80R6558 MSE-F

By: Zedler H.B. No. 1942

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of clinical nutritionists; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 201.051(a), Occupations Code, is amended to read as follows:

(a) The Texas Board of Chiropractic Examiners consists of 12 [nine] members appointed by the governor with the advice and consent of the senate as follows:

(1) six chiropractors who are reputable practicing chiropractors and who have resided in this state for at least five years preceding appointment; [and]

(2) four [three] members who represent the public; and

(3) two certified clinical nutritionists who are reputable practicing nutritionists and who have resided in this state for at least five years preceding appointment.

SECTION 2. Subtitle M, Title 3, Occupations Code, is amended by adding Chapter 703 to read as follows: CHAPTER 703. CLINICAL NUTRITIONISTS SUBCHAPTER A. GENERAL PROVISIONS

Sec. 703.001. GENERAL DEFINITIONS. In this chapter:

(1) "Board" means the Texas Board of Chiropractic Examiners.

(2) "Institution of higher education" has the meaning assigned by Section 61.003, Education Code.

(3) "Nutrition counseling" means the recommendation of a diet, including specific foods, and the recommendation of lifestyle changes to prevent disease and optimize health.

Sec. 703.002. DEFINITION OF CLINICAL NUTRITION. (a) In this section:

(1) "Nutritional assessment" means the evaluation of individual nutritional needs, recognizing biochemical individuality, to determine factors necessary to restore or maintain healthy physiological function. The term includes the use of appropriate tests and observations interpreted in terms of optimal values and nutrition and lifestyle analysis to determine an appropriate nutritional program, including:

(A) a case history;

(B) anthropometric measurements;

(C) physical signs; and

(D) biochemical data, including laboratory tests.

(2) "Nutritional supplements" includes food, vitamins, minerals, botanicals, nutraceuticals, amino acids, trace elements, biochemical supplements, homeopathics, macronutrients, micronutrients, herbs, accessory food factors, and metabolites designed to correct clinical deficiencies in the human body.

(3) "Whole food" means a food in its naturally grown state, prepared for human consumption with minimal or no processing and preserving.

(b) "Clinical nutrition" means a specialization in nutrition that requires advanced training, including training in:

(1) the interpretation of nutrition assessments for the evaluation of nutritional status; and

(2) recommendations for therapeutic intervention to correct identified nutritional imbalances using specific whole foods, nutritional supplements, and other nutrition counseling. [Sections 703.003-703.050 reserved for expansion] SUBCHAPTER B. BOARD POWERS AND DUTIES

Sec. 703.051. GENERAL POWERS AND DUTIES. The board shall administer the purposes of and enforce this chapter.

Sec. 703.052. RULES. The board shall adopt rules necessary to administer this chapter, including rules to:

(1) establish the qualifications for a license issued under this chapter;

(2) adopt an official seal; and

(3) adopt and publish a code of ethics.

Sec. 703.053. FEES. The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter. [Sections 703.054-703.100 reserved for expansion] SUBCHAPTER C. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES

Sec. 703.101. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the board's procedures by which complaints under this chapter are filed with and resolved by the board.

(b) The board shall make the information available to the public and appropriate state agencies.

Sec. 703.102. CONTACT INFORMATION. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints under this chapter to the board. The board may provide for that notification:

(1) on each license form, application, or written contract for services of a person regulated by the board under this chapter;

(2) on a sign prominently displayed in the place of business of each person regulated by the board under this chapter; or

(3) in a bill for services provided by a person regulated by the board under this chapter.

(b) The board shall list along with its regular telephone number any toll-free telephone number established under state law that may be called to present a complaint about a health professional.

Sec. 703.103. RECORDS OF COMPLAINTS. (a) The board shall maintain a file on each written complaint filed with the board 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 board;

(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 board closed the file without taking action other than to investigate the complaint.

(b) The board shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the board's policies and procedures relating to complaint investigation and resolution under this chapter.

