By: Farrar H.B. No. 3976

A BILL TO BE ENTITLED

AN ACT

relating to the licensing and regulation of lactation consultants; requiring an occupational license; 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. SHORT TITLE. This chapter may be cited as the Texas Lactation Consultant Act.

Sec. 703.002. DEFINITIONS. In this chapter:

(1) "Board" means the lactation consultant board.

(2) "Commissioner" means the commissioner of state health services.

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

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

(5) "Lactation consultant" or "registered lactation consultant" means a health care professional licensed under this chapter who specializes in the clinical management of breastfeeding and works in a variety of settings.

Sec. 703.003. FINDINGS.

(a) The legislature finds that breastfeeding a baby is an important and basic act of nurture that must be encouraged in the interests of maternal and child health and family values. The legislature recognizes breastfeeding as the best method of infant nutrition.

(b) Current levels of breastfeeding initiation and duration in Texas fall significantly below public health targets. Approximately 30% of women need professional help to breastfeed successfully. Sources of professional support are limited and difficult to locate. Qualified lactation consultants facilitate better breastfeeding outcomes. The profession of lactation consulting requires specialized skills. Licensing lactation consultants will protect consumers and reduce health care costs.

Sec. 703.004. APPLICABILITY. As long as the person does not use the titles "lactation consultant" or "registered 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;

(3) a person acting as a paid or volunteer peer counselor, La Leche League Leader, doula, or childbirth educator; or

(4) a licensed midwife.

Sec. 703.005. APPLICATION OF SUNSET ACT. The lactation consultant board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the lactation consultant board is abolished and this chapter expires September 1, 2025.

[Sections 703.007-703.051 reserved for expansion]

SUBCHAPTER B. LACTATION CONSULTANT BOARD

Sec. 703.051. LACTATION CONSULTANT BOARD. The commissioner shall appoint a lactation consultant board that reports directly to the commissioner.

Sec. 703.052. APPOINTMENT OF LACTATION CONSULTANT BOARD. (a) The lactation consultant board consists of nine members appointed as follows:

(1) five lactation consultant members each of whom has at least three years' experience in the practice of lactation consulting;

(2) one physician member who is either certified by a national professional organization of physicians that certifies obstetricians and gynecologists, or who is certified by a national professional organization of physicians that certifies family practitioners or pediatricians;

(3) one member who is a registered nurse and who practices in obstetrics or in pediatrics or in family practice; and

(4) two members who represent the public and who are not practicing or trained in a health care profession, one of whom is a parent who has been assisted by a lactation consultant.

(b) Appointments to the lactation consultant board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.

Sec. 703.053. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the lactation consultant board if the person or the person's spouse:

(1) is registered, certified, or licensed by an occupational regulatory agency in the field of lactation consulting;

(2) is employed by or participates in the management of a business entity or other organization regulated by the lactation consultant board or receiving funds from the lactation consultant board;

(3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the lactation consultant board; or

(4) uses or receives a substantial amount of tangible goods, services, or funds from the lactation consultant board, other than compensation or reimbursement authorized by law for lactation consultant board membership, attendance, or expenses; or

(5) has any other interest, financial or otherwise, that is adverse to the profession of lactation consulting.

Sec. 703.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b) A person may not be a lactation consultant board member, an employee of the lactation consultant board, or a department employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if:

(1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care.

(c) A person may not be a lactation consultant board member or act as the general counsel to the lactation consultant board or the department if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the lactation consultant board.

Sec. 703.055. TERMS. Members of the lactation consultant board serve for staggered terms of six years. The terms of three members expire on January 31 of each odd-numbered year.

Sec. 703.056. OFFICERS. The commissioner shall designate a public member of the lactation consultant board as the presiding officer of the lactation consultant board to serve in that capacity at the pleasure of the commissioner. The lactation consultant board shall elect one of the other members of the lactation consultant board as vice presiding officer.

