REGULATORY BOARD EVALUATION OF THE
Board of Licensed Dietitians
Continued Regulation of the Board
of Licensed Dietitians Is Not
Necessary For the Public's Interest
Board's Compliance With Applicable
Laws and Rules Can Be Improved
The Board of Licensed Dietitians was created under Chapter 30 of the West Virginia Code in 1996. There are five board members, all but one of which are required to have at least three years of experience as a registered or licensed dietitian. All are appointed by the Governor for overlapping terms of four years. Members are not permitted to serve more than four years. Three members are presently serving on lapsed terms.
As of October 3, 2000 there were 304 licensed dietitians and 11 provisional
licensees in West Virginia. Provisional licenses are granted to individuals
who have met the educational requirement but are lacking the experience
requirement. A provisional license can be renewed annually for up to three
years. License and renewal fees are $50 annually. The Board was created
to be self-sufficient, relying on the application and renewal fees of licensees.
Board Revenues, Expenditures and Cash Balances
|FY 2000||FY 1999||FY 1998|
|End of Year Cash Balances||17,928||20,133||8,782|
|Source: 2000 PERD Analysis of FIMS Documents|
Issue Area 1: Continued Regulation of the Board of Licensed Dietitians Is Not Necessary For the Public's Interest.
During the 2000 Legislative Session the Legislature enacted a new kind of performance review under the Sunset Law. This type of review is called a Regulatory Board Evaluation. All Chapter 30 Boards are now scheduled to be reviewed over a 12-year period. As required, the Legislative Auditor must determine whether or not the board is necessary for the protection of public health and safety. The finding of this review indicates that the continuation of the Board of Licensed Dietitians is not necessary to protect the public. The basis for this finding is as follows:
The findings of this report are the same as the findings of a previous report issued by the Legislative Auditor in October 1999. Despite the recommendation of the 1999 report, the Legislature continued the Board for one year. Also, during the 2000 Legislative Session, House Bill 4477 would have defined a scope of practice of licensed dietitians that restricted persons who could practice "medical nutrition therapy" or "nutrition therapy". Either of these terms would have been defined as:
Nutritional diagnostic assessment and nutrition therapy services for the purpose of disease management.
House Bill 4477 passed both legislative houses but it was vetoed by the Governor. It is somewhat unclear to what extent this legislation would have restricted the practice of dietetics because the number of persons providing this service is not readily available. The American Dietetic Association (ADA) estimates that about 67% of dietitians are employed by hospitals or other health care providers and 19.1% by public health programs or in educational facilities. These would be the most likely providers to advise on disease management. However, not all persons employed as dietitians by hospitals, health care providers, public health programs and educational facilities would be providing services for the purpose of disease management.
Low Risk of Harm from the Profession of Dietetics
In 1999, the Legislative Auditor's Office contacted the ADA. The ADA's Washington, D.C. based Government Affairs Division was asked for the most serious complaints it had received from across the nation against Registered Dietitians (R.D.). The ADA provided documentation addressing the need for licensure. While incidents are discussed in which persons were harmed as a result of receiving poor advice, they do not represent issues which could have reasonably been prevented by the West Virginia Board. For example, football coaches and relatives are likely to dispense advice whether or not doing so is subject to Board regulation. An abundance of the examples provided represent situations in which "nutritionists" or persons selling vitamins and supplements may have caused or contributed to a person's being harmed. Even had H.B. 4477 been signed into law these matters would not have been subject to the Board's control. Other examples of "quackery" can be made in which persons may be violating other laws and the scopes of practice of other licensed professions, defrauding consumers and other activities which would be illegal regardless of the Board's existence. These factors combine to indicate that public protection is not provided by licensing this profession.
ADA's Credential is Generally Recognized as a Standard of Competence
Both Marshall University and West Virginia University have programs that lead to baccalaureates in dietetics. These programs emphasize that the graduate would qualify to take ADA's examination to become a Registered Dietitian (R.D.).(1) The universities web sites discuss what professions an individual with an R.D. can perform. Additionally, the State's Division of Personnel has classifications for nutritionists. These classifications either require the R.D. credential or indicate preference may be given to a person holding that credential.
The Board's Regulation Can be Evaded by use of Other Titles
Titles that could imply state endorsement, such as "nutritionist", are not regulated. A person could choose to call themselves a "nutritionist", and not be licensed by the Board. According to the 1998-99 Occupational Outlook Handbook, the general educational requirements for both nutritionists and dietitians are the same and they perform essentially the same work.
According to the 1998-99 Occupational Outlook Handbook,
Dietitians and nutritionists plan nutrition programs and supervise the preparation and serving of meals. They help prevent and treat illnesses by promoting healthy eating habits, scientifically evaluating clients' diets, and suggesting diet modifications, such as less for those with high blood pressure or reduced fat and sugar intake for those who are overweight.
According to a legal opinion from Legislative Services, the provision "That a dietitian registered by the commission on dietetic registration may use the title of registered dietitian..." allows one working under the title Registered Dietitian to do so without being licensed by the state board. No registered dietitian would have to be licensed in order to practice in the State. Despite this the majority, 87%, of current licensees are R.D.'s.
R.D.'s are not required to be licensed, or a situation like the following could occur. An individual holds both an LD and an R.D. title. The individual is disciplined by the Board and loses his or her LD status. However, the individual would retain the R.D. status and continue to practice. Thus, the Board cannot stop someone from continuing to offer services to the West Virginia public that it deemed abusive or harmful when the license was taken.