(c) The board, at least quarterly 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 complaint unless the notice would jeopardize an undercover investigation.

(d) The board shall review a complaint regarding:

(1) incompetency, misconduct, gross negligence, fraud, misrepresentation, or dishonesty in the performance of the functions or duties of a license holder; and

(2) the use of any controlled substance or drug or the use of alcoholic beverages to an extent that the use impairs a person's ability to perform the work of a clinical nutritionist.

Sec. 703.104. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board under this chapter. The rules adopted under this subsection shall:

(1) distinguish between categories of complaints;

(2) ensure that a complaint is not dismissed without appropriate consideration;

(3) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;

(4) ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and

(5) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.

(b) The board shall:

(1) dispose of each complaint in a timely manner; and

(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the complaint is received by the board.

(c) Each party to the complaint shall be notified of the projected time requirements for pursuing the complaint. Each party shall be notified of any change in the schedule established under Subsection (b)(2) not later than the seventh day after the date the change is made.

(d) The executive director of the board shall notify the board of a complaint that is not resolved in the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint.

Sec. 703.105. PUBLIC PARTICIPATION. The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the board under this chapter.

Sec. 703.106. EXCEPTION TO OPEN RECORDS LAW FOR CERTAIN COMPLAINT AND INVESTIGATION RECORDS. (a) Except as provided in Subsection (b), information or material subpoenaed or compiled by the board in connection with a complaint and investigation under this chapter:

(1) is confidential and not subject to disclosure under Chapter 552, Government Code; and

(2) is not subject to disclosure, discovery, subpoena, or other means of legal compulsion for its release to anyone other than the board or its employees or agents involved in discipline of the license holder.

(b) The information may be disclosed to:

(1) a person involved with the board in a disciplinary action against the license holder;

(2) a professional clinical nutritionist licensing or disciplinary board in another jurisdiction;

(3) a peer assistance program approved by the board under Chapter 467, Health and Safety Code;

(4) a law enforcement agency; or

(5) a person engaged in bona fide research, if all individual-identifying information has been deleted. [Sections 703.107-703.150 reserved for expansion] SUBCHAPTER D. LICENSE REQUIREMENTS

Sec. 703.151. LICENSE REQUIRED. Unless the person holds an appropriate license issued under this chapter, a person may not:

(1) use the title or represent or imply that the person has the title "licensed clinical nutritionist" or "provisional licensed clinical nutritionist," or use the letters "LCN" or "PLCN"; or

(2) use a facsimile of those titles to indicate that the person is a licensed clinical nutritionist or a provisional licensed clinical nutritionist.

Sec. 703.152. EXEMPTIONS. (a) In this section, "license" means a license, certificate, registration, title, or permit issued in this state.

(b) This chapter does not prohibit or restrict:

(1) a person from using a title allowed by state law in the field of nutrition;

(2) a person from conducting a class, seminar, or other speech related to nutrition;

(3) a person from providing free oral nutrition information as an operator or employee of a health food store or business that sells health products, including dietary supplements, food, or food materials, or distributing written nutrition information in connection with the marketing and distribution of those products;

(4) nutritional instruction by members of a religious or faith-based organization using a ministry of natural healing; or

(5) a person from engaging in any generally accepted nutrition practice, such as nutrition counseling or nutrition consulting, for a fee.

(c) This chapter does not prohibit or restrict the practice of:

(1) a person licensed in this state to engage in the practice for which the person is licensed, including a dietician licensed under Chapter 701;

(2) clinical nutrition by a person who is performing official duties as a United States employee;

(3) clinical nutrition by a cooperative extension home economist, to the extent the activities are part of the economist's employment;

(4) clinical nutrition or dietetics by a person pursuing a course of study leading to a degree in dietetics, nutrition science, or an equivalent major, as authorized by the board and from a regionally accredited school or program;

(5) clinical nutrition or dietetics by a person fulfilling the supervised practice experience component of a nutrition or dietetics program;

(6) clinical nutrition or dietetics by a person with a master's or doctoral degree with a major in nutrition, or an equivalent major, from a regionally accredited school recognized by the board for the purpose of education and research;

(7) clinical nutrition by an educator employed by a nonprofit organization, as authorized by the board or any other governmental entity; or

(8) clinical nutrition by a person who provides weight control services.

