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A BILL TO BE ENTITLED
|
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AN ACT
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relating to the licensing and regulation of lactation consultants; |
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providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle M, Title 3, Occupations Code, is |
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amended by adding Chapter 703 to read as follows: |
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CHAPTER 703. LACTATION CONSULTANTS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 703.001. DEFINITIONS. In this chapter: |
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(1) "Advisory committee" means the advisory committee |
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created under this chapter. |
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(2) "Department" means the Department of State Health |
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Services. |
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(3) "Executive commissioner" means the executive |
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commissioner of the Health and Human Services Commission. |
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(4) "Lactation consultant" means a health care |
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professional licensed under this chapter who specializes in the |
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clinical management of breast-feeding and works in a variety of |
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settings. |
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Sec. 703.002. APPLICABILITY OF CHAPTER. As long as the |
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person does not use the title "lactation consultant" to describe |
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the person's activities, this chapter does not apply to: |
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(1) a person licensed in this state as a physician or |
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nurse; |
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(2) a health care professional licensed by the state |
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and operating within the scope of the person's license; or |
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(3) a person acting as a paid or volunteer peer |
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counselor, breast-feeding consultant, La Leche League Leader, |
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doula, or childbirth educator. |
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[Sections 703.003-703.050 reserved for expansion] |
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SUBCHAPTER B. ADVISORY COMMITTEE |
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Sec. 703.051. ADVISORY COMMITTEE. (a) The advisory |
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committee shall advise the department and the executive |
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commissioner on: |
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(1) the adoption of rules under this chapter; and |
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(2) the implementation of a licensing program under |
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this chapter. |
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(b) The advisory committee is an informal advisory |
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committee to the department and is not subject to Chapter 2110, |
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Government Code. |
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(c) The advisory committee has no independent rulemaking |
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authority. |
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Sec. 703.052. APPOINTMENT OF ADVISORY COMMITTEE. (a) The |
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advisory committee consists of five members appointed by the |
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executive commissioner as follows: |
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(1) three members who are lactation consultants; and |
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(2) two members who represent the public. |
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(b) Appointments to the advisory committee shall be made |
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without regard to the race, color, disability, sex, religion, age, |
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or national origin of the appointees. |
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Sec. 703.053. TERMS; VACANCY. (a) Members of the advisory |
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committee are appointed for staggered six-year terms. The terms of |
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one or two members expire on February 1 of each odd-numbered year, |
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as appropriate. |
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(b) If a vacancy occurs during a member's term, the |
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executive commissioner shall appoint a new member to fill the |
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unexpired term. |
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[Sections 703.054-703.100 reserved for expansion] |
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SUBCHAPTER C. POWERS AND DUTIES |
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Sec. 703.101. GENERAL RULEMAKING AUTHORITY. The executive |
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commissioner shall adopt rules consistent with this chapter as |
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necessary for the performance of the department's duties under this |
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chapter. |
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Sec. 703.102. RULES REGARDING LACTATION CONSULTANTS. Rules |
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adopted under this chapter relating to a lactation consultant must |
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contain minimum standards for: |
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(1) the issuance, denial, renewal, suspension, |
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revocation, or probation of a license under this chapter; |
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(2) the qualifications for licensing as a lactation |
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consultant; |
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(3) the records to be kept by a lactation consultant; |
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(4) the inspection of the records, equipment, and |
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conditions of the physical environment used by a lactation |
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consultant in providing lactation consulting services; |
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(5) development of an approved program of mandatory |
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continuing education and the manner in which attendance at all |
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approved courses, clinics, forums, lectures, programs, or seminars |
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is monitored and recorded; and |
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(6) any other aspect of the practice of a lactation |
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consultant necessary to protect the public. |
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Sec. 703.103. RULES REGARDING ADVERTISING OR COMPETITIVE |
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BIDDING. (a) The executive commissioner may not adopt rules |
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restricting advertising or competitive bidding by a person licensed |
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under this chapter except to prohibit false, misleading, or |
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deceptive practices. |
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(b) In the executive commissioner's rules to prohibit |
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false, misleading, or deceptive practices, the executive |
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commissioner may not include a rule that: |
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(1) restricts the use of any medium for advertising; |
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(2) restricts the use of a licensed person's personal |
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appearance or voice in an advertisement; |
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(3) relates to the size or duration of an |
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advertisement by the licensed person; or |
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(4) restricts the licensed person's advertisement |
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under a trade name. |
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Sec. 703.104. GENERAL POWERS AND DUTIES OF DEPARTMENT. The |
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department shall: |
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(1) administer this chapter; and |
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(2) investigate a person who may be engaging in a |
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practice that violates this chapter. |
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Sec. 703.105. COMPLAINTS. (a) The executive commissioner |
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shall establish methods by which consumers and service recipients |