Sec. 703.057. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the lactation consultant board that a member:

(1) does not have at the time of taking office the qualifications required by Section 703.052;

(2) does not maintain during service on the lactation consultant board the qualifications required by Section 703.052;

(3) is ineligible for membership under Section 703.053 or 703.054;

(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5) is absent from more than half of the regularly scheduled lactation consultant board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the lactation consultant board.

(b) The validity of an action of the lactation consultant board is not affected by the fact that it is taken when a ground for removal of a lactation consultant board member exists.

(c) If the program coordinator has knowledge that a potential ground for removal exists, the program coordinator shall notify the presiding officer of the lactation consultant board of the potential ground. The presiding officer shall then notify the commissioner that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the program coordinator shall notify the next highest ranking member of the lactation consultant board, who shall then notify the commissioner that a potential ground for removal exists.

Sec. 703.058. REIMBURSEMENT. A lactation consultant board member may receive reimbursement for travel expenses as provided by the General Appropriations Act.

Sec. 703.059. MEETINGS. (a) The lactation consultant board shall meet at least semiannually.

(b) The lactation consultant board shall meet at other times at the call of the lactation consultant board or the commissioner.

Sec. 703.060. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the lactation consultant board may not vote, deliberate, or be counted as a member in attendance at a meeting of the lactation consultant board until the person completes a training program that complies with this section.

(b) The training program must provide the person with information regarding:

(1) this chapter and the programs, functions, rules, and budget of the lactation consultant board;

(2) the results of the most recent formal audit of the lactation consultant board;

(3) the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and

(4) any applicable ethics policies adopted by the lactation consultant board or the Texas Ethics Commission.

(c) A person appointed to the lactation consultant board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.

SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL

Sec. 703.101. PROGRAM COORDINATOR. The department shall, after consultation with the lactation consultant board, employ a coordinator for the lactation consulting program and the staff necessary to administer the program.

Sec. 703.102. DUTIES OF PROGRAM COORDINATOR. The program coordinator shall supervise the staff in the performance of administrative duties, including:

(1) keeping the minutes of lactation consultant board meetings; and

(2) maintaining:

(a) records about basic lactation consulting education courses and continuing lactation consulting education courses;

(b) a roster of lactation consultants licensed under Section 703.251; and

(c) a record of each person who is licensed under this chapter.

Sec. 703.103. DIVISION OF RESPONSIBILITIES. The lactation consultant board shall develop and implement policies that clearly define the respective responsibilities of the lactation consultant board and the staff of the lactation consultant board.

Sec. 703.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The program coordinator or the program coordinator's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1) personnel policies, including policies related to recruitment, evaluation, selection, application, training, and promotion of personnel that comply with Chapter 21, Labor Code;

(2) a comprehensive analysis of the lactation consultant board workforce that meets federal and state guidelines;

(3) procedures by which a determination can be made of significant underuse in the lactation consultant board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4) reasonable methods to appropriately address those areas of underuse.

(b) A policy statement prepared under Subsection (a) must:

(1) cover an annual period;

(2) be updated annually;

(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4) be filed with the governor.

(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of another biennial report made to the legislature.

SUBCHAPTER D. POWERS AND DUTIES OF LACTATION CONSULTANT BOARD,

EXECUTIVE COMMISSIONER, AND DEPARTMENT

Sec. 703.151. RULEMAKING AUTHORITY OF LACTATION CONSULTANT BOARD. (a) Subject to the approval of the executive commissioner, the lactation consultant board shall:

(1) adopt substantive and procedural rules necessary for the licensing of lactation consultants;

(2) adopt rules prescribing the standards for the practice of lactation consulting in this state. The standards must be equivalent to established national standards such as those set by the International Board of Lactation Consultant Examiners (IBCLE) for an International Board Certified Lactation Consultant (IBCLC). The standards must include ethical requirements.