Sec. 703.153. LICENSE APPLICATION. (a) Each applicant for a license must submit a sworn application, accompanied by the application fee. The applicant must specify the type of license for which the person is applying.

(b) The board shall prescribe the application form and may by rule establish dates by which applications and fees must be received. The rules must be consistent with board rules related to application dates of other licenses or registrations.

Sec. 703.154. EXAMINATION. (a) An applicant must pass a competency examination approved by the board. The board shall offer an examination at least twice a year.

(b) The board shall prepare each examination or adopt an examination prepared or given by an approved scientific nutritionists board of clinical nutritionist experts or a testing service. Any written portion of an examination must be validated by an independent professional testing agency.

(c) The board shall waive the examination requirement for a person registered in good standing with the Clinical Nutrition Certification Board as a certified clinical nutritionist.

Sec. 703.155. QUALIFICATIONS FOR EXAMINATION. To qualify for the licensed clinical nutritionist examination, an applicant must:

(1) possess a baccalaureate or postbaccalaureate degree conferred by an accredited institution of higher education, with:

(A) a major course of study approved by the board in human nutrition, nutrition, or nutrition education;

(B) an equivalent major course of study approved by the board;

(C) a postgraduate specialty credential in clinical nutrition from a board-approved certifying entity; or

(D) an advanced degree in clinical nutrition or nutrition science from a board-approved academic institution; and

(2) have completed an internship or preplanned, documented, professional experience program in clinical nutrition practice of not less than 900 hours under the supervision of a licensed clinical nutritionist or a licensed physician, chiropractor, or dentist who holds credentials approved by the board in the field of clinical nutrition.

Sec. 703.156. INVESTIGATION. (a) Not later than the 45th day after the date a properly and timely submitted application is received and not later than the 30th day before the next examination date, the board shall notify an applicant in writing of the receipt and investigation of the applicant's application and any other relevant evidence relating to applicant qualifications established by board rule.

(b) The notice must state whether the applicant has qualified for examination based on the application and other submitted evidence. If the applicant has not qualified, the notice must state the reasons for the applicant's failure to qualify.

Sec. 703.157. EXAMINATION RESULTS. (a) Not later than the 30th day after the date a person takes a licensing examination under this chapter, the board shall notify the person of the results of the examination.

(b) If the examination is graded or reviewed by an approved scientific nutritionists board of clinical nutritionist experts or a testing service:

(1) the board shall notify the person of the results of the examination not later than the 14th day after the date the board receives the results from the board of experts or testing service; and

(2) if notice of the examination results will be delayed for longer than 90 days after the examination date, the board shall notify the person of the reason for the delay before the 90th day.

(c) The board may require the board of experts or 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 an examination under this chapter, the board shall furnish the person with an analysis of the person's performance on the examination.

Sec. 703.158. REEXAMINATION. An applicant who fails the examination three times must provide evidence to the board that the applicant has successfully completed clinical nutrition training in the applicant's areas of weakness before the applicant may apply for reexamination.

Sec. 703.159. QUALIFIED PERSON ENTITLED TO LICENSE. The board shall issue a clinical nutritionist license under this chapter to a person who meets the qualifications for the license.

Sec. 703.160. PROVISIONAL LICENSE. (a) On receipt of an application and payment of an application fee, the board may issue a provisional clinical nutritionist license to an applicant who:

(1) is waiting for an educational institution to send a transcript or an internship sponsor to send documentation; and

(2) is sponsored by a person licensed by the board under this chapter with whom the provisional license holder will practice during the time the person holds a provisional license.