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are notified of the name, mailing address, and telephone number of |
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the department for the purpose of directing complaints under this |
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chapter to the department. The department shall provide to the |
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person filing the complaint and to each person who is a subject of |
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the complaint information about the department's policies and |
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procedures relating to complaint investigation and resolution. |
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(b) The department shall maintain a file on each written |
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complaint filed with the department under this chapter. The file |
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must include: |
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(1) the name of the person who filed the complaint; |
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(2) the date the complaint is received by the |
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department; |
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(3) the subject matter of the complaint; |
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(4) the name of each person contacted in relation to |
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the complaint; |
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(5) a summary of the results of the review or |
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investigation of the complaint; and |
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(6) an explanation of the reason the file was closed, |
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if the department closed the file without taking action other than |
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to investigate the complaint. |
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(c) The department, at least quarterly and until final |
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disposition of the complaint, shall notify the person filing the |
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complaint and each person who is a subject of the complaint of the |
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status of the investigation unless the notice would jeopardize an |
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undercover investigation. |
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(d) The executive commissioner shall adopt a procedure for |
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documenting complaints to the department under this chapter from |
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the time of the submission of the initial complaint to the final |
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disposition of the complaint. The executive commissioner shall |
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publish the procedure in the Texas Register. |
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Sec. 703.106. INSPECTIONS; INVESTIGATIONS. The department |
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or its authorized representative may enter the premises of an |
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applicant for a license at: |
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(1) reasonable times to conduct an inspection |
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incidental to the issuance of a license; and |
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(2) other times that the department considers |
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necessary to ensure compliance with this chapter and the rules |
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adopted under this chapter. |
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[Sections 703.107-703.150 reserved for expansion] |
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SUBCHAPTER D. LICENSURE |
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Sec. 703.151. LICENSE REQUIRED. Unless the person is |
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exempt from this chapter under Section 703.002, a person may not |
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represent that the person is a lactation consultant unless the |
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person holds a license issued under this chapter. |
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Sec. 703.152. APPLICATION. An applicant for a license |
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under this chapter must: |
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(1) submit an application form provided by the |
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department; and |
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(2) include with the application the application fee |
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set by the executive commissioner. |
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Sec. 703.153. GENERAL PROVISIONS RELATING TO LICENSURE. |
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(a) A license holder may exercise all professional rights, honors, |
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and privileges relating to the practice of lactation consulting. |
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(b) A license is the property of the department and must be |
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surrendered on demand. |
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Sec. 703.154. QUALIFICATIONS FOR LACTATION CONSULTANT |
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LICENSE. (a) The department shall issue a license to each |
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qualified applicant for a license as a lactation consultant. |
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(b) An applicant for a license under this section must be an |
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individual and present evidence satisfactory to the department that |
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the person: |
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(1) has the following qualifications: |
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(A) has completed at least 45 contact hours of |
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education specific to lactation consulting in the three years |
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preceding the date the application is filed; |
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(B) has completed at least: |
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(i) 500 hours of supervised clinical |
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practice as part of an accredited education program; or |
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(ii) 1,500 hours of supervised clinical |
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practice outside of an accredited education program; and |
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(C) holds a license or registration to practice a |
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health profession in this state or has completed at least four hours |
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of postsecondary education in each of the following areas: |
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(i) anatomy and physiology; |
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(ii) sociology; |
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(iii) psychology, counseling, or |
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communication skills; |
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(iv) child development; |
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(v) nutrition; and |
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(vi) medical terminology; and |
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(2) has passed an examination described by Section |
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703.155. |
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Sec. 703.155. EXAMINATION. (a) The department shall |
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contract with a nationally or internationally recognized testing |
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organization to develop and administer at least once each calendar |
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year a lactation consultant examination. |
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(b) An examination administered under this section must: |
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(1) be developed by a panel of experts in lactation |
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consulting with the assistance of a qualified psychometrician; |
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(2) be professionally constructed, validated, and |
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administered; |
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(3) be criterion-referenced; and |
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(4) have content based on the results of a |
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comprehensive lactation consultant role delineation study |
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conducted by the department within 10 years of the date on which the |
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examination is administered. |
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Sec. 703.156. NOTIFICATION OF EXAMINATION RESULTS. (a) |
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Not later than the 30th day after the date a person takes a license |
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examination under this chapter, the department shall notify the |
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person of the results of the examination. |