(3) The rules must prescribe:

(a) the type of courses and number of hours required to meet the basic lactation consulting education course and continuing lactation consulting education course requirements; and

(b) minimum standards for the approval and revocation of approval of:

(i) basic lactation consulting education courses and continuing lactation consulting education courses; and

(ii) instructors or facilities used in basic lactation consulting education courses and continuing lactation consulting education courses;

(4) adopt rules requiring lactation consultants to require patients to sign a release advising the patient that lactation consultation is not a substitute for conventional medical care by a physician, which includes diagnosis, treatment, and well child care;

(5) adopt rules prescribing a procedure for reporting and processing complaints relating to the practice of lactation consulting in this state;

(6) adopt and implement substantive and procedural rules as necessary to discipline lactation consultants determined to be in violation of this chapter or otherwise a threat to the public health and safety;

(7) adopt rules as necessary to establish eligibility for reciprocity for initial licensing under this chapter; and

(8) adopt other rules necessary to implement a duty imposed on the executive commissioner or the department under this chapter.

(b) The rules adopted under Subsection (a)(5) must include rules relating to:

(1) warnings provided to lactation consultants for a violation of this chapter or rules adopted under this chapter;

(2) agreed orders for additional education by lactation consultants;

(3) recommendations or requirements for medical or psychological treatment, including treatment related to substance abuse by a lactation consultant; and

(4) restrictions on the practice of a lactation consultant, including practice limitations and the suspension and revocation of a license, and placement of a lactation consultant on probation.

Sec. 703.152. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION. (a) Subject to the approval of the executive commissioner, the lactation consultant board shall adopt rules necessary to comply with Chapter 53.

(b) In its proposed rules under this section, the lactation consultant board shall list the specific offenses for which a conviction would constitute grounds for the lactation consultant board to take action under Section 53.021.

Sec. 703.153. FEES. Subject to the approval of the executive commissioner, the lactation consultant board by rule shall establish reasonable and necessary fees that, in the aggregate, produce sufficient revenue to cover the costs of administering this chapter.

Sec. 703.154. ANNUAL REPORT; REPORTS ON LACTATION CONSULTING. (a) The lactation consultant board shall prepare and publish reports on the practice of lactation consulting in this state, including statistical reporting of breastfeeding initiation and continuation rates.

Sec. 703.155. COMPLAINT PROCEDURE AND INVESTIGATION. (a) The lactation consultant board shall adopt rules concerning the investigation of a complaint filed with the lactation consultant board.

(b) The rules adopted under Subsection (a) must:

(1) distinguish among categories of complaints;

(2) ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint; and

(3) provide for the release of any relevant lactation consulting or medical record to the lactation consultant board, without the necessity of consent by the lactation consultant's patient, as necessary to conduct an investigation of a complaint.

(c) The lactation consultant board by rule shall:

(1) adopt a form to standardize information concerning complaints made to the lactation consultant board; and

(2) prescribe information to be provided to a person when the person files a complaint with the lactation consultant board.

(d) The lactation consultant board shall provide reasonable assistance to a person who wishes to file a complaint with the lactation consultant board.

Sec. 703.156. DUTIES OF LACTATION CONSULTANT BOARD AND DEPARTMENT. (a) The department, with the recommendation of the lactation consultant board, shall:

(1) implement rules governing:

(a) basic lactation consulting education courses and continuing lactation consulting education courses; and

(b) approval of instructors or facilities used in offering basic lactation consulting education courses and continuing lactation consulting education courses;

(2) adopt and provide information about basic lactation consulting resources and instructor manuals; and

(3) enter into agreements necessary to carry out this chapter.

(c) The department shall:

(1) establish a program for licensure as a lactation consultant as prescribed by lactation consultant board rules;

(2) pay the salaries of the program coordinator and any additional staff the department determines to be necessary; and

(3) provide office space and supplies for the program coordinator and other staff.

