H. B. 2533
(By Delegates Morgan, Stephens, Diserio, Hartman, Ferns,
Jones, Paxton and Smith, P.)
[Introduced February 19, 2013; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to repeal §30-35-2a of the Code of West Virginia, 1931, as
amended; to amend and reenact §30-35-1, §30-35-2, §30-35-3,
§30-35-4, §30-35-5, §30-35-6, §30-35-7, §30-35-8, §30-35-9,
§30-35-10, §30-35-11, §30-35-12, §30-35-13 and §30-35-14 of
said code; and to amend said code by adding thereto four new
sections, designated §30-35-15, §30-35-16, §30-35-17 and
§30-35-18, all relating to the practice of dietetics;
providing that it is unlawful to practice dietetics without a
license; defining terms; providing board member
qualifications; describing conditions and terms of board
appointments; describing powers and duties of the board;
defining board rule-making authority; continuing the board of
Licensed Dieticians Fund in the State Treasury; establishing
conditions for licensure; defining the scope of practice of
dieticians; authorizing the issuance of temporary permits;
requiring license renewal; requiring display of a license; providing the board may enjoin licensees; authorizing the
board to investigate complaints; providing for due process for
licensees; describing procedures for hearings and rights of
appeal; authorizing criminal proceedings and prescribing
criminal penalties for violations.
Be it enacted by the Legislature of West Virginia:
That §30-35-2a of the Code of West Virginia, 1931, as amended,
be repealed; that §30-35-1, §30-35-2, §30-35-3, §30-35-4, §30-35-5,
§30-35-6, §30-35-7, §30-35-8, §30-35-9, §30-35-10, §30-35-11,
§30-35-12, §30-35-13 and §30-35-14 of said code be amended and
reenacted; and that said code be amended by adding thereto four new
sections, designated §30-35-15, §30-35-16, §30-35-17 and §30-35-18,
all to read as follows:
ARTICLE 35. BOARD OF DIETITIANS.
§30-35-1. Unlawful acts.
_____(a) It is unlawful for any person to practice or offer to
practice dietetics in this state without a license or permit issued
under the provisions of this article, or advertise or use any title
or description tending to convey the impression that the person is
a dietician, unless the person has been licensed or permitted under
the provisions of this article, and the license or permit has not
expired, been suspended or revoked.
_____(b) No business entity, except through a licensee, may render
any service or engage in any activity which if rendered or engaged in by an individual, would constitute the practice regulated under
the provisions of this article.
§30-35-2. General provisions.
_____The practice regulated under the provisions of this article
and the board of Licensed Dieticians are subject to the provisions
of article one of this chapter, the provisions of this article and
any rules promulgated hereunder.
_____As used in this article, the following terms mean the
_____(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) "Dietetics" means the integration and application of the
principles derived from the sciences of nutrition, biochemistry,
food, physiology and management and from the behavioral and social
sciences to achieve and maintain a person's health throughout the
_____(d) "Licensed dietitian" means a person licensed to practice
dietetics under this article;
_____(e) "Licensee" means a person licensed to practice dietetics
under this article;
_____(f) "Medical nutrition therapy" or "nutrition therapy" means
nutritional diagnostic assessment and nutrition therapy services
for the purpose of disease management;
_____(g) "Permittee" means a person permitted to temporarily
practice dietetics under this article;
_____(h) "Practice of nutrition" means:
_____(1) Assessing the nutrition needs of individuals and groups,
and determining resources and constraints in the practice setting;
_____(2) Establishing priorities, goals, and objectives that meet
nutrition needs that are consistent with available resources and
_____(3) Providing nutrition counseling in health and disease;
_____(4) Developing, implementing, managing and evaluating
nutrition care systems; and
_____(5) Developing, evaluating, altering and maintaining
appropriate standards of quality in food and nutrition care
_____(i) "Registered dietitian" means a person registered by the
Commission on Dietetic Registration, the accrediting body of the
American Dietetic Association; and
_____(j) "Temporary permit" means an authorization issued by the
board to a person to temporarily practice dietetics under this
§30-35-4. Board of Licensed Dietitians.
_____(a) The Board of Licensed Dieticians is continued. The
members of the board in office on July 1, 2013, shall, unless
sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and
(b) The board shall consist of the following five members who
are appointed by the Governor for terms of five years with the
advice and consent of the Senate:
_____(1) Four members, who are a registered or licensed dietitian;
_____(2) One citizen member.
_____(c) Each licensed member of the board, at the time of his or
her appointment, must have held a license in this state for at
least three years.
_____(d) Each member of the board must be a resident of this state
during the appointment term.
_____(e) A member may not serve more than two consecutive full
terms. A member having served two consecutive full terms may not
be appointed for one year after completion of his or her second
full term. A member may continue to serve until a successor has
been appointed and has qualified.
_____(f) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office
shall be vacant and the appointment shall be made within sixty days of the vacancy.
_____(g) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
_____(h) Any member of the board immediately and automatically
forfeits his or her membership if his or her license to practice is
suspended or revoked by the board, if he or she is convicted of a
felony under the laws of any jurisdiction, or if he or she becomes
a nonresident of this state.
