HOUSE BILL NO. 38
AS AMENDED BY
HOUSE AMENDMENT NO. 2, SENATE AMENDMENT NOS. 1,2,3 & 4
HOUSE AMENDMENT NOS. 3 & 4
AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE DIETITIAN/NUTRITIONIST LICENSURE ACT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :
Section 1. Amend Title 24 of the Delaware Code by deleting existing Chapter 38 and substituting in lieu thereof a new Chapter 38 to read as follows:
“Chapter 38. DIETITIAN/NUTRITIONIST LICENSURE ACT
§ 3801. Statement of Purpose.
The intent of this Chapter is to establish minimum standards of education, experience and examination for professional dietitians/nutritionists so that the public can readily identify those who meet these minimum standards. It is also the intent of this Chapter to provide a Licensure process for professional dietitians/nutritionists, a scope of practice for dietetic and nutrition therapy, and to establish ‘Licensed Dietitian/Nutritionist’ as the state-recognized legal title for professional dietitians/nutritionists. It is also the intent of this chapter to assure consumers the right to choose from whom they receive information and advice. Recognition of these goals will protect the health of the public by broadening access to appropriate dietetic and nutrition therapy.
§ 3802. Definitions.
The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Chapter, except where the context clearly indicates a different meaning:
(1) ‘L.D.N.’ shall be the abbreviation for the title ‘Licensed Dietitian/Nutritionist’.
(2) ‘License’ shall mean any document which indicates that a person is currently licensed by the Board of Dietetics/Nutrition.
(3) ‘Licensed dietitian/nutritionist’ shall mean a person holding a current license under this Chapter.
(4) ‘Board’ shall mean the State Board of Dietetics/Nutrition.
(5) ‘Dietetics/nutrition’ shall mean the integration and application of principles derived from the sciences of food, nutrition, biochemistry, physiology and behavior as an integral part of health care delivery to achieve and maintain a person's health throughout the life cycle. Its application to health care is both preventive and in response to an illness, injury or condition. The application of dietetics/nutrition to health care shall be called dietetic and nutrition therapy. The terms ‘dietetics’ and ‘nutrition’ are used interchangeably in this Chapter.
(6) ‘Dietitian and/or nutritionist’ shall mean a person who engages in the provision of nutrition services. The terms ‘nutritionist’ and ‘dietitian’ are used interchangeably in this Chapter.
(7) ‘Dietetic and nutrition therapy’ shall mean the scope of services utilized in the delivery of preventive nutrition services and/or nutrition therapy. It involves an assessment of the individual's specific nutritional needs and the development and implementation of an intervention plan. The intervention plan can include nutrition education, counseling, administration and monitoring of specialized nutrition support and/or referrals for additional services. This application and practice of ‘dietetic and nutrition therapy’ shall include the following Scope of Practice:
SCOPE OF PRACTICE:
(a) Nutrition Assessment to include the establishment of nutritional care plans, including the development of nutritional related priorities, goals and objectives.
(b) Provision of nutrition counseling or education as components of preventive, and restorative health care.
(c) Evaluation and maintenance of appropriate standards of quality in food and nutrition.
(d) Evaluation and education of nutrient-drug interactions.
(e) Interpreting and recommending interventions to meet nutrient needs relative to individual health status, including but not limited to medically prescribed diets, tube feedings & specialized intravenous solutions.
(f) Development, administration, evaluation and consultation regarding nutritional care standards.
(g) Conduct independent research or collaborate in research areas including, but not limited to food and pharmaceutical companies, universities and hospitals by directing or conducting experiments to answer critical nutrition and food science questions and develop nutrition recommendations for the public.
(h) Direct supervision of registered dietetic technicians.
(9) ‘Substantially related’ means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform one (1) or more of the duties or responsibilities necessarily related to the provision of dietetics/nutrition therapy services.
§ 3803. Board of Dietetics/Nutrition; appointment; composition; qualifications; term of office; suspension or removal; compensation.
(a) Appointment. -- The Board of Dietetics/Nutrition shall consist of 5 members who are residents of this State and shall be appointed by the Governor. Members shall be appointed so that the terms of three (3) members shall expire two (2) years after the initial appointment and that the terms of the remaining two (2) members shall expire three (3) years after the initial appointment. Thereafter, appointments shall be made for a term of 3 years. A member of the Board shall be eligible for reappointment, but a member shall not be appointed to serve more than two (2) consecutive terms. Each term of office shall expire on a date specified in the appointment except that each member shall serve until a successor is duly appointed. A member who was initially appointed to fill a vacancy may successively serve for only 1 additional full term.