Sec. 703.157. ROSTER; NOTICE TO COUNTY OFFICIALS. (a) The department shall maintain a roster of each person licensed as a lactation consultant in this state.

(b) The roster shall contain for each person the information required on the licensure form under this chapter and other information the department determines necessary to accurately identify each licensed lactation consultant. The information is public information as defined by Chapter 552, Government Code.

Sec. 703.158. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The lactation consultant board may not propose rules restricting advertising or competitive bidding by a licensed lactation consultant except to prohibit false, misleading, or deceptive practices.

(b) The lactation consultant board may not include in its proposed rules to prohibit false, misleading, or deceptive practices by a licensed lactation consultant a rule that:

(1) restricts the lactation consultant's use of any advertising medium;

(2) restricts the lactation consultant's personal appearance or use of the lactation consultant's voice in an advertisement;

(3) relates to the size or duration of an advertisement by the lactation consultant; or

(4) restricts the lactation consultant's advertisement under a trade name.

Sec. 703.159. BOARD COMMITTEES. (a) The lactation consultant board may appoint committees to assist the lactation consultant board with its functions under this chapter.

(b) Only a member of the lactation consultant board may serve as a member of a lactation consultant board committee.

Sec. 703.160. USE OF TECHNOLOGY. Subject to the approval of the executive commissioner, the lactation consultant board shall implement a policy requiring the lactation consultant board to use appropriate technological solutions to improve the lactation consultant board's ability to perform its functions. The policy must ensure that the public is able to interact with the lactation consultant board on the Internet.

Sec. 703.161. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) Subject to the approval of the executive commissioner, the lactation consultant board shall develop and implement a policy to encourage the use of:

(1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of lactation consultant board rules; and

(2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the lactation consultant board's jurisdiction.

(b) The lactation consultant board's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies.

(c) The department shall designate a trained person to:

(1) coordinate the implementation of the policy adopted under Subsection (a);

(2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and

(3) collect data concerning the effectiveness of those procedures, as implemented by the lactation consultant board.

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES

Sec. 703.201. PUBLIC INTEREST INFORMATION. (a) The lactation consultant board shall prepare information of public interest describing the functions of the lactation consultant board and the procedures by which complaints are filed with and resolved by the lactation consultant board.

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

Sec. 703.202. COMPLAINTS. (a) The lactation consultant board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the lactation consultant board for the purpose of directing complaints to the lactation consultant board. The lactation consultant board may provide for that notice:

(1) on each registration form, application, or disclosure and informed consent form of a person regulated by the lactation consultant board;

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

(3) in a bill for service provided by a person regulated by the lactation consultant board.

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

(c) The lactation consultant board shall maintain a system to promptly and efficiently act on complaints filed with the lactation consultant board. The lactation consultant board shall maintain:

(1) information about the parties to the complaint and the subject matter of the complaint;

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

(3) information about the disposition of the complaint.

(d) The lactation consultant board shall make information available describing its procedures for complaint investigation and resolution.

(e) The lactation consultant board shall periodically notify the parties of the status of the complaint until final disposition of the complaint.

Sec. 703.203. COMPLAINT COMMITTEE. The lactation consultant board shall appoint at least one public member of the lactation consultant board to any lactation consultant board committee established to review a complaint filed with the lactation consultant board or review an enforcement action against a lactation consultant related to a complaint filed with the lactation consultant board.

Sec. 703.204. PUBLIC PARTICIPATION. (a) The lactation consultant board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the lactation consultant board and to speak on any issue under the lactation consultant board's jurisdiction.

(b) The lactation consultant board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the lactation consultant board's programs.

SUBCHAPTER F. LICENSURE REQUIREMENTS

Sec. 703.251. LICENSE REQUIRED. (a) A person may not practice lactation consulting unless the person holds a license issued under this chapter.

(b) The department shall provide a license to each person who fulfills the licensing requirements.