Individuals can choose whether to be regulated or not by the choice of title under which they practice. One's work tasks may be the same as another regulated by the Board, but since the title used is not "dietitian" or "licensed dietitian" the Board does not require licensure. While further exclusions exist for registered dietitians, those practicing in weight loss clinics, health food stores and educational institutions, would not have to be licensed provided that person does not practice under the titles "dietitian" or "licensed dietitian". According the American Dietetic Association, 42 states and the District of Columbia regulate "dietitians" in some manner. Twenty-seven states and D.C. license, 14 states certify and one state requires registration.
This review reiterates the findings of the 1999 review. There is nothing to substantiate that continuance of the Board is in the public's interests.
The Legislature should consider terminating the West Virginia Board of Licensed Dietitians pursuant to the Sunset Law.
Issue Area 2: Board's Compliance With Applicable Laws and Rules Can Be Improved.
The Legislative Auditor finds that the Board of Licensed Dietitians' compliance with the General Provisions of Chapter 30, which are essential for the effective operation of a licensing board, can be improved. The Board has complied with the following requirements:
The 1999 review found that the Board was inaccessible to the public. The Board lacked a telephone listing, a permanent address and an Internet site. During the course of the review, the Board worked to improve its compliance with §30-1-12 which requires the telephone number and address to be published in the Government section of the Charleston area telephone book. A telephone number is now listed but an address is not. The Board has a different telephone number listed on the State's website but does not have a site of its own. Yet a third telephone number is listed in the Capitol Telephone directory which does have an address listed.
Open Governmental Proceedings
The last review found that only 48% of the Board's meetings between the Board's creation in 1996 and April 1999 had open meeting notices filed with the Secretary of State. From the September 1997 meeting forward, the Board maintained a higher percentage of compliance with the statutory requirement. This review found that the Board has met 15 times since May 1999 but has filed notices timely on only 10 of those occasions, increasing its compliance with statute to 67%.
In August 1999, the Board reversed its standing policy of requiring fees be paid by a money order or cashier check. Not issuing a license until payment clears insures payment. Further, statute allows the Board to impose fines to compensate for any returned checks. A recommendation was made that the Board seek to amend its rule to include a returned check policy. The Board did not seek to incorporate this recommendation into its rules.
In the general provisions applicable to all boards, §30-1-7c, boards are to establish continuing education requirements that include course content, course approval, hours required and reporting periods. The October 1999 review found that the Board was not meeting its obligation to establish course content or approve courses.
Continuing education hours were being approved by the American Dietetic Association and the standards set by the same association. A recommendation was made that the Board immediately begin complying with the statutory requirement by maintaining its own continuing education requirements, preferably in legislative rule. The recommendation was also made that the rule be amended to ensure continuing education be approved by the Board, not the Association. Amended rules were filed with the Secretary of State's Office on August 29, 2000. These rules would establish that course approval is granted by the Board if the course is given by a Board approved provider and course content must meet elements defined in the proposed rules.
As of October 2000 the Board has not received a complaint against a licensee. The Board has received complaints alleging unlicenced practice as well as one incident where an individual had "lifted" someone else's national association number. Further, at least one of these complaints was against a Registered Dietitian. Registered Dietitians do not have to be licensed to practice in West Virginia but the Board is informing both licensees and the persons involved in this incident that a R.D. does have to be licensed in West Virginia to practice. The Board is taking action against this person.
Roster and Register of Licensees
The Board's roster of licensees does not meet all statutory requirements. In neither 1998 nor 1999 did the roster meet the statutory requirements. With some adjustments it could comply with statute.
The Board does not maintain a register of applicants. The following provisions are found in the general provisions of Chapter 30:
The secretary of every board shall keep a record of its proceedings and a register of all applicants for license or registration, showing for each the date of his or her application, his or her name, age, educational and other qualifications, place of residence, whether an examination was required, whether the applicant was rejected or a certificate of license or registration granted, the date of this action, the license or registration number, all renewals of the license or registration, if required, and any suspension or revocation thereof.
By January 1 of every year Boards are required by §30-1-12(b) to,
...submit to the governor and to the Legislature a report of its transactions for the preceding two years, an itemized statement of its receipts and disbursements for that period, a full list of the names of all persons licensed or registered by it during that period, statistical reports by county of practice, by speciality if appropriate to the particular profession, and a list of any complaints which were filed against persons licensed by the board, including any action taken by the board regarding those complaints.
The Governor's Office does not a have record of an annual report being submitted in 2000. The House and Senate Clerk Offices did receive a copy of the report, but not until March 2000. The annual reports the Board provided the Legislative Auditor do not precisely fulfill the statutory requirements mentioned above. The reports for January 1997 through March 1998, January 1998 through January 1999, and January 1999 through December 1999 do not have statistical reports by county of practice, do not have an itemized statement of receipts and disbursements and in the case of the reports ending January 1999 and December 1999 are not for the preceding two years. In the first two annual reports, the Board meets the requirement to have a list of names of persons licensed during that period but the most recent report has all persons licensed rather than during the period the report covers.
Annual Election of Officers
Board minutes indicate the Board has annually elected officers in all years except 1999. The Board should strive to hold elections annually in compliance with Chapter 30, Article 1.
Should the Legislature choose not to terminate the Board, the following recommendations apply:
The Board should fully comply with §30-1-12 by having its address listed in the Governmental section of the Charleston area telephone book.
The Board should comply with the Open Governmental Proceedings Act on all occasions.
The Board should begin keeping the register of applicants as required by §30-1-12 and adjusting its current roster to comply with §30-1-13.
The Board should fully comply with §30-1-12 by filing the annual report appropriately and include at a minimum what is specifically required.
As required by §30-1-3 the Board shall annually elect from among its members a president and secretary.
1. ADA's examination is offered through its credentialing arm, the Commission on Dietetic Registration.