(b) Composition and provisions. -- Three members shall be Delaware licensed dietitian/nutritionists. The remaining two (2) members shall be from the general public, who are not licensed dietitians/nutritionists and are not in any way, connected to the provision of nutrition services either monetarily, through business activity, through educational activity or by their immediate family relations. No member of the Board, while serving on the Board, shall be a president, chair or other elected official of any State professional association for dietitians or nutritionists. The provisions set forth for ‘employees’ in Chapter 58 of Title 29 shall apply to all members of the Board, and to all appointed by or otherwise employed by the Board.
(c) Suspension or removal. -- A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance or malfeasance. A member subject to disciplinary proceedings shall be disqualified from the Board business until the charge is adjudicated, or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.
(d) Compensation. -- Each member of the Board shall receive not more than $500 in any calendar year for any services as a member of the Board, including not more than $50 for each meeting which such member attends during that year.
§ 3804. Officers; meetings; quorum.
(a) The Board shall elect annually from its membership a chair, vice-chair and secretary.
(b) The Board shall hold a regularly scheduled business meeting at least once each quarter and at such other times as the chair deems necessary or at the request of a majority of Board members.
(c) A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least three (3) members. Any member who fails to attend three (3) consecutive meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall automatically, upon such occurrence, be deemed to have resigned from office and a replacement shall be appointed.
(d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Professional Regulation. At any hearing in which evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it.
§ 3805. Powers and Duties.
The Board of Dietetics/Nutrition shall have the authority to:
(a) Formulate rules and regulations with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act, Chapter 101 of Title 29 of the Delaware Code. Each rule or regulation shall implement or clarify a specific section of this Chapter.
(b) Grant or deny a license to an applicant in accordance with the qualifications criteria set forth in this Chapter.
(c) Evaluate the credentials of all persons applying for a license as a licensed dietitian/nutritionist in this State, in order to determine whether such persons meet the qualifications for licensing set forth in this Chapter.
(d) Designate the application form to be used by all applicants and to process all applications.
(e) Designate the examination to be taken by persons applying for licensure where such examination is required by this Chapter.
(f) Refer all complaints from practitioners and from the public to the Division of Professional Regulation for investigation pursuant to § 8735 of Title 29 of the Delaware Code and assign a member of the Board to assist the Division in an advisory capacity with the investigation.
(g) Hold hearings and take such actions as are permitted under the provisions of the Administrative Procedures Act, Chapter 101 of Title 29, and this Chapter.
(h) Where it has been determined after a disciplinary hearing, that disciplinary action should be imposed, to designate and impose appropriate disciplinary action after time for appeal has lapsed.
(i) Issue cease and desist orders, injunctive orders and/or seek the imposition of other civil penalties defined in this Chapter, and/or fine persons for violating cease and desist orders and/or sue persons for recovery of fines imposed under this Chapter, after a hearing conducted in accordance with this Chapter and the Administrative Procedures Act.
(j) Prepare and maintain a registry of licensed dietitians/nutritionists.
(k) promulgate regulations specifically identifying those crimes which are substantially related to the provision of dietetic and nutrition therapy.
§ 3806. Qualifications of applicants.
(a) An applicant who is applying for licensure under this chapter shall have the following qualifications:
(1) A minimum of a Baccalaureate degree from a United States (U.S.) regionally accredited college or university. Applicants who have obtained their education outside the U.S. and its territories must have their academic degree(s) validated as equivalent to the Baccalaureate or Master's degree conferred by a regionally accredited college or university in the U.S.; or
(2) A major course of study in human nutrition, nutrition education, food and nutrition, dietetics, or food systems management; and
(3) Submitted proof to the Board of the completion of a supervised practice in dietetics/nutrition which consists of a documented supervised practice experience component in dietetics practice, of not less than 900 hours under the supervision of a Registered Dietitian, a state's licensed healthcare practitioner or an individual with a doctoral degree conferred by a U.S. regionally accredited college or university with a major course study in human nutrition, nutrition education, food and nutrition, dietetics, or food systems management. Supervised practice experience must be completed in the United States or its territories. Supervisors who obtained their doctoral degree outside the United States and its territories must have their degree validated as equivalent to the doctoral degree conferred by a U.S. regionally accredited college or university.
(4) Appear at a time and place designated by the Board and submit to examination as to the person’s qualification for registration as a L.D.N.
