H. B. 4136
(By Mr. Speaker, Mr. Chambers, and Delegates Adkins,
Sprouse, Amores and Leach)
(Originating in the House Committee on Finance)
[February 27, 1996]
A BILL to amend chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-five,
relating to licensed dietitians generally; requiring a
license to practice; creating exceptions; defining terms;
creating a board of dietitians; providing for terms of
service; defining scope of authority and creating duties;
creating a special revenue account within the state
treasury; providing for expenditures, appropriations and
transfers; issuance of interim permits; establishing fees;
qualifications for licensure; establishing standards and
criteria for licensing; license renewal; waivers;
reinstatement; contents of licenses; provisions for denying,
suspending or revoking licenses; administrative hearings and
procedures; judicial review; prohibitions and penalties; and
termination of the board.
Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, onethousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-five, to
read as follows:
ARTICLE 35. BOARD OF DIETITIANS.
§30-35-1. License to practice.
(a) After the thirtieth day of June, one thousand nine
hundred ninety-seven, who represents or implies to the public by
use of the title "dietician" or "licensed dietician" or any other
title intended to convey the impression that he or she is
authorized to practice dietetics in this state must be licensed
pursuant to this article.
(b) No person may use any title, sign, card or other device
which indicates that such person is a licensed dietitian unless
expressly authorized and licensed pursuant to the provisions of
this article: Provided, That a dietitian registered by the
commission on dietetic registration may use the title of
registered dietitian: Provided, however, That the requirements
and provisions of this article do not apply to any person
employed as a cook at any public or private educational
institution in this state.
(c) Nothing in this article may be construed to affect
individuals who furnish nutrition information on food, food
materials or dietary supplements or who engage in explanation to
customers about food, food materials or dietary supplements in
connection with the marketing and distribution of those products,
and who do not use the title "dietician" or "licensed dietician."
As used in this article, the following terms shall have the
meanings ascribed to them:
(a) "Board" means the West Virginia board of licensed
(b) "Commission on dietetic registration" means the
commission on dietetic registration that is a member of the
national commission for health certifying agencies;
(c) "Fund" means the board of examiners for dietitians'
administrative fund created pursuant to the provision of section
five of this article;
(d) "Licensed dietitian" means any person who has obtained
a license to practice as a licensed dietitian from the West
Virginia board of licensed dietitians; and
(e) "Registered dietitian" means a person registered by the
commission on dietetic regulation.
§30-35-3. Board of licensed dietitians.
(a) There is hereby created the West Virginia board of
licensed dietitians. The board consists of five members who
shall be appointed by the governor, by and with the advice and
consent of the Senate. The governor shall make appointments from
a list of not less than eight names submitted to the governor by
the West Virginia dietetic association. Each member of the board
shall be a citizen of the United States and a resident of this
state. Four members shall have experience as a registered or
licensed dietitian for a minimum of three years preceding the
date of appointment. One member of the board shall be a lay
person who is not a registered or licensed dietitian and notsubject to the practice requirements of this subsection.
(b) The governor shall appoint initially one member for a
term of one year, one for a term of two years, one for a term of
three years and two for a term of four years. Thereafter, the
members of the board shall be appointed for overlapping terms of
four years. No member of the board may serve more than four
(c) In the event a board member is unable to complete a
term, the governor shall appoint a person with similar
qualifications to complete the unexpired term. Each vacancy
occurring on the board shall be filled by appointment within
sixty days after such vacancy is created.
(d) Each member of the board shall be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of the board member's duties, not to exceed fifty
dollars per day.
(e) At its initial meeting, and annually thereafter, the
members shall elect a chair, vice chair and secretary. The chair
shall preside over the meetings and hearings of the board. The
vice chair shall assume the chair's duties in the absence of the
chair. All meetings shall be general meetings for the
consideration of any matter which may properly come before the
board. A majority of the board constitutes a quorum for the
transaction of business. The board shall meet at least once a
year and at such other times and places as it may determine; and
shall meet on the call of the chair. It shall be the duty of the
chair to call a meeting of the board on the written request ofthree members thereof. The board shall keep an accurate record
of all proceedings and maintain such board records. The board
may employ personnel necessary to accomplish the performance of
its duties: Provided, That the board may not expend more than it
has available to it solely through the fees established in this
§30-35-4. Powers and duties of board.