_____(i) The board shall elect annually one of its members as
chairperson who serves at the will of the board.
_____(j) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
_____(k) A simple majority of the membership serving on the board
at a given time is a quorum for the transaction of business.
_____(l) The board shall hold at least two meetings annually.
Other meetings may be held at the call of the chairperson or upon
the written request of two members, at the time and place as
designated in the call or request.
_____(m) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-35-5. Powers and duties of the board.
_____(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in
_____(b) The board shall:
_____(1) Hold meetings;
_____(2) Establish requirements for licenses and permits;
_____(3) Establish procedures for submitting, approving and
rejecting applications for licenses and permits;
_____(4) Determine the qualifications of an applicant for licenses
_____(5) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examinations and the pass and fail rate;
_____(6) Hire, discharge, establish the job requirements and fix
the compensation of the executive director;
_____(7) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators
and contracted employees necessary to enforce the provisions of
_____(8) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the
_____(9) Conduct disciplinary hearings of persons regulated by the
_____(10) Determine disciplinary action and issue orders;
_____(11) Institute appropriate legal action for the enforcement of
the provisions of this article;
_____(12) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
_____(13) Keep accurate and complete records of its proceedings,
and certify the same as may be necessary and appropriate;
_____(14) Establish the continuing education requirements for
_____(15) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses and permits;
_____(16) Establish a fee schedule;
_____(17) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
to implement the provisions of this article; and
_____(18) Take all other actions necessary and proper to effectuate
the purposes of this article.
_____(c) The board may:
_____(1) Contract with third parties to administer the examinations
required under the provisions of this article;
_____(2) Sue and be sued in its official name as an agency of this
_____(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
_____(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
_____(1) Additional standards and requirements for licenses and
_____(2) Requirements for third parties to prepare and/or
administer examinations and reexaminations;
_____(3) Educational and experience requirements;
_____(4) Standards for approval of courses and curriculum;
_____(5) Procedures for the issuance and renewal of licenses and
_____(6) A fee schedule;
_____(7) Continuing education requirements for licensees;
_____(8) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of licensees and permitees;
_____(9) Requirements for inactive or revoked licenses and permits;
_____(10) Any other rules necessary to effectuate the provisions of
All of the board's rules in effect and not in conflict
with these provisions, shall remain in effect until they are
amended or rescinded
§30-35-7. Fees; special revenue account; administrative fines.
_____(a) All fees in effect, shall remain in effect until they are
amended or repealed by legislative rule or statute.
_____(b) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate Special
Revenue Fund in the State Treasury designated the "Board of
Licensed Dietitians Fund", which is continued. The fund is used by
the board for the administration of this article. Except as may be
provided in article one of this chapter, the board retains the
amount in the Special Revenue Account from year to year. No
compensation or expense incurred under this article is a charge
against the General Revenue Fund.
_____(c) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
§30-35-8. License to practice as a dietitian.
_____To be eligible for a license to practice as an dietitian, the
_____(a) Submit an application to the board;
_____(b) Be at least eighteen years of age;
_____(c) Be of good moral character;
_____(d) Have completed a major course of study in human nutrition,
dietetics, food systems management or the equivalent thereof, as
determined by the board;
_____(e) Have a baccalaureate or post-baccalaureate degree;
_____(f) Have 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
_____(g) Have completed a written and/or oral examination. Each
demonstrating competence in the discipline of dietetics and
_____(h) Not have been convicted of a felony in any jurisdiction
within five years preceding the date of application for license
which conviction remains unreversed;
_____(i) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of dietetics, which conviction remains
_____(j) Meet any other requirements established by the board.
§30-35-9. Scope of practice.
_____A licensed dietitians may:
_____(a) Perform medical nutrition therapy;
_____(b) Perform a nutritional assessment to determine nutritional
needs and to recommend appropriate nutritional intake, including
enteral and parenteral nutrition;
_____(c) Perform nutritional counseling or education as components
of preventive, curative and restorative health care;
_____(d) Develop, administer, evaluate and consult regarding nutritional care standards.
§30-35-10. Temporary permit.
_____(a) The board may issue a temporary permit to practice
dietetics to a person who has not met the experience requirements
set forth in section eight of this chapter upon the filing of an
application, payment of a fee, and submission of evidence of
successful completion of the education requirements of this
_____(b) A temporary permit expires one year from the date of
_____(c) Renewals may be issued three times upon request by the
applicant and submission of a satisfactory explanation for the
applicant's failure to become licensed.
§30-35-11. Exemptions from this article.
_____The following exemptions apply to this article:
_____(a) A dietitian registered by the Commission on Dietetic
Registration may use the title of registered dietitian;
_____(b) Nothing in this article affects a person employed as a
cook at any public or private educational institution in this
_____(c) Nothing in this article affects a person who furnishes
nutrition information on food, food materials or dietary
supplements or who engages in explanation to customers about food,
food materials or dietary supplements in connection with the marketing and distribution of those products;
_____(d) Nothing in this article prohibits or otherwise limits the
practice of a profession by a person who is licensed, certified or
registered under the laws of this state and who is performing
services within their authorized scope of practice; and
_____(e) A person using the title 'nutritionist', who practices
§30-35-12. Renewal of license.
