South Carolina General Assembly
113th Session, 1999-2000

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Bill 304


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      304
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  19990112
Primary Sponsor:                  Hayes
All Sponsors:                     Hayes, Giese
Drafted Document Number:          l:\council\bills\psd\7082ac99.doc
Companion Bill Number:            3237
Residing Body:                    House
Current Committee:                Labor, Commerce and Industry Committee 26 
                                  HLCI
Date of Last Amendment:           19990428
Subject:                          Dietetics, licensure and regulation of; 
                                  Dieticians and Nutritionists


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
House   20000517  Committed to Committee                 26 HLCI
House   20000517  Request for debate withdrawn
                  by Representative                              Davenport
                                                                 Trotter
House   20000516  Request for debate withdrawn
                  by Representative                              Robinson
House   20000503  Debate adjourned until
                  Thursday, 20000504
House   20000502  Request for debate withdrawn
                  by Representative                              Witherspoon
House   20000418  Objection by Representative                    Cooper
House   20000418  Request for debate by Representative           Klauber
                                                                 McGee
                                                                 Trotter
                                                                 Witherspoon
                                                                 Barfield
                                                                 Kirsh
                                                                 Chellis
                                                                 Perry
                                                                 Robinson
                                                                 Davenport
                                                                 Phillips
                                                                 Quinn
                                                                 Edge
------  20000417  Scrivener's error corrected
House   20000412  Committee report: Favorable with       27 H3M
                  amendment
House   19990504  Introduced, read first time,           27 H3M
                  referred to Committee
Senate  19990429  Read third time, sent to House
Senate  19990428  Amended
Senate  19990427  Read second time, carrying over
                  all amendments to third reading
Senate  19990427  Recalled from Committee                13 SMA
Senate  19990112  Introduced, read first time,           13 SMA
                  referred to Committee
Senate  19981216  Prefiled, referred to Committee        13 SMA


              Versions of This Bill
Revised on April 27, 1999 - Word format
Revised on April 28, 1999 - Word format
Revised on April 12, 2000 - Word format
Revised on April 17, 2000 - Word format

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

COMMITTEE REPORT

April 12, 2000

S. 304

Introduced by Senators Hayes and Giese

S. Printed 4/12/00--H. [SEC 4/17/00 9:22 AM]

Read the first time May 4, 1999.

            

THE COMMITTEE ON MEDICAL,

MILITARY, PUBLIC AND MUNICIPAL AFFAIRS

To whom was referred a Bill (S. 304), to amend Chapter 47, Title 40, Code of Laws of South Carolina, 1976, relating to physicians, surgeons, and osteopaths, and the State Board of Medical Examiners, etc., respectfully

REPORT:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. Chapter 47, Title 40 of the 1976 Code is amended by adding:

"Section 40-47-805. This article may be cited as the 'South Carolina Dietetics Practice Act.'

Section 40-47-810. The General Assembly recognizes that the practice of dietetics (Medical Nutrition Therapy) in South Carolina affects the public health, safety and welfare and should be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of dietetics and from unprofessional conduct by persons licensed to practice dietetics. However, restrictions must be imposed to the extent necessary to protect the public from significant and discernible danger to health and yet not in such a manner which will unreasonably affect the competitive market.

Section 40-47-815. As used in this chapter:

(1) 'Advisory panel' means the Advisory Panel for Dietetics under the department.

(2) 'Approved dietetic school' means a facility which meets minimum standards for training and curriculum as determined by regulations of the department.

(3) 'Department' means the South Carolina Department of Labor, Licensing and Regulation.

(4) 'Director' means the director of the department or their designee.

(5) 'Disciplinary panel' means the Disciplinary Panel for Dietetics under the department.

(6) 'Dietetics' or 'nutrition' means the integration and application of principals derived from the science of nutrition, biochemistry, physiology, food and management and from behavioral and social sciences to achieve and maintain a healthy status. The primary function of dietetic practice is the provision of nutrition care services.

(7) 'Licensure' means the procedure by which a person applies to the department and is granted approval to practice dietetics.

(8) 'Licensed dietitian' means an individual licensed in good standing to practice dietetics or nutrition pursuant to the provisions of this article. For purposes of this article, 'dietitian' is synonymous with 'nutritionist'.

