HOUSE BILL 138
53rd legislature - STATE OF NEW MEXICO - first session, 2017
Linda M. Trujillo and Daniel A. Ivey-Soto
RELATING TO PROFESSIONAL LICENSURE; ENACTING THE LACTATION CONSULTANT PRACTICE ACT; PROVIDING FOR LICENSURE OF LACTATION CONSULTANTS; ESTABLISHING A SCOPE OF PRACTICE FOR LICENSED LACTATION CONSULTANTS; AMENDING A SECTION OF THE NURSING PRACTICE ACT TO PROVIDE FOR BOARD OF NURSING ADMINISTRATION OF FUNDS DEPOSITED IN THE BOARD OF NURSING FUND PURSUANT TO THE LACTATION CONSULTANT PRACTICE ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 6 of this act may be cited as the "Lactation Consultant Practice Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Lactation Consultant Practice Act:
A. "applicant" means an individual seeking a license to provide lactation care and services as a licensee pursuant to the Lactation Consultant Practice Act;
B. "board" means the board of nursing;
C. "breastfeeding education and counseling services" means activities intended to educate, counsel and support mothers and children in meeting their breastfeeding goals, including providing general breastfeeding education, sharing personal experiences and giving encouragement;
D. "consumer" means a mother who is breastfeeding;
E. "international board" means the international board of lactation consultant examiners, which is an independent, international certification body that:
(1) confers an international board-certified lactation consultant credential; and
(2) certifies and verifies educational programs that purport to meet the requirements for offering continuing education recognition that points toward international board recertification;
F. "international board-certified lactation consultant" means a person who holds current certification from the international board after demonstrating the appropriate education, knowledge and experience necessary for independent clinical practice;
G. "lactation care and services" means the clinical application of scientific principles and a multidisciplinary body of evidence for the evaluation, problem identification, treatment, education and consultation for the provision of lactation care and services to families, including:
(1) clinical lactation assessment through the systematic collection of subjective and objective data;
(2) analysis of data and creation of a plan of care;
(3) implementation of a lactation care plan with demonstration and instruction to parents and communication to primary health care providers;
(4) evaluation of outcomes;
(5) provision of lactation education to parents and health care providers; and
(6) recommendation and use of assistive devices;
H. "license" means a license to practice as a lactation consultant that the board issues pursuant to the Lactation Consultant Practice Act;
I. "licensee" means a lactation consultant licensed as a licensed lactation consultant pursuant to the Lactation Consultant Practice Act;
J. "member" means a member of the board;
K. "practice" means a course of business in which lactation care and services are rendered or offered to any individual, family or group of two or more individuals; and
L. "supervisor" means an international board-certified lactation consultant with authority to oversee, guide, advise and serve as the referral source for international board-certified lactation consultant students or interns, other breastfeeding counselors and peer counselors.
SECTION 3. [NEW MATERIAL] BOARD POWERS.--The board may:
A. enforce the provisions of the Lactation Consultant Practice Act and adopt and promulgate rules to execute the provisions of that act;
B. license qualified applicants;
C. discipline licensees;
D. enforce qualification for licensure;
E. establish standards for licensee competence for continuing in or returning to practice;
F. issue orders relating to the practice of lactation care and services in accordance with the Administrative Procedures Act;
G. regulate licensee advertising and prohibit false, misleading or deceptive practices;
H. establish a code of conduct for licensees;
I. request and receive the assistance of state educational institutions or other state agencies;
J. prepare information for consumers that describes the regulatory functions of the board and the procedures by which consumer complaints are filed with and resolved by the board; and
K. establish continuing education requirements for licensees.
SECTION 4. [NEW MATERIAL] LICENSURE REQUIREMENT--QUALIFICATIONS--EXEMPTIONS FROM LICENSURE.--
A. An individual shall not use the title "licensed lactation consultant" unless that individual is a licensee. B. An applicant for a license as a licensee shall:
(1) be at least eighteen years of age;
(2) submit an application completed upon a form that the board prescribes and in accordance with board rules, accompanied by fees required by board rules;
(3) have the following qualifications:
(a) be an international board-certified lactation consultant;
(b) be of good moral character; and
(c) assist the board in obtaining the applicant's criminal history background check by: 1) providing fingerprints on two fingerprint cards for submission to the federal bureau of investigation to conduct a national criminal history background check and to the department of public safety to conduct a state criminal history check; and 2) paying the cost of obtaining the fingerprints and criminal history background checks. An applicant shall have the right to inspect or challenge the validity of the record development by the background check if the applicant is denied certification as established by board rule; and
(4) complete any other requirements the board has established by rule.