(b) Persons who provide evidence of current registration as a registered dietitian awarded by the Commission on Dietetic Registration, credentialing agency of the American Dietetic Association shall be considered to have met the qualifications for licensure under this Chapter in lieu of subsection (a) of this Section.
(c) The Board may refuse or reject an applicant if, after hearing, the Board finds that the applicant meets any of the following conditions or actions:
(1) those specified in §3811(a)(1)-(5) of this Chapter.
(2) has been convicted of a crime that is substantially related to the provision of dietetic and nutrition therapy. However, after a hearing, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (c)(2) of this section, if it finds all of the following:
a. More than five (5) years have elapsed since the applicant has fully discharged all imposed sentences. As used herein, the term ‘sentence’ includes, but is not limited to, all periods of modification of a sentence, probation, parole or suspension. However, sentence does not include fines, restitution or community service, as long as the applicant is in substantial compliance with such fines, restitution and community service.
b. The applicant is capable of performing dietetic and nutrition services in a competent and professional manner.
c. The granting of the waiver will not endanger the public health, safety or welfare.
(3) has been the recipient of any administrative penalties from any other jurisdiction or jurisdictions regarding the applicant’s practice of dietetic and nutrition therapy, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has entered into any ‘consent agreements’ which contain conditions placed by a Board on the applicant’s professional conduct and practice, including any voluntary surrender of a license in lieu of discipline. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure.
(d) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.
(e) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification, has imposed higher or different standards for the applicant than for other applicants, or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.
(f) The board may waive the requirements of this section if the applicant presents with satisfactory evidence of the following in their application for licensure to practice dietetics and provided that the application is filed not later than one year after the effective date of this bill: Successful completion of a baccalaureate or higher degree in nutrition from an institution of higher education that is approved by a regional accreditation agency that is recognized by the council on postsecondary accreditation and documentation and at least 10 years or greater work experience in the field of nutrition. This individual would be subject to maintain continuing education as outlined in this bill.
§ 3807. Reciprocity.
Reciprocity will be provided for registered, certified or licensed dietitians or registered, certified or licensed nutritionists from other states provided that the standards for registration, certification and/or licensure in that state are reasonably equivalent to those set forth in § 3806 of this Chapter. Reciprocity applicants must follow the rules and regulations for application established under § 3809 of this Chapter.
§ 3808. Continuing education.
In order to maintain eligibility for licensure, renewal applicants must submit proof of continuing education. Thirty hours of continuing education is required during the two (2) year licensure period. Continuing education hours must meet the requirements of the American Dietetic Association to be valid.
§ 3809. Issuance and renewal of licenses; fees.
(a) The amount charged for each fee imposed under this Chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board and the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting on its behalf, shall compute for each separate service or activity the appropriate Board fees for the coming year.
(b) The Board shall issue a license to each applicant who meets the requirements of this Chapter for licensure as a dietitian/nutritionist and who pays the established fees.
(c) Each license shall be renewed biennially, in such manner as is determined by the Division and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the board.
(d) The Board, in its rules and regulation, shall determine the period of time within which a licensee may still renew the licensee’s license and determine late fees associated with the license renewal, notwithstanding the fact that such licensee has failed to renew on or before the renewal date, provided, however that such period shall not exceed one (1) year.
(e) A licensee, upon written request, may be placed in an inactive status for no more than five (5) years. Such person, who desires to reactivate that person’s license, shall complete a Board-approved application form, submit a renewal fee, and proof of fulfillment of continuing education requirements in accordance with the rules and regulation of the Board.
§ 3810. Licensure required.
No person shall represent oneself or engage in the practice of dietetics and nutrition therapy as a licensed dietitian/nutritionist in this State or use the title licensed dietitian, licensed nutritionist, nutritionist, dietitian, use the letters L.D.N., or any combination of above terms and/or abbreviations unless such a person is licensed under this Chapter. This Chapter does not prohibit or restrict:
(a) Any person licensed in this State under any other Act from engaging in the practice for which he or she is licensed.
(b) The practice of dietetic and nutrition therapy by a person who is employed by the United States or State government or any of its bureaus, divisions, or agencies while in the discharge of the employee’s official duties.
(c) The supervised practice of dietetic & nutrition therapy of person pursuing a course of study leading to a degree in dietetics, nutrition or an equivalent major, as authorized by the Board, from a regionally accredited school or program, if the activities and services constitute a part of a supervised course of study and if the person is designated by a title that clearly indicates the person’s status as a student. This period is not to exceed two years unless written approval is provided by the Board. The individual will be supervised by an individual licensed under this chapter.