_____(a) A person regulated by this article shall annually or
biannually, renew his or her authorization by completing a form
prescribed by the board and submitting any other information
required by the board.
_____(b) The board shall charge a fee for each renewal of an
authorization and shall charge a late fee for any renewal not paid
by the due date.
_____(c) The board shall require as a condition of renewal that
each licensee complete continuing education.
_____(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application.
§30-35-13. Display of license.
_____(a) The board shall prescribe the form for a license and
permit, and may issue a duplicate license or permit upon payment of
_____(b) Any person regulated by the article shall conspicuously display his or her license or permit at his or her principal
§30-35-14. Actions to enjoin violations.
_____(a) If the board obtains information that any person has
engaged in, is engaging in or is about to engage in any act which
constitutes or will constitute a violation of the provisions of
this article, the rules promulgated pursuant to this article, or a
final order or decision of the board, it may issue a notice to the
person to cease and desist in engaging in the act and/or apply to
the circuit court in the county of the alleged violation for an
order enjoining the act.
_____(b) The circuit courts of this state may issue a temporary
injunction pending a decision on the merits, and may issue a
permanent injunction based on its findings in the case.
_____(c) The judgment of the circuit court on an application
permitted by the provisions of this section is final unless
reversed, vacated or modified on appeal to the West Virginia
Supreme Court of Appeals.
§30-35-15. Complaints; investigations; due process procedure;
__grounds for disciplinary action.
_____(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person,
cause an investigation to be made to determine whether grounds
exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.
_____(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee or permittee.
_____(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
_____(d) Upon a finding that probable cause exists that the
licensee or permittee has violated subsection (g) of this section
or rules promulgated pursuant to this article, the board may enter
into a consent decree or hold a hearing for the suspension or
revocation of the license or permit or the imposition of sanctions
against the licensee or permittee. Any hearing shall be held in
accordance with the provisions of this article.
_____(e) Any member of the board or the administrator of the board
may issue subpoenas and subpoenas duces tecum to obtain testimony
and documents to aid in the investigation of allegations against
any person regulated by the article.
_____(f) Any member of the board or its administrator may sign a
consent decree or other legal document on behalf of the board.
_____(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend, restrict or revoke the license or
permit of, or impose probationary conditions upon or take
disciplinary action against, any licensee or permittee for any of the following reasons once a violation has been proven by a
preponderance of the evidence:
_____(1) Obtaining a license or permit by fraud, misrepresentation
or concealment of material facts;
_____(2) Being convicted of a felony or other crime involving moral
_____(3) Being guilty of unprofessional conduct which placed the
public at risk, as defined by legislative rule of the board;
_____(4) Intentional violation of a lawful order or legislative
rule of the board;
_____(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization revoked or suspended by the proper
authorities of another jurisdiction;
_____(6) Aiding or abetting unlicensed practice; or
_____(7) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare
or safety of the public.
_____(h) For the purposes of subsection (g) of this section,
effective July 1, 2013, disciplinary action may include:
_____(4) Administrative fine, not to exceed $1,000 per day per violation;
_____(5) Mandatory attendance at continuing education seminars or
_____(6) Practicing under supervision or other restriction; or
_____(7) Requiring the licensee or permittee to report to the board
for periodic interviews for a specified period of time.
_____(i) In addition to any other sanction imposed, the board may
require a licensee or permittee to pay the costs of the proceeding.
§30-35-16. Procedures for hearing; right of appeal.
_____(a) Hearings are governed by the provisions of section eight,
article one of this chapter.
_____(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
_____(c) If the hearing is conducted by an administrative law
judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
_____(d) Any member or the administrator of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
_____(e) If, after a hearing, the board determines the licensee or
permittee has violated provisions of this article or the board's rules, a formal written decision shall be prepared which contains
findings of fact, conclusions of law and a specific description of
the disciplinary actions imposed.
§30-35-17. Judicial review.
_____Any licensee or permittee adversely affected by a decision of
the board entered after a hearing may obtain judicial review of the
decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting
from judicial review in accordance with article six, chapter
twenty-nine-a of this code.
§30-35-18. Criminal proceedings; penalties.
_____(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee or
permittee has committed a criminal offense under this article, the
board may bring its information to the attention of an appropriate
_____(b) A person violating section one of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $100 nor more than $1,000 or confined in jail not more
than six months, or both fined and confined.
NOTE: The purpose of this bill is to provide that it is
unlawful to practice dietetics without a license, provide for board
member qualifications and describe the powers and duties of the
board; define board rule-making authority; establishing conditions
for licensure and issuance of temporary permits; requiring license renewal; requiring display of a license; providing the board may
enjoin licensees; authorizing the board to investigate complaints;
providing for due process for licensees; describing procedures for
hearings and rights of appeal; authorizing criminal proceedings;
and prescribing misdemeanor penalties for violations.
§30-35-1 through §30-35-14 has been completely rewritten;
therefore, it has been completely underscored.
§30-35-15 through §30-35-18 is new; therefore, it has been