(a) The board may, in its discretion, perform the following
functions and duties, depending on the financial resources
available to the board:
(1) Promulgate rules in accordance with the provisions of
chapter twenty-nine-a of this code to implement and effectuate
the provisions of this article, including, but not limited to,
legislative rules establishing the following:
(A) A code of professional ethics;
(B) Continuing education requirements and standards;
(C) Examination, licensure and renewal requirements of duly
qualified applicants; and
(D) Procedures and guidelines for the suspension or
revocation of a license.
(2) Adopt procedural and interpretive rules in accordance
with the provisions of chapter twenty-nine-a of this code;
(3) Adopt an official seal;
(4) Conduct license examinations of duly qualified
(5) Issue and renew licenses and issue interim permits to
duly qualified applicants;
(6) Impose and collect fees for the issuance and renewal of
permits or licenses;
(7) Suspend, revoke and reinstate licenses;
(8) Conduct hearings on licensing issues and any other
matter properly within the jurisdiction of the board;
(9) Maintain a record of all proceedings of the board; and
(10) Submit a biennial report to the governor describing
the activities of the board.
(b) The legislature finds and declares that this board
is intended to be fully self supported through the fee structure
provided for in this article, and that the board shall not
require any legislative appropriation beyond the revenues the
board receives in fees. Accordingly, in the event the board has
insufficient moneys to perform its duties under this article, the
board shall priortize its duties under this article so at all
times to remain within the money available to it through the fees
established in this article. The board created in this article
has only discretionary duties.
§30-35-5. Fees; special revenue account; expenditures and
(a) All fees and other moneys collected by the board
pursuant to the provisions of this article shall be deposited in
an appropriated special revenue account designated the "board of
examiners for licensed dietitians," which is hereby created in
the state treasury.
(b) All expenses incurred by the board shall be paid from
the special fund provided in subsection (a) herein. Nocompensation or expense incurred pursuant to the provisions of
this article may be charged against the general revenue funds of
this state. Expenditures shall be made only in accordance with
appropriation by the Legislature pursuant to the provisions of
article three, chapter twelve of this code and upon the
fulfillment of the provisions of article two, chapter five-a of
this code. Expenditures from the special fund shall be for the
purposes set forth in this article and are not authorized from
collections: Provided, That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-six,
expenditures are authorized from collections rather than pursuant
to an appropriation by the Legislature.
(c) Amounts collected which are found from time to time to
exceed the funds needed to effectuate the purposes set forth in
this section may be transferred to other accounts or funds and
redesignated for other purposes upon appropriation by the
§30-35-6. Provisional permits; renewals; fees.
(a) The board may issue a provisional permit to engage in
practice as a licensed dietitian to any person who has not met
the experience requirements set forth in this article upon the
filing of an application and submission of evidence of successful
completion of the education requirements of this article. A
provisional permit expires one year from the date of issuance.
Renewals may be issued for a period not to exceed three years
upon request by the applicant and submission of a satisfactory
explanation for the applicant's failure to become licensed.
(b) The fee for a provisional permit or renewal is fifty
dollars, which shall be submitted with the application. All fees
collected shall be deposited to the credit of the fund provided
in section five of this article.
§30-35-7. Qualifications; licensure; examinations; waivers and
(a) An applicant for a license to engage in practice as a
licensed dietitian shall submit to the board written evidence,
verified by oath, that he or she:
(1) Complies with the code of ethics adopted by the board;
(2) Has completed a major course of study in human
nutrition, dietetics, food systems management or equivalent
thereof and possesses a baccalaureate or postbaccalaureate
(3) Has completed a planned continuous professional
experience component in dietetic practice of not less than nine
hundred hours under the supervision of a registered or licensed
(b) Each applicant is required to pass a written examination
demonstrating competence in the discipline of dietetics and
nutrition. Each written examination may be supplemented by an
oral examination. The board shall determine the times and places
(c) Upon successfully passing such examination or
examinations, the board shall issue to the applicant a license to
engage in practice as a licensed dietitian. In the event an
applicant has failed to pass examinations on three occasions, theapplicant shall, in addition to the other requirements of this
section, present to the board such other evidence of his or her
qualifications as the board may prescribe.