(9) 'Nutrition care services' or 'medical nutrition therapy' means any part of all of the following: assessing the nutritional needs of individuals and groups and determining resources and constraints in the practice setting; establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and financial constraints; providing nutritional counseling in health and disease prevention; developing, implementing, and managing nutrition care systems; evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services; and transcribing a verbal order into patient records for cosignature by the ordering physician and implementing of the physician's written and verbal orders which pertain to the practice of dietetics, if this practice is specifically authorized by the medical director and the health care facility. In the delivery of dietetic home care this practice must be authorized specifically by the physician sponsor.

'Nutrition care services' does not include the retail sale of food products or vitamins and minerals.

Section 40-47-820. Individuals holding themselves out to be dietitians and nutritionists employed to provide dietetic and medical nutrition therapy for inpatients, outpatients, and home patients must be licensed in accordance with this article.

Section 40-47-825. This article does not apply to:

(1) a health care professional who is licensed by the State and is working within his or her scope of practice, or who by passage of an examination certified by the National Council of Health certifying agencies has proven to be competent in one or more of the functions included in the definition of dietetics or medical nutrition therapy, as long as the person does not represent himself of herself as a dietitian or nutritionist;

(2) a dietician serving in the armed forces of the public health service of the United States or employed by the Department of Veterans Affairs when performing duties associated with that service or employment;

(3) a student or trainee working under the direct supervision of a licensed dietitian while fulfilling an experience requirement or pursuing a course of study to meet requirements for licensure, for a limited period of time as determined by the department;

(4) a person aiding the practice of dietetics, if the person works under the direct supervision of a licensed dietician and performs only support activities that do not require formal academic training in the basic food, nutrition, chemical, biological, behavioral and social sciences that are used in the practice of dietetics;

(5) an employee of or a person who contracts with the State, a political subdivision of the State, or a local school administrative unit while engaged in the practice of dietetics within the scope of that employment;

(6) a retailer who does not hold himself out to be a dietician when that retailer furnishes nutrition information to customers on food, food materials, dietary supplements, and other goods sold at his retail establishment, in connection with the marketing and distribution of those goods;

(7) a person who provides weight control services, provided a dietitian registered by the Commission on Dietetic Registration of the American Dietetic Association or a dietician licensed in another state that has licensure requirements that are equivalent to the requirements in this State:

(a) has reviewed the service;

(b) is available for consultation; and

(c) approves a change in the service prior to its initiation.

(8) an employee or independent contractor of a hospital or health care facility licensed by this State;

(9) an herbalist, or other person who does not hold himself or herself out to be a dietitian, when that person furnishes nutritional information on food, food materials, or dietary supplements or when that person furnishes nonfraudulent, specific nutritional information and counseling about reported or historical use of herbs, vitamins, minerals, amino acids, carbohydrates, sugars, enzymes, food concentrates or other foods.

Section 40-47-830. Nothing in this article may be construed to require direct third-party reimbursement to persons licensed under this article.

Section 40-47-835. (A) There shall be created under the department's Division of Professional and Occupational Licensing, and advisory panel and a disciplinary panel for dietetics. Members shall be appointed by the Governor. Nominations for appointments to the advisory or disciplinary panel may be submitted to the Governor from any individual, group or association. A vacancy on either panel must be filled in the manner of the original appointment for the remainder of the unexpired term. No member may serve more than two full terms. The Governor may remove a member of either panel in accordance with Section 1-3-240.

(B) Members of the advisory and disciplinary panels must be compensated for their services as provided for in Section 40-1-50(A). Panel members must be dieticians registered by the American Dietetic Association and must have been engaged in the practice of dietetics for not fewer than three consecutive years before appointment and must practice in this State except that panel members who are appointed from the general public may not be associated in any way with the practice of dietetics, nutrition care services, or medical nutrition therapy.

(C) Each panel will annually elect a chairman to preside and represent the panel as may be necessary. Each panel shall meet upon the call of the director. A majority of the members of each panel constitutes a quorum; however, if there is a vacancy, a majority of the members serving constitutes a quorum. Panel members are required to attend meetings or to provide proper notice and justification of inability to do so. Unexcused absences from meetings may result in removal as provided for in Section 1-3-240.