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(b) If the examination is graded or reviewed by a testing |
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service: |
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(1) the department shall notify the person of the |
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results of the examination not later than the 14th day after the |
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date the department receives the results from the testing service; |
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and |
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(2) if notice of the examination results will be |
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delayed for more than 120 days after the examination date, the |
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department must notify the person of the reason for the delay before |
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the 120th day. |
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(c) The department may require a testing service to notify a |
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person of the results of the person's examination. |
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(d) If requested in writing by a person who fails a license |
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examination administered under this chapter, the department shall |
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provide to the person an analysis of the person's performance on the |
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examination. |
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Sec. 703.157. REEXAMINATION. (a) An applicant who fails |
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the examination may take a subsequent examination on payment of the |
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required examination fee. |
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(b) The department shall establish the criteria under which |
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an applicant may take a subsequent examination under this section. |
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(c) The executive commissioner may establish a reasonable |
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examination fee for an applicant requesting reexamination under |
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this section. |
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Sec. 703.158. TEMPORARY LICENSE. (a) The department may |
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issue a temporary license to an applicant who has complied with the |
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education and experience requirements for a license. |
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(b) A temporary license expires on the date the applicant |
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is: |
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(1) issued a license under Section 703.154 after |
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successful completion of the examination; or |
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(2) notified by the department that the applicant has |
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failed the examination. |
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(c) The executive commissioner may set a reasonable fee for |
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a temporary license. |
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Sec. 703.159. APPLICANT LICENSED IN ANOTHER JURISDICTION. |
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The department may waive any prerequisite to obtaining a license |
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under this chapter for an applicant after reviewing the applicant's |
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credentials and determining that the applicant holds a license |
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issued by another jurisdiction that has licensing or registration |
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requirements substantially equivalent to those of this state. |
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Sec. 703.160. LICENSE EXPIRATION AND RENEWAL. (a) A |
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license issued under this chapter expires on the second anniversary |
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of the date of issuance. |
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(b) An applicant for license renewal must apply for renewal |
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before the license expiration date and comply with any renewal |
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requirements adopted by rule under this chapter. |
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Sec. 703.161. STAGGERED RENEWAL DATES. (a) The executive |
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commissioner by rule may adopt a system under which licenses expire |
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on various dates during the year. |
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(b) For the year in which the license expiration date is |
|
changed, license fees payable on the original expiration date shall |
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be prorated on a monthly basis so that each licensed lactation |
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consultant pays only that portion of the license fee that is |
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allocable to the number of months during which the license is valid. |
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(c) On renewal of the license on the new expiration date, |
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the total license renewal fee is payable. |
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[Sections 703.162-703.200 reserved for expansion] |
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SUBCHAPTER E. LICENSE DENIAL AND DISCIPLINARY PROCEDURES |
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Sec. 703.201. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY |
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ACTION. The department may refuse to issue a license to a person |
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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: |
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(1) obtains a license by fraud, misrepresentation, or |
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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 |
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(4) violates this chapter. |
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Sec. 703.202. HEARING ON DENIAL OR DISCIPLINARY ACTION. |
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(a) If the department proposes to deny an application for a |
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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. |
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(b) A hearing under this subchapter is a contested case |
|
under Chapter 2001, Government Code. |
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Sec. 703.203. PROBATION. The department may place on |
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probation a person whose license is suspended. If a license |
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suspension is probated, the department may require the person to: |
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(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 |
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the person attains a degree of skill satisfactory to the department |
|
in those areas that are the basis of the probation. |
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Sec. 703.204. EMERGENCY SUSPENSION. (a) The department |
|
shall temporarily suspend the license of a license holder if the |
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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: |
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(1) action is taken to initiate proceedings for a |
|
hearing before the State Office of Administrative Hearings |
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simultaneously with the temporary suspension; and |
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(2) a hearing is held as soon as practicable under this |
|
chapter and Chapter 2001, Government Code. |
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(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. |
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[Sections 703.205-703.250 reserved for expansion] |
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SUBCHAPTER F. ADMINISTRATIVE PENALTY |
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Sec. 703.251. IMPOSITION OF ADMINISTRATIVE PENALTY. The |
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department may impose an administrative penalty on a person who |
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violates this chapter or a rule adopted under this chapter. |
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Sec. 703.252. AMOUNT OF PENALTY. (a) The amount of an |
|
administrative penalty may not exceed $1,000 for each violation. |
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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. |
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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. |
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Sec. 703.255. HEARING ON DEPARTMENT DETERMINATION. (a) If |
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the person makes a timely request for a hearing, the department |
|
shall: |
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(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. |
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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. |