SENATE, No. 1210

SECTION 1.  AN ACT TO PROVIDE FOR THE LICENSING AND REGULATION OF LACTATION CONSULTANTS.

Short Title.
This Act shall be known and may be cited as the Lactation Consultant Practice Act

SECTION 2.  Chapter 13 of the General Laws, as appearing in the Official Edition, shall be amended by inserting at the end thereof, the following sections:-

Section 98.  Board creation.

 (1)  There is hereby created a board of lactation consultants within the division of professional licensure which shall consist of seven persons who have been residents of the Commonwealth for at least two years prior to their appointments and who are actively engaged in their areas of practice.  The board shall be composed of:

 (a)  Five licensed independent lactation consultants;

 (c)  Two public members who are not associated with or financially interested in the practice of lactation care and services.

 (2)  Board members shall serve for a term of three years and until their successors are appointed and qualified, except that the initial appointments shall be as follows:—

 (a)  Initial appointees shall be certified as independent lactation consultants by the International Board Certified Lactation Consultants.

(b)  Two independent lactation consultants and one public member shall be appointed to serve for three years;

(c)  Two independent lactation consultants and one public member shall be appointed to serve for two years, and
(d)  The remaining independent lactation consultant shall be appointed to serve for one year.

 (3)  Whenever a vacancy shall occur on the board by reasons other than the expiration of a term of office, a successor of like qualifications shall be appointed for the remainder of the unexpired term.  No person shall be appointed to serve more than two successive three year terms. A former member shall again be eligible for appointment after a lapse of one or more years.

 (4)  The members of the board shall be public employees for the purposes of chapter 258 for all acts or omissions within the scope of their duties as board members.

SECTION 99.  Duties and powers of the board.

 (1)  The board shall establish the requirements for licensure and for the standards of professional and ethical conduct; establish appropriate scopes of clinical practice for the various levels of licensure; authorize and oversee appropriate examinations to determine the qualifications of applicants; grant licenses to qualified applicants; establish standards for continuing education; renew licenses, and set and administer administrative penalties and sanctions as defined in sections 196 to 202, inclusive, of chapter 112. All said fees and administrative penalties shall be deposited in the division of professional licensure trust fund established under chapter 10, section 35 V.

 (2)  The board shall administer the provisions of sections 196 to 202, inclusive, of chapter 112 and shall promulgate such rules and regulations as may be necessary to implement the same. Said board shall publish ethical guidelines as a part of its regulations and shall make available to the public a list of its licensees.

 (3)  The board shall promulgate such other rules and regulations necessary to implement and further the purpose of this Act.

Section 100.  Meetings.

Said board shall elect a chairperson annually and shall meet at the call of such chairperson or upon the request of four or more members of the board.  Board members shall serve without compensation but shall be reimbursed for actual and reasonable expenses incurred in the performance of their duties.

All meetings shall be announced and conducted in accordance with applicable statutes defining public meetings with the exception that remote participation is specifically authorized so long as three or more board members are physically present at the public site.  At the discretion of the chair, additional board members, staff, or interested parties may remotely participate by any live, two-way medium such as audio or video teleconferencing. 

SECTION 3.  Chapter 112 of the General Laws, as appearing in the Official Edition, shall be amended by adding the following sections:

Section 196.  As used in this section and sections 197 to 202, inclusive, the following words shall have the meaning indicated:
Agency - any sole proprietorship, partnership, corporation, association, limited liability company, limited liability partnership, or other business organization or entity, whether for profit, not for profit, or governmental, which provides lactation care and services , either exclusively or in combination with other types of goods or services.

Board - the Board of Registration of Lactation Consultants operating within the Division of Professional Licensure.

Division - the Division of Professional Licensure.

Employee - an individual who is subject to the direction and control of an organization or unrelated individual with respect to the nature of the work to be performed and the manner in which such work is to be done, including but not limited to, such matters as work hours, method and amount of compensation, decisions about what services will be provided, decisions about who will receive such services, and other terms and conditions of employment.  The question of whether an individual is or is not an "employee" does not depend upon remuneration for services.

Independent lactation consultant (ILC) - an individual licensed by the board after demonstrating the appropriate education, knowledge, and experience necessary for independent clinical practice.  Board standards shall be equivalent to established national standards such as those set for an International Board Certified Lactation Consultant (IBCLC) by the International Board of Lactation Consultant Examiners.

Lactation care and services - the clinical application of scientific principles and a multidisciplinary body of evidence for the evaluation, problem identification, treatment, education, and consultation to provide lactation care and services to childbearing families. Lactation care and services includes but is not limited to: (1) 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 lactation care plan with demonstration and instruction to parents, and communication to primary health care provider, (4) evaluation of outcomes, (5) provision of lactation education to parents and health care providers, (6) recommendation and use of assistive devices.

Peer counselor- an employee who has received an orientation, but whose formal training does not meet the board requirements for licensure as a lactation consultant.

Practice - rendering or offering to render any clinical lactation care and services to any individual, family, or group of individuals.

Supervisor- For a PC, a supervisor shall be an ILC.  Such supervisors will provide guidance, advice and serve as a referral source.