Section 40-47-840. (A) The Dietetics Advisory Panel will consist of six members, one of whom must be:

(1) a professional whose primary practice is clinical dietetics;

(2) a professional whose primary practice is community or public health dietetics;

(3) a professional whose primary practice is consulting;

(4) a professional whose primary practice is in management of nutritional services; and

(5) two members appointed from the general public.

(B) Members serve a term of four years and until the successors are appointed.

(C) The duties of the advisory panel are to advise the department in the development of regulations, statutory revisions, and such other matters as the department may request in regard to the administration of this chapter.

(D) Final decisions in all matters rest with the director.

Section 40-47-845. (A) The Disciplinary Panel will consist of three members, one of whom must be:

(1) an educator on the faculty of a college or university, specializing in the field of dietetics;

(2) a dietitian who serves coterminously with the Governor;

(3) a member of the general public.

(B) Members serve a term of four years and until their successors are appointed.

(C) The disciplinary panel is responsible for advising the department concerning matters relating to violations of this chapter. The panel will conduct hearings and, on the basis of the findings thereof, recommend disciplinary action to the director for final decision and order.

Section 40-47-850. (A) The director may employ and establish compensation for personnel the director considers necessary and appropriate for the administration of this chapter.

(B) Duties must be prescribed by the director and may include, but are not limited to:

(1) maintaining and preserving records;

(2) receiving and accounting for all monies received by the department;

(3) issuing necessary notices to licenses;

(4) determining the eligibility of applicants for examination and licensure;

(5) licensing and renewing the licenses of qualified applicants;

(6) promulgating regulations to carry out this chapter including, but not limited to, establishing a code of ethics to govern the conduct and practices of persons licensed under this chapter; and

(7) where appropriate, preparing, administering, and grading the examination or contracting for the preparation, administration or grading of the examination.

Section 40-47-855. The department shall prepare and submit an annual report on the administration of this chapter in accordance with Section 40-1-50.

Section 40-47-860. The department shall keep a record and a registry in accordance with Section 40-1-50.

Section 40-47-865. The department shall prepare and publish a roster in accordance with Section 40-1-50.

Section 40-47-870. The department shall charge and collect the following fees:

(1) dietetics application and initial licensing fee of one hundred fifty dollars;

(2) biennial dietetics licensure renewal fee of one hundred and twenty dollars;

(3) initial inactive license status fee of one hundred dollars;

(4) biennial renewal fee for inactive status of one hundred dollars;

(5) reinstatement fee of fifty dollars for renewals received after September 30 but before November 1; and

(6) replacement fee of ten dollars for replacing a license.

Fees may be adjusted by the director to ensure that they are sufficient, but not excessive to cover the costs to the state for the operation of the dietetics program. All fees are nonrefundable.

Section 40-47-875. The department has jurisdiction over the actions committed or omitted by current and former licensees during the entire period of licensure. The department has jurisdiction to act on any matter which arises during the practice authorization period.

Section 40-47-880. No person may practice dietetics without a license issued in accordance with this chapter. A person licensed by the State under this title or any other provision of law whose scope of practice overlaps with the practice of dietetics is not also required to be licensed under this chapter unless the person holds himself out to be a practitioner of dietetics.

Section 40-47-885. To be licensed by the department as a dietitian a person must:

(1) have successfully completed the requirements for current registration as a registered dietitian by the Commission on Dietetic Registration; or

(2) where appropriate, has passed an examination as prescribed by the department and has received a post-baccalaureate degree from a regionally accredited college or university or a master's degree in human nutrition, nutrition education, foods and nutrition, public health nutrition, or an equivalent major course of study as approved by the department.

Section 40-47-890. An applicant for licensure who has obtained his or her education outside of the United States and its territories must meet the requirements for current registration as registered dietitian by the Commission on Dietetic Registration.

Section 40-47-895. An applicant for licensure must be made in writing under oath on a form prescribed by the department and accompanied by all applicable fees.

Section 40-47-900. (A) If an applicant satisfied the licensure requirements and pays the applicable fees as provided for in this chapter, the department shall issue a license to the applicant. A license is a personal right and not transferable and the issuance of a license is evidence that the licensee is entitled to all rights and privileges of a dietitian while the license remains current and unrestricted.

(B) A person licensed under this chapter shall display the license in a prominent and conspicuous place in the person's place of business and shall include the number of the license in an advertisement of dietetics services appearing in a newspaper, airwave transmission, telephone directory or other advertising medium.