(c) Unless the person is licensed under this chapter, a person may not use:

(1) the title lactation consultant;

(2) the title registered lactation consultant;

(3) the letters LC;

(4) the letters RLC; or

(5) any other words, letters, abbreviations, or insignia indicating or implying, by any means or in any way, that the person is a licensed lactation consultant.

Sec. 703.252. QUALIFICATIONS FOR INITIAL LICENSE. (a) A person qualifies to become a licensed lactation consultant under this chapter if the person provides the program coordinator with documentary evidence that the person has:

(1) satisfied each requirement for basic lactation consulting education; and

(2) passed the comprehensive lactation consulting examination and jurisprudence examination required by this chapter.

(b) The initial license must be issued before the lactation consultant begins to practice lactation consulting and may be issued at any time during the year.

(c) The term of the initial license begins on the date the requirements are met and extends through December 31 of the year in which the initial license is issued.

Sec. 703.253. LICENSE APPLICATION. A person who practices lactation consulting must apply to the department to be licensed as a lactation consultant. The application must:

(1) be accompanied by a nonrefundable application fee; and

(2) include information required by lactation consultant board rules.

Sec. 703.254. BASIC LACTATION CONSULTING EDUCATION. Subject to the approval of the executive commissioner, the lactation consultant board shall establish requirements for basic lactation consulting education.

Sec. 703.255. EXAMINATION. (a) The lactation consultant board, with the approval of the executive commissioner, shall:

(1) adopt standards for a comprehensive lactation consulting examination for persons regulated under this chapter that must be passed before the initial license may be issued; and

(2) establish eligibility requirements for persons taking a comprehensive lactation consulting examination.

(b) The board may employ and cooperate with an organization or consultant in preparing an appropriate examination.

(c) An independent testing professional must validate any written examination prepared or offered by the board, including a standardized national examination.

(d) Instead of creating its own examination, the board may accept the results of a criterion-referenced, standardized national examination by an independent lactation consultant organization--such as the IBCLE--that meets the standards set by the board.

Sec. 703.256. JURISPRUDENCE EXAMINATION. (a) The lactation consultant board shall develop a jurisprudence examination to determine an applicant's knowledge of this chapter, lactation consultant board rules, and any other applicable laws of this state affecting the applicant's lactation consulting practice. A person applying for an initial or renewal license must take the examination. The lactation consultant board shall administer the examination at least twice each calendar year.

(b) Subject to the approval of the executive commissioner, the lactation consultant board shall adopt rules to implement this section, including rules related to the development and administration of the examination, examination fees, guidelines for reexamination, grading the examination, and providing notice of examination results.

Sec. 703.257. EXAMINATION RESULTS. (a) The lactation consultant board shall notify each examinee of the examination results not later than the 30th day after the date on which the examination is administered. If an examination is conducted, graded or reviewed by a national testing service or independent lactation consultant organization, the lactation consultant board must notify each examinee of the examination results not later than the 14th day after the date the lactation consultant board receives the results from the testing service.

(b) If the notice of the examination results graded or reviewed by a national testing service or independent lactation consultant organization will be delayed for more than 90 days after the examination date, the lactation consultant board must notify the examinee of the reason for the delay before the 90th day.

(c) The lactation consultant board may require a testing service to notify an examinee of the examination results.

SUBCHAPTER G. LICENSE RENEWAL

Sec. 703.301. APPLICATION FOR LICENSE RENEWAL. An applicant for renewal of a license under this chapter must apply biennially as provided in Section 703.253.

Sec. 703.302. PROCEDURE FOR RENEWAL. (a) A licensed lactation consultant is responsible for renewing a license before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed.

(b) A person may renew an unexpired license by paying the required renewal fee to the lactation consultant board before the expiration date of the license.

(c) A person whose license has been expired for 90 days or less may renew the license by paying to the lactation consultant board a fee that is equal to 1-1/4 times the amount of the renewal fee.