Section 197.  Exemptions.

Nothing in sections 198 to 202, inclusive, shall be construed to prevent qualified members of other professions or occupations from performing functions consistent with the accepted standards of their respective professions, provided, however, that they do not hold themselves out to the public by any title or description stating or implying that they are lactation consultants or are licensed to practice clinical lactation care and services.

Nothing in sections 198 to 202, inclusive, shall prevent the practice of lactation care and services by students, interns, or persons preparing for practice under the qualified supervision of a licensee.

These sections shall not apply to employees of the United States government or any bureau, division, or agency thereof while in the discharge of the employee’s official duties so long as said employees are performing their duties within the recognized confines of a federal installation regardless of whether jurisdiction is sole federal or concurrent. 

For the purposes of these sections, lactation care and services provided through the federal Women, Infants and Childrens (WIC) program shall be considered exempt.
Section 198.  License Required

 (1)  Individuals shall not practice clinical lactation care and services or hold themselves out as lactation practitioners unless licensed under this Act.

 (2)  All persons engaged in the practice of lactation care and services on the date of enactment of this Act (existing practitioners), may continue to practice until 12 months following promulgation of regulations by the board, or the denial of an application by the board, or the withdrawal of an application, whichever occurs first.

 (3)  At the discretion of the board, persons not meeting education, training, or experience qualifications for any clinical license described in this Act may be considered to have met qualifications providing that they can document three years of experience acceptable to the board. 

Section 199.  Standards for Licensure.

 (1)  The board, subject to a vote of the majority of its members, is authorized to deny a license on the following grounds:

 (a) Conviction by a court of competent jurisdiction of a crime which the board determines to be of such a nature as to render such person unfit to practice;
(b) Violation of ethical standards of such a nature as to render such individual unfit to practice;
(c) Fraud or misrepresentation in obtaining a license, or
(d) Other just and sufficient cause that renders a person unfit to practice.

(2)  Independent lactation consultant (ILC). 

The board shall issue an ILC license to an individual who successfully passes an examination approved by the board and meets such qualifications as promulgated by the board, including at least the following qualifications:

 (a) A baccalaureate degree, or higher, from a board-recognized college or university whose curriculum included appropriate clinical education, plus 2,500 hours of supervised practice;
(b)  An associate’s degree or nursing diploma from a board-recognized program, plus 4000 hours of supervised experience;

(c)  At least three years full-time, or equivalent part-time, experience as a supervised lactation consultant as defined in section 196, or

(d)  Possess significantly more academic education, a significantly-related academic specialty, or substantially more experience.  (Such qualifications will be specified in the board’s regulations or approved by a two-thirds majority vote.) 

3)  Peer Counselor (PC).

The board shall issue a PC license to an individual who meets such qualifications as promulgated by the board, including at least all the following qualifications:

(a)    18 years of age;

(b)    Satisfactory completion of high school, or an equivalent educational program; and

(c)    A recommendation for licensure by an ILC- or LC-level licensee.

(4)Additional license types.

To recognize evolving educational standards, or the emergence of sub-specialties, the board may establish additional licensure types at its discretion.

(5)    Volunteers. 

Individuals who are members of board-recognized volunteer organizations shall be exempt from licensure requirements if:

(a)     They do not hold themselves out as being licensed.

(b)    Their volunteer service is performed without fee or other form of compensation, monetary or otherwise, from the individuals or groups served.

(c)     The individual volunteer receives no form of compensation, monetary or otherwise, except for administrative expenses such as mileage. 

Section 200.  Waiver of Requirements.

The board may promulgate regulations providing procedures for full or partial waiver of the requirements under Section 199 for applicants who hold a valid license or its equivalent issued by another jurisdiction.

Section 201.  Licensure Renewal.

 (1) Licenses issued under this Act shall expire every two years on the anniversary of the birth date of the licensee.  Initial licenses shall be issued for a period of time of from one to two  years, so as to establish a birthday renewal cycle.

 (2) Persons licensed under this Act shall be issued a renewal license only upon:

 (a) Completion of application for renewal in the manner prescribed by the board;

(b) Payment of an appropriate fee; and
(c) Satisfactory completion of board-required continuing education.

 (3) The board may require other such evidence of competency as it shall deem reasonably appropriate as a prerequisite to the renewal of any license provided for in this Act, so long as such requirements are uniform as to application, are reasonably related to the measurement of qualification, performance, or competence, and are desirable and necessary for the protection of the public health.

Section 202.  Scope of practice.

All clinical lactation care and services shall ultimately be conducted under the auspices of an ILC.

(1)  Peer counselors shall be supervised by an ILC.  Solo consultation by a PC is authorized; however, the PC shall at all times have a designated supervisor.  In case of emergency situations, the supervisor must be readily available by telephone or other electronic means.  For ongoing supervision, the supervisor must be available for face-to-face supervision, or the electronic equivalent thereof.    

Section 203.  Disciplinary Requirements.