C. Nothing in the Lactation Consultant Practice Act shall be construed to affect or prevent the practice of lactation care and services by other persons; provided that a person who is not licensee shall not hold that person out or represent that person's self to be a licensed lactation consultant.
SECTION 5. [NEW MATERIAL] LICENSE TERM--RENEWAL.--
A. A license shall expire biennially in accordance with a schedule determined in board rules.
B. The board shall renew licenses only upon receipt of renewal of licensure fees and evidence of compliance with annual continuing education requirements.
SECTION 6. [NEW MATERIAL] DISCIPLINARY PROCEEDINGS.--
A. In accordance with the procedures contained in the Uniform Licensing Act, the board may deny, revoke or suspend any license held or applied for pursuant to the Lactation Consultant Practice Act, reprimand or place a licensee on probation or deny, limit or revoke a privilege of a licensee desiring to practice or practicing lactation care and services upon grounds that the licensee or applicant:
(1) is guilty of fraud or deceit in procuring or attempting to procure a license;
(2) is convicted of a felony;
(3) is unfit or incompetent;
(4) is intemperate or is addicted to the use of habit-forming drugs;
(5) is guilty of unprofessional conduct as defined by board rules;
(6) has willfully or repeatedly violated any provisions of the Lactation Consultant Practice Act, including any board rule adopted pursuant to that act; or
(7) was authorized to provide lactation care and services by the international board or in any jurisdiction, territory or possession of the United States or another country and was the subject of disciplinary action for acts similar to acts described in this subsection. A certified copy of the record of the international board's disciplinary action or disciplinary action taken by another jurisdiction, territory or possession of the United States or another country is conclusive evidence of the action.
B. Disciplinary proceedings may be instituted by any person, shall be by complaint and shall conform with the provisions of the Uniform Licensing Act. Any party to a hearing may obtain a copy of the hearing record upon payment of costs for the copy.
C. Any person filing a complaint shall be immune from liability arising out of civil action if the complaint is filed in good faith and without actual malice.
D. The board shall not initiate a disciplinary action more than two years after the date that it receives a complaint.
E. The time limitation contained in Subsection D of this section shall not be tolled by any civil or criminal litigation in which the licensee or applicant is a party, arising substantially from the same facts, conduct, transactions or occurrences that would be the basis for the board's disciplinary action.
F. The board may recover the costs associated with the investigation and disposition of a disciplinary proceeding from the person who is the subject of the proceeding.
SECTION 7. Section 61-3-27 NMSA 1978 (being Laws 1968, Chapter 44, Section 23, as amended) is amended to read:
"61-3-27. FUND ESTABLISHED--DISPOSITION--METHOD OF PAYMENT.--
A. There is created a "board of nursing fund".
B. Except as provided in Sections [2 and 3 of this 2003 act] 61-3-10.5 and 61-3-10.6 NMSA 1978, all funds received by the board and money collected under the Nursing Practice Act and the Lactation Consultant Practice Act shall be deposited with the state treasurer. The state treasurer shall place the money to the credit of the board of nursing fund. Any income earned on investment of the fund shall remain in the fund.
C. Payments out of the board of nursing fund shall be on vouchers issued and signed by the person designated by the board upon warrants drawn by the department of finance and administration in accordance with the budget approved by the department.
D. All amounts paid into the board of nursing fund shall be subject to the order of the board and shall only be used for the purpose of meeting necessary expenses incurred in the enforcement of the purposes of the Nursing Practice Act and the Lactation Consultant Practice Act, the duties imposed by [that act] those acts and the promotion of nursing and lactation consultant education and standards in this state. All money unused at the end of the fiscal year shall remain in the board of nursing fund for use in accordance with the provisions of the Nursing Practice Act and the Lactation Consultant Practice Act to further the purposes of [that act] those acts.
E. All funds that may have accumulated to the credit of the board under any previous act shall be continued for use by the board in administration of the Nursing Practice Act and the Lactation Consultant Practice Act.
F. As used in this section, "lactation consultant" means a person licensed by the board pursuant to the Lactation Consultant Practice Act to provide lactation care and services."
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