(d) If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the lactation consultant board a fee that is equal to 1-1/2 times the amount of the renewal fee.

(e) 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 submitting to reexamination and complying with the requirements and procedures for obtaining an initial license.

(f) Not later than the 30th day before the date a person's license is scheduled to expire, the lactation consultant 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 lactation consultant board.

Sec. 703.303. STAGGERED RENEWAL DATES. (a) The lactation consultant board 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.

Sec. 703.304. CONTINUING LACTATION CONSULTING EDUCATION. (a) Subject to the approval of the executive commissioner, the lactation consultant board shall establish requirements for continuing lactation consulting education, including a minimum number of hours of continuing education required to renew a license under this chapter.

(b) On renewal of the license, a lactation consultant must provide the program coordinator with evidence, acceptable under lactation consultant board rules, of completion of continuing lactation consulting education as prescribed by the lactation consultant board.

(c) The lactation consultant board by rule shall develop a process to evaluate and approve continuing education courses.

Sec. 703.305. REQUIRED ATTENDANCE AT SPECIFIC LACTATION CONSULTING EDUCATION COURSES. The lactation consultant board may assess the continuing education needs of licensed lactation consultants and may require licensed lactation consultants to attend continuing lactation consulting education courses specified by the lactation consultant board.

Sec. 703.306. GROUNDS FOR REFUSING RENEWAL. The lactation consultant board may refuse to renew the license of a person who fails to pay an administrative penalty imposed under Subchapter J, unless enforcement of the penalty is stayed or a court has ordered that the administrative penalty is not owed.

SUBCHAPTER H. PROHIBITED PRACTICES AND GROUNDS FOR DISCIPLINARY

ACTION

Sec. 703.351. GROUNDS FOR DISCIPLINARY ACTION. (a) The lactation consultant board may discipline a licensed lactation consultant, refuse to renew a lactation consultant's license, or refuse to issue a license to an applicant if the person:

(1) violates this chapter or a rule adopted under this chapter;

(2) submits false or misleading information to the lactation consultant board or the department;

(3) is convicted of a misdemeanor involving moral turpitude or a felony;

(4) uses alcohol or drugs intemperately;

(5) engages in unprofessional or dishonorable conduct that may reasonably be determined to deceive or defraud the public;

(6) is unable to practice lactation consulting with reasonable skill and safety because of illness, disability, or psychological impairment;

(7) is determined by a court judgment to be mentally impaired; or

(8) fails to practice lactation consulting in a manner consistent with the public health and safety.

(b) The lactation consultant board may discipline a licensed lactation consultant and may refuse to issue a license to an applicant for a disciplinary action taken by another jurisdiction that affects the person's authority to practice lactation consulting, including a suspension, a revocation, or another action.

Sec. 703.352. EMERGENCY SUSPENSION. (a) The lactation consultant board or a three-member committee of lactation consultant board members designated by the lactation consultant board shall temporarily suspend the license of a licensed lactation consultant if the lactation consultant board or committee determines from the evidence or information presented to it that continued practice by the licensed lactation consultant 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.

Sec. 703.353. REFUND. (a) Subject to Subsection (b), the lactation consultant board may order a licensed lactation consultant to pay a refund to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter.

(b) The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the licensed lactation consultant for a service regulated by this chapter. The lactation consultant board may not require payment of other damages or estimate harm in a refund order.

SUBCHAPTER I. ADMINISTRATIVE PENALTY

Sec. 703.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The lactation consultant board may impose an administrative penalty on a person who violates this chapter or a rule adopted under this chapter.

Sec. 703.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day a violation continues is a separate violation.

(b) The amount 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. 703.403. NOTICE OF VIOLATION AND PENALTY. (a) If, after investigation of a possible violation and the facts surrounding that possible violation, the lactation consultant board or its designee determines that a violation has occurred, the lactation consultant board or its designee shall give written notice of the violation to the person alleged to have committed the violation.

