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 703.301. CIVIL PENALTY. (a) A person is liable for a civil penalty if the person is required to be licensed under this chapter and the person knowingly or intentionally practices:

(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. 703.302. INJUNCTIONS. (a) If the executive 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 executive 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 executive commissioner may bring an action in a district court for an injunction to prohibit the person from continuing the violation.

Sec. 703.303. VENUE. (a) Venue for a civil action brought under Section 703.301 or 703.302 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.

Sec. 703.304. CRIMINAL PENALTY. (a) A person commits an offense if the person is required to be licensed under this chapter and the person knowingly practices lactation consulting without a license.

(b) An offense under this section is a Class B misdemeanor.

SECTION 2. (a) Not later than June 1, 2008, 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 703, Occupations Code, as added by this Act.

(b) Notwithstanding Chapter 703, Occupations Code, as added by this Act, a person is not required to hold a license under that chapter before September 1, 2008.

SECTION 3. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2007.

(b) Section 703.151 and Subchapters F and G, Chapter 703, Occupations Code, as added by this Act, take effect September 1, 2008.