Complaints alleging any violation of this chapter or board regulation may be initiated by any person or by the board.  The board shall investigate all complaints relating to proper practice of and alleging any violation of this chapter or any rule or regulation of said board.  The board may discipline the licensee if such a licensee has:

(1)   engaged in conduct which places into question the holder’s competence to practice the profession including, but not limited to, gross misconduct or misconduct in the practice of the profession;

(2)   committed fraud or misrepresentation in obtaining a license;

(3)   practiced the profession while the ability to practice has been impaired by alcohol, drugs, physical disability, or mental instability;

(4)   violated any law, rule, or regulation of the board;

(5)   been convicted of a criminal offense which reasonably calls into question the holder’s ability to practice the profession;

(6)   engaged in dishonesty, fraud, or deceit which is reasonably related to the practice of the profession;

(7)   knowingly permitted, aided, or abetted an unlicensed person to perform activities requiring a license, registration, or authority; 

(8)   had a license, certificate, registration, or authority issued by another state or territory of the United States, the District of Columbia, or foreign state or nation with authority to issue such a license, certificate, registration, or authority revoked, canceled, or suspended, not renewed or otherwise acted against, or the licensee has been disciplined, if the basis for the action would constitute a basis for disciplinary action in the commonwealth;

(9)   violated any ethical standard which the board determines to be of such a nature as to render such person unfit to practice as a lactation consultant, such as:

 (a) inappropriate conduct or touching in the practice of lactation care and services;

(b) negligence in the course of professional practice.

The board may, by a majority vote, after a hearing held subject to chapter 30A, impose sanctions on a licensed individual.  The board may undertake the following actions:

 (1) suspend, revoke, cancel, or place on probation such license, certificate, registration, or authority;
(2) reprimand or censure a licensee;
(3) assess upon such licensee an administrative penalty not to exceed $5,000 for each violation;
(4) require such a licensee to perform, for each violation, up to one hundred hours of public service in a manner and time to be determined by the board;
(5) require such licensee to complete additional education and training as a condition of retention or future consideration or reinstatement of said license;
(6) require such licensee to practice under appropriate supervision for a period of time as determined by the board as a condition of retention or future consideration of reinstatement of such license;
(7)  require such licensee to participate in medical treatment, mental health treatment, a substance abuse program, or to undergo drug testing, or a combination thereof, as a condition of retention or future consideration of reinstatement of said license, and
(8) require restitution where appropriate.

The board may, by emergency action summarily suspend or refuse to renew the license of any licensee, whose continued practice poses an immediate threat to the public health, safety or welfare, pending a hearing on the merits of the allegation against the licensee, provided that the board shall hold a hearing pursuant to chapter 30A on the necessity for the emergency action within 10 days of the action.  The board shall issue to the licensee a written summary suspension or refusal to renew which specifies the findings of the board and the reasons for its action and which includes notice of the date, time and place of the aforementioned 10-day hearing.  At the request of the licensee, the board may reschedule this hearing to a date and time mutually agreeable to the board and licensee.  Any such rescheduling of the hearing granted at the licensee’s request shall not operate to lift or stay the summary suspension order. If such hearing is not held within 10 days of the board’s emergency action or at such time as mutually agreed by the board and licensee, the license, against whom summary action was taken shall be deemed reinstated.  At the hearing on the necessity for summary suspension or refusal to renew, the board shall receive evidence limited to determining whether the summary suspension order shall continue in effect pending the final disposition of the complaint.  Following such hearing, any continuing suspension imposed by a board shall remain in effect until the conclusion of any formal proceeding on the merits of the allegations against the holder, including judicial review thereof or withdrawn by such board.  The board shall develop rules and regulations governing the emergency summary suspension procedure authorized by this section.

Nothing in this section shall be deemed a limitation on the board’s authority to impose such sanctions by consent agreement as are deemed reasonable and appropriate by the board.  Any person aggrieved by any disciplinary action taken by the board may, pursuant to section fourteen of chapter 30A, file a petition for judicial review of such disciplinary action with the superior court.  The superior court shall have exclusive jurisdiction over all such petitions, and any such petition shall be limited to a review of the administrative record before the board.

Section 203.  Unlicensed Practice.

The board may assess and collect an administrative penalty up to $5,000 for each violation, per occurrence, upon persons who practice clinical lactation care and services at a time when their license to practice is not valid because it has been suspended, revoked, or canceled under authority of this chapter, and upon any persons who knowingly practice lactation consultation at a time when their has expired.  The board may make application to the appropriate court for an order enjoining unlicensed practice and obtaining a restraining order or other order as may be appropriate. 

Except as otherwise permitted by law, the board, after a hearing held pursuant to chapter 30A, may assess and collect an administrative penalty of up to $5,000 for each violation, per occurrence, upon any person who, without holding the required license engages in the clinical practice of lactation care and services.  The provisions of this section shall not affect, but shall be in addition to, any other penalty or remedy provided by law.  The board may make application to the appropriate court for an order enjoining unlicensed practice, or ordering payment of any assessed administrative penalty, or both.

SECTION 4.  Severability.

The provisions of this Act are severable. If any part of this shall be declared invalid or unconstitutional, such declaration shall not affect the parts which remain.