(d) Prior to the thirtieth day of June, one thousand nine
hundred ninety-seven, the board shall waive the examination
requirements of this section and shall grant a license to any
(1) Is registered by the commission on dietetic registration
as a registered dietitian; or
(2) Possesses a baccalaureate or postbaccalaureate degree
and has completed a major course of study in the fields of human
nutrition, dietetics, food systems management or equivalent, as
approved by the board, and has been engaged in the practice of
dietetics or nutrition for three of the last ten years.
(e) Upon application and submission of the applicable fee,
the board may waive the examination requirements of this section
and issue a license to practice as a licensed dietitian to an
applicant who is registered by the commission on dietetic
registration or who has been duly licensed as a nutritionist or
dietitian under the laws of another state if the standards for
licensing in that state are no less stringent than those required
under the provisions of this article.
(f) Any person applying for a dietitian license shall
submit a fee of fifty dollars with the application to the board,
which fee shall be deposited to the credit of the fund provided
in section five of this article.
§30-35-8. Renewal of licenses; reinstatement; fees; penalties;inactive lists.
(a) The license of every person licensed under the
provisions of this article shall be annually renewed except as
otherwise provided by this section. At such times as the board,
in its discretion, may determine, the board shall mail a renewal
application to every person whose license was initially granted
or renewed during the previous calendar year. All persons
seeking renewal shall submit a completed application and a fifty-
dollar annual renewal fee. Upon receipt of the application and
fee, the board shall verify the accuracy of the application and,
if it is accurate, issue to the applicant a certificate of
renewal of the license for the current year. The certificate of
renewal entitles the holder thereof to practice dietetics for the
period stated on the certificate of renewal.
(b) Any licensee who allows his or her license to lapse by
failing to renew for a period not exceeding three years, may be
reinstated by the board upon receipt of a satisfactory
explanation for such failure to renew his or her license and
payment of the annual renewal fee plus a reinstatement fee of
(c) Any person allowing his or her license to lapse for a
period exceeding three years is required, to be reinstated as a
licensed dietitian, to pass a written examination established by
the board, and to pay to the board a licensing fee of fifty
(d) Any person engaged in the practice of licensed dietetics
during the time his or her license has lapsed is in violation ofthe provisions of this article and is subject to the penalties
provided in section fourteen of this article.
(e) Any licensed dietitian who desires to retire from
practice temporarily shall submit a written notice of such
retirement to the board. Upon receipt of such notice the board
shall place the name of such person upon the inactive list. Any
person remaining on the inactive list may not engage in the
practice of licensed dietetics in this state and is not subject
to the payment of any renewal fees. Upon submission of an
application for renewal of license and payment of the renewal fee
for the current year, a licensed dietitian may resume active
§30-35-9. Contents of license or provisional permit.
Each license or provisional permit issued by the board shall
bear a serial number, the full name of the applicant, the date of
expiration of any such license, or the date of issuance and
expiration of any such provisional permit and the seal of the
board, and shall be signed by the secretary of the board. The
licensee shall display the license in his or her place of
business in view of the public.
§30-35-10. Denial, revocation or suspension of license; grounds
(a) The board may at any time upon its own motion, and shall
upon the verified written complaint of any person, conduct an
investigation to determine whether there are grounds for denial,
suspension or revocation of a license issued pursuant to the
provisions of this article.
(b) The board may deny, revoke or suspend any license to
engage in the practice of licensed dietetics issued pursuant to
the provisions of this article, or any application therefor, or
may otherwise discipline a licensee or applicant upon proof that
he or she:
(1) Is or was guilty of fraud or deceit in procuring or
attempting to procure a license or renewal to practice as a
(2) Has been grossly negligent or exhibited unprofessional
or unethical conduct in the practice as a licensed dietitian;
(3) Is habitually intemperate or is addicted to the use of
alcohol or controlled substances;
(4) Is mentally incompetent; or
(5) Has willfully or repeatedly violated any of the
provisions of this article.
§30-35-11. Procedures for hearing.