(b) A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this chapter to the provisional license holder if:

(1) the provisional license holder passes the examination under Section 703.154;

(2) the board verifies that the provisional license holder meets the academic and experience requirements for a license under this chapter; and

(3) the provisional license holder satisfies any other licensing requirements under this chapter.

(c) The board must approve or deny a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend the 180-day period if the results of an examination have not been received by the board before the end of that period.

Sec. 703.161. TEMPORARY LICENSE. (a) On receipt of an application and payment of an application fee, the board may grant the appropriate temporary license to an applicant who:

(1) is licensed in good standing as a clinical nutritionist in another jurisdiction that has license requirements that are substantially equivalent to the requirements of this chapter;

(2) has passed a national or other examination recognized by the board relating to clinical nutrition; and

(3) is sponsored by a person licensed by the board under this chapter with whom the temporary license holder may practice.

(b) The board may waive the requirement of Subsection (a)(3) if the board determines that compliance with that provision is a hardship to the applicant.

(c) A temporary license is valid until the date the board approves or denies the temporary license holder's application for a license. The board shall issue a license under this chapter to the holder of a temporary license if:

(1) the board verifies that the temporary license holder meets the academic and experience requirements for a license under this chapter; and

(2) the temporary license holder satisfies any other license requirements under this chapter.

(d) The board must complete the processing of a temporary license holder's application for a license not later than the 180th day after the date the board issues the temporary license. The board may extend this deadline to receive pending examination results.

Sec. 703.162. INACTIVE STATUS. The board by rule may provide for a license holder to place the person's license on inactive status. The board by rule shall provide for a time limit for a license to remain on inactive status.

Sec. 703.163. RECIPROCITY. The board 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 board may make an agreement, subject to the approval of the governor, with another state to allow for licensing by reciprocity. [Sections 703.164-703.200 reserved for expansion] SUBCHAPTER E. LICENSE RENEWAL; CONTINUING EDUCATION

Sec. 703.201. LICENSE RENEWAL. The board shall renew the license of a clinical nutritionist in good standing who:

(1) returns a completed renewal form in the manner prescribed by the board;

(2) submits evidence of completion of the minimum number of continuing education hours required under Section 703.205; and

(3) pays the required renewal fee before the license expires.

Sec. 703.202. TERM OF LICENSE. A license is valid for one year after the date of issuance and may be renewed annually.

Sec. 703.203. LICENSE RENEWAL PROCEDURE. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the board before the license expiration date. A person whose license has expired may not engage in activities that require a license until the license has been renewed.

(b) A person whose license has been expired for 90 days or less may renew the license by paying to the board a renewal fee that is equal to 1-1/2 times the normally required renewal fee.

(c) A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the board a renewal fee that is equal to two times the normally required renewal fee.

(d) A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license.

(e) A person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination. The person must pay to the board a fee that is equal to two times the normally required renewal fee for the license.

(f) Not later than the 30th day before the date a person's license is scheduled to expire, the board shall send written notice of the impending expiration to the person at the person's last known address according to the records of the board.

Sec. 703.204. STAGGERED RENEWAL OF LICENSES. The board by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, the board shall prorate license fees on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.

Sec. 703.205. CONTINUING EDUCATION. (a) To renew a license under this chapter, a licensed clinical nutritionist must annually complete at least 25 hours of continuing education approved by the board, including at least one board-approved scientific symposium on clinical nutrition.

(b) The board may assess the continuing education needs of license holders and may require license holders to attend continuing education courses specified by the board and made available by continuing education providers approved by the board. The board shall develop a process to evaluate and approve continuing education.

(c) The board shall identify the key factors for the competent performance of professional duties. The board shall adopt a procedure to assess a license holder's participation in continuing education programs. [Sections 703.206-703.250 reserved for expansion] SUBCHAPTER F. PRACTICE BY LICENSE HOLDER

Sec. 703.251. DISPLAY OF LICENSE. (a) Each license holder shall display the person's license in an appropriate and public manner.

(b) A license issued by the board is the property of the board and must be surrendered on demand.