(d) An herbalist, retailer or other person who does not hold himself out to be a dietitian or nutritionist by using one or more of the titles restricted by this chapter, who makes recommendations regarding lifestyle, or who markets, distributes, sells, or who recommends, advises, or furnishes non-fraudulent information about, herbs, vitamins, minerals, amino acids, carbohydrates, sugars, enzymes, food concentrates, foods, other food supplements, or dietary supplements. For purposes of this paragraph, fraud shall be defined as an intentional misrepresentation for financial gain. Legitimate disagreement about the role of the above listed nutrients and foods as they apply to human nutrition shall not, in and of itself, constitute fraud.
(e) The practice of the tenets of any religion, sect or denomination whatsoever, provided that a member of such religion, sect or denomination shall not designate himself by any other term or title which implies that such member is engaged in the practice of dietetic & nutrition therapy.
(f) A person presenting a general program of instruction for weight control need not be a licensed dietitian/nutritionist provided the general program is approved in writing by:
(1) A dietitian registered by the CDR of the ADA; or
(2) A licensed physician.
(g) The practice of dietetic and nutrition therapy by a person who is eligible to take the registration examination for dietitians as administered by the Commission of Dietetic Registration, the credentialing agency of the American Dietetic Association. This individual is excluded under this Chapter for a period of one year upon completion of qualifying experience as set forth by the American Dietetic Association.
§ 3811. Grounds for Discipline/Sanctions/Penalties of Unlicensed Practice;
(a) The following conditions and actions of an applicant or L.D.N. may result in disciplinary action as set forth in subsection (b) of this Section if, after a hearing, the Board finds that an applicant or L.D.N.:
(1) Has employed or knowingly cooperated in fraud or material deception in order to be licensed; or
(2) Has engaged in illegal, incompetent or negligent conduct in the provision of dietetic and nutrition therapy; or
(3) Has as a dietitian/nutritionist or otherwise, in the practice of the profession, knowingly engaged in an act of consumer fraud or deception, or engaged in the restraint of competition, or participated in price-fixing activities; or
(4) Has violated the Code of Ethics as established by the American Dietetic Association; or
(5) Has violated a lawful provision of this Chapter or any lawful rule or regulation established hereunder; or
(6) Has been convicted of a crime that is substantially related to the provision of dietetic and nutrition therapy;
(b) Persons regulated under this Chapter who have been determined to be in violation of this Chapter shall be subject to the following disciplinary actions:
(1) Issuance of a letter of reprimand.
(3) Placement on probationary status.
(4) Denial of license.
(5) Suspension of license.
(6) Revocation of license.
(c) As a condition to reinstatement of a suspended license or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.
(d) Penalties of Unlicensed Practice.
(1) Where the Board has determined, upon notice and hearing pursuant to Chapter 101 of Title 29 that a person is engaged in the practice of dietetics and nutrition therapy and regulated by this Chapter without having lawfully obtained a license or that a person previously licensed under this Chapter is engaged in the practice of dietetic and nutrition therapy as regulated by this Chapter notwithstanding that the person's license has been suspended or revoked, the Board may issue a cease and desist order. In addition to the power to issue a cease and desist order, the Board may seek an injunctive order prohibiting such unlawful practice and/or seek the imposition of other civil penalties defined by this Chapter.
(2) Upon notice and hearing pursuant to Chapter 101 of Title 29, the Board may fine any person who violates such cease and desist order not less than $100 or more than $1000. Each day a violation continues may be deemed a separate offense in the Board's discretion.
(3) Any person who violates any provisions of this Chapter or any rules and regulations promulgated hereunder shall be liable for a civil penalty of not more than $2,500 for the first offense; and not more than $5,000 for the second and each subsequent offense, which penalty may be sued for, and recovered by the Board. Nothing in this Section shall be construed to prevent prosecution under, or be inconsistent with, Chapter 5 of Title 11.
§ 3812. Administrative procedures.
All procedures under this Chapter shall be governed by the Delaware Administrative Procedures Act, Chapter 101 of Title 29.”.
Section 4. Rules and Regulations.
Rules and regulations in effect on the date of enactment of this Act shall remain valid to the extent they are not inconsistent with this Act.
Section 5. Current Members of the Committee.
Members who are currently serving on the Committee shall complete their terms in office as members of the Board.
Section 6. Current Certificate Holders.
All individuals holding a valid active certification for dietetics/nutrition shall be issued a license upon the enactment of this Bill.
Section 7. The Act shall become effective two (2) years following its enactment into law.”.
Approved June 21, 2007