(a) Whenever the board denies an application for any
original or renewal license or denies an application for a
license or suspends or revokes any license, it shall make an
interim order to that effect and serve a copy thereof on the
applicant or licensee by certified mail, return receipt
requested. Such order shall state the grounds for the action
taken and shall require that any license or temporary permit
suspended or revoked thereby be returned to the board by the
holder within twenty days after receipt of the copy of such
(b) Any person adversely affected by any such order isentitled to a hearing thereon pursuant to the provisions of
article five, chapter twenty-nine-a of this code if, within
twenty days after receipt of a copy of the order, he or she files
with the board a written demand for such hearing. A demand for
hearing shall operate automatically to stay or suspend the
execution of any order. The board may require the person
demanding such hearing to give reasonable security for the cost
of the hearing. If such person does not substantially prevail at
the hearing, the costs therefor shall be assessed against him or
her and may be collected by civil action or other proper remedy.
(c) Upon a receipt of a written demand for a hearing, the
board shall set a time and place therefor not less than ten and
not more than thirty days thereafter. Any scheduled hearing may
be continued by the board upon its own motion or for good cause
shown by the person demanding the hearing.
(d) The provisions of article five, chapter twenty-nine-a
of this code apply to and govern the hearing and administrative
procedures in connection therewith.
(e) All administrative hearings shall be conducted by a
quorum of the board. For the purpose of conducting any such
hearing any member of the board may issue subpoenas and subpoenas
duces tecum which shall be issued and served pursuant to the
provisions of section one, article five, chapter twenty-nine-a of
(f) At any hearing the person who demanded the same may
represent himself or herself or be represented by an attorney
admitted to practice in this state.
(g) After any such hearing and consideration of all
testimony, evidence and record in the case, the board shall
render its decision in writing. The written decision of the
board shall be accompanied by findings of fact and conclusions of
law as specified in section three, article five, chapter twenty-
nine-a of this code. A copy of such decision and accompanying
findings and conclusions shall be served by certified mail,
return receipt requested, upon the person demanding such hearing,
and the attorney of record.
(h) The decision of the board is final unless reversed,
vacated or modified upon judicial review thereof in accordance
with the provisions of section twelve of this article.
§30-35-12. Judicial review.
(a) Any applicant or licensee adversely affected by a
decision of the board rendered after a hearing held pursuant to
the provisions of section eleven of this article is entitled to
judicial review thereof. All of the provisions of section four,
article five, chapter twenty-nine-a of this code apply to, and
govern, such review.
(b) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
§30-35-13. Actions to enjoin violations.
(a) Whenever it appears to the board that any person has
been or is violating or is about to violate any provision of this
article or any final decision of the board, the board may applyin the name of the state to the circuit court of the county in
which the violation or violations or any part thereof has
occurred, is occurring or is about to occur, or the judge thereof
in vacation, for an injunction against the person and any other
persons who have been, are or are about to be, involved in any
practice, act or omission, so in violation, enjoining the person
or persons from any violation or violations. Such application
may be made and prosecuted to conclusion regardless of whether
any violation has resulted or shall result in prosecution or
conviction pursuant to the provisions of section fourteen of this
(b) Upon application by the board, any circuit court of
this state with appropriate jurisdiction may, by mandatory or
prohibitory injunction, compel compliance with the provisions of
this article and all final decisions of the board. The court may
issue a temporary injunction in any case pending a decision on
the merits of any application filed.
(c) The judgment of the circuit court upon any application
permitted by the provisions of this section shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and
within the time provided by law for appeals from circuit courts
in other civil cases.
§30-35-14. Prohibitions and penalties.
(a) It is a misdemeanor for any person, corporation or
(1) Sell, fraudulently obtain, furnish or assist in selling,fraudulently obtaining or furnishing any dietitian license or
(2) Engage in the practice as a licensed dietitian under
cover of any diploma, license or record illegally or fraudulently
(3) Represent or imply to the public that he or she is
authorized to use the title "dietician" or "licensed dietician"
or any other title intended to convey that impression, unless
duly licensed pursuant to the provisions of this article.
(4) Engage in the practice as a licensed dietitian during
the time his or her license is suspended or revoked; or
(5) Otherwise violate any provisions of this article.
(b) Any person, corporation or association who violates the
provisions of subsection (a) of this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than fifty dollars nor more than one hundred dollars.
§30-35-15. Termination of board.
The board of examiners for licensed dietitians shall be
terminated pursuant to the provisions of article ten, chapter
four of this code, on the first day of July, two thousand, unless
sooner terminated, continued or reestablished pursuant to the
provisions of such article.
Article thirty-five, chapter thirty is new; therefore,
strike-throughs and underscoring have been omitted.