Sec. 703.252. LICENSE HOLDER INFORMATION. A license holder shall keep the board informed of the license holder's current address.

Sec. 703.253. PROHIBITED USE OF SEAL. (a) A person may not use a seal authorized by the board unless the person holds a license issued under this chapter.

(b) A person may not affix a seal to a document if the license of the license holder named on the seal is expired, suspended, or revoked. [Sections 703.254-703.300 reserved for expansion] SUBCHAPTER G. DISCIPLINARY PROCEDURES

Sec. 703.301. GROUNDS FOR DISCIPLINARY ACTION. The board shall revoke, suspend, or refuse to renew a license or shall reprimand a license holder for a violation of this chapter, a board rule, or a code of ethics adopted by the board.

Sec. 703.302. HEARING. (a) If the board proposes to suspend or revoke a person's license, the person is entitled to a hearing.

(b) A member or employee of the board who carries out the functions of the board and who proposes to make a decision, a finding of fact, or a conclusion of law in a proceeding pending before the board may communicate directly or indirectly with a party to the proceeding or with the party's representative only if notice and an opportunity to participate are given to each party.

Sec. 703.303. SCHEDULE OF SANCTIONS. The State Office of Administrative Hearings shall use the schedule of sanctions adopted by the board by rule for a sanction imposed as the result of a hearing conducted by the office.

Sec. 703.304. PROBATION. The board may place on probation a person whose license is suspended. If a license suspension is probated, the board may require the person:

(1) to report regularly to the board on matters that are the basis of the probation;

(2) to limit practice to the areas prescribed by the board; or

(3) to continue or review professional education until the person attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.

Sec. 703.305. MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system for monitoring a license holder's compliance with this chapter.

(b) Rules adopted under this section must include procedures to:

(1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and

(2) identify and monitor license holders who represent a risk to the public.

Sec. 703.306. APPLICABILITY OF OPEN RECORDS LAW TO DISCIPLINARY RECORDS. The filing of formal charges by the board against a license holder, the nature of those charges, disciplinary proceedings of the board, and final disciplinary actions, including warnings and reprimands, are not confidential and are subject to disclosure in accordance with Chapter 552, Government Code. [Sections 703.307-703.350 reserved for expansion] SUBCHAPTER H. CIVIL PENALTY

Sec. 703.351. CIVIL PENALTY. (a) A person who violates this chapter or a rule adopted by the board under this chapter is liable to the state for a civil penalty not to exceed $1,000 for each day of violation.

(b) At the request of the board, the attorney general shall bring an action to recover a civil penalty authorized by this section.

SECTION 3. (a) Until September 1, 2009, the Texas Board of Chiropractic Examiners shall waive the examination required under Chapter 703, Occupations Code, as added by this Act, and issue a license under that chapter to any person who holds a credential for clinical nutritionist or other nutrition specialty status issued by a nationally recognized professional certification entity approved by the Texas Board of Chiropractic Examiners.

(b) Until September 1, 2009, the Texas Board of Chiropractic Examiners shall waive the education requirements for the clinical nutritionist examination, but not the examination, required under Sections 703.154 and 703.155, Occupations Code, as added by this Act, for any person who is a licensed physician, chiropractor, dentist, pharmacist, or registered nurse.

(c) The Texas Board of Chiropractic Examiners may select a nationally recognized clinical nutrition certification and credential review entity to assist in the review of credentials submitted by persons applying for a license under this section. The selected entity may charge a fee to the applicant to review the applicant's credentials, if the board approves the fee.

SECTION 4. The governor shall appoint the additional members of the Texas Board of Chiropractic Examiners as required by Section 201.051, Occupations Code, as amended by this Act, not later than December 1, 2007. In making the appointments, the governor shall designate one clinical nutritionist appointee for a term expiring February 1, 2009, one clinical nutritionist appointee for a term expiring February 1, 2011, and one public appointee for a term expiring February 1, 2013.

SECTION 5. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2007.

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