(b) The notice must:

(1) include a brief summary of the alleged violation;

(2) state the amount of the proposed administrative 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. 703.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 703.453, the person may:

(1) accept the lactation consultant board or its designee's determination and the proposed administrative penalty; or

(2) make a written request for a hearing on that determination.

(b) If the person accepts the lactation consultant board or its designee's determination, the lactation consultant board by order shall approve the determination and require the person to pay the proposed penalty.

Sec. 703.405. HEARING. (a) If the person timely requests a hearing, the lactation consultant board or its designee shall set a hearing and give written notice of the hearing to the person. The lactation consultant board or its designee may employ a hearings examiner for this purpose.

(b) The hearings examiner shall make findings of fact and conclusions of law and promptly issue to the lactation consultant board a proposal for decision as to the occurrence of the violation and the amount of the proposed administrative penalty.

Sec. 703.406. DECISION BY LACTATION CONSULTANT BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the lactation consultant board by order may determine that:

(1) a violation has occurred and impose an administrative penalty; or

(2) a violation did not occur.

(b) The lactation consultant board shall give notice of the lactation consultant board's 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 assessed; and

(3) a statement of the right of the person to judicial review of the lactation consultant board's order.

Sec. 703.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the lactation consultant board's order 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:

(i) is for the amount of the penalty; and

(ii) is effective until judicial review of the order is final; or

(2) request the court to stay 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 amount of the penalty and is financially unable to give the supersedeas bond; and

(b) giving a copy of the affidavit to the lactation consultant board by certified mail.

(c) If the lactation consultant board receives a copy of an affidavit under Subsection (b)(2), the lactation consultant board 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 shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.

Sec. 703.408. COLLECTION OF PENALTY. (a) If the person on whom the administrative penalty is imposed does not comply with Section 703.457, the penalty may be collected.

(b) The lactation consultant board 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 lactation consultant board requiring the payment of expenses and costs is final. The lactation consultant board may refer the matter to the attorney general for collection of the expenses and costs.

(c) 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, the lactation consultant board, and the department, reasonable expenses and costs.

(d) In this section, reasonable expenses and costs includes expenses incurred by the department, the lactation consultant board, 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.

(e) Costs and expenses collected under this section shall be deposited in the state treasury to the credit of a special account that may be appropriated only to the department. Section 403.095, Government Code, does not apply to the account.

Sec. 703.409. DETERMINATION BY COURT. (a) If a court sustains the determination 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 penalty.

(b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed.

Sec. 703.410. REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall:

(1) order the lactation consultant board to remit to the person the appropriate amount, plus accrued interest, if the person paid the penalty; or

(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(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. 703.411. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter to impose an administrative penalty is subject to Chapter 2001, Government Code.

SUBCHAPTER J. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 703.451. 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 lactation consulting:

(1) without a license or while the license is suspended or revoked; or

(2) in violation of a lactation consultant board 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. 703.452. INJUNCTIONS. (a) In this section, "health authority" means a physician who administers state and local laws regulating public health under Chapter 121, Health and Safety Code.

(b) If the commissioner or a health authority 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 or the health authority, with the concurrence of 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.

(c) If a person has violated this chapter, the commissioner or a health authority, with the concurrence of the commissioner, may bring an action in a district court for an injunction to prohibit the person from continuing the violation.

Sec. 703.453. VENUE. (a) Venue for a civil action brought under Section 703.451 or 703.452 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. 703.454. 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 C misdemeanor.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Sec. 703.455. CEASE AND DESIST ORDER. (a) If it appears to the lactation consultant board that a person who is not licensed under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to the practice of lactation consulting, the lactation consultant board after notice and opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity.

(b) A violation of an order under this section constitutes grounds for imposing an administrative penalty under Subchapter J.

SECTION 2. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2015.

(b) Subsection 703.251(a) and (c)(License Required) take effect September 1, 2016.