(C) Only a person licensed under this chapter may use the title of dietitian or nutritionist.

Section 40-47-905. The department shall issue a license to a person who holds an active, current, and unrestricted license in another state if the standards for licensure in that state are at least the substantial equivalent to the licensing standards provided for this chapter, and the person satisfies any other requirements the department may prescribe in regulation.

Section 40-47-910. (A) A dietetics license must be renewed biennially and expire on September 30 of the second year. Application for renewal must be accompanied by the fee as provided for in Section 40-47-870. A license which has not been renewed by September 30 is invalid and only may be reinstated upon receipt of a renewal application postmarked before November 1 and accompanied by the biennial license fee and reinstatement fee.

(B) A person requesting inactive licensure must hold an active, current, and unrestricted license issued by the department at the time inactive licensure is requested and agree not to practice dietetics while holding an inactive license. An inactive license may be renewed for up to four years.

Section 40-47-915. The department may deny a license to practice to any applicant who has committed any act that would be grounds for disciplinary action pursuant to this act, or who has been the subject of disciplinary action by another state or jurisdiction, who has failed to comply with a final order of another professional licensure board, or who has failed to demonstrate the basic qualifications or standards for practice authorization contained in the respective licensing act. It shall be incumbent upon the applicant to demonstrate to the satisfaction of the department that he or she meets all of the requirements for the issuance of a license.

Section 40-47-920. The department will suspend the license of any person who submits a check, money draft or similar instrument for payment of a fee which is not honored by the financial institution named. The suspension shall become effective ten days following delivery by certified mail of written notice of the dishonor and the impending suspension to such person's address. Upon notification of suspension, the person may reinstate the authorization upon payment of the fee and penalties required under statute or regulation. Such suspension shall be exempt from the Administrative Procedures Act.

Section 40-47-925. The department will revoke the license of any person found to be in violation of the Family Independence Act as it relates to child support enforcement requirements.

Section 40-47-930. Investigations by the department shall be conducted in accordance with Section 40-1-80.

Section 40-47-935. For the purpose of a proceeding under this chapter, the director or disciplinary panel may administer oaths and upon its own motion or upon request of any party, shall subpoena witnesses, compel witness's attendance, take evidence, and require the production of any matter which is relevant to the investigation including, but not limited to, the existence, description, nature, custody, condition, and location of any books, documents or other tangible items and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. Upon failure to obey a subpoena or to answer questions propounded by the disciplinary panel, the director may apply pursuant to the Administrative Procedures Act to an administrative law judge for an order requiring the person to appear before the disciplinary panel and to produce documentary evidence and give other evidence concerning the matter under inquiry.

Section 40-47-940. (A) When the department has reason to believe that a person is violating or intends to violate a provision of this chapter or a regulation promulgated under this chapter, in addition to all other remedies, it may order the person to immediately cease and desist from engaging in the conduct. If the person is practicing dietetics without being licensed under this chapter the department also may apply to an administrative law judge for a temporary restraining order prohibiting the unlawful practice. The administrative law judge may issue a temporary restraining order ex parte and the department is not required to:

(1) post a bond;

(2) establish the absence of an adequate remedy at law; or

(3) establish that irreparable damage would result from the continued violation.

The director nor any other employee of the department may be held liable for damages resulting from a wrongful temporary restraining order.

(B) In accordance with the South Carolina Rules of Civil Procedure, the director also may seek from an administrative law judge other equitable relief to enjoin the violation or intended violation of this chapter or a regulation promulgated under this chapter.

Section 40-47-945. The director may take disciplinary action against a person who:

(1) used a false, fraudulent or forged statement of document or committed a fraudulent, deceitful, or dishonest act in applying for licensure under this chapter;

(2) has had his license to practice dietetics from another state or jurisdiction canceled, revoked, suspended or otherwise restricted;

(3) has violated a provision of this chapter, a regulation promulgated under this chapter, or an order of the department or the disciplinary panel;

(4) has intentionally or knowingly, directly or indirectly, aided or abetted in the violation or conspiracy to violate this chapter or a regulation promulgated under this chapter;

(5) has intentionally used a fraudulent statement in a document connected to the practice of dietetics or has made false, deceptive or misleading statements in the practice of dietetics or in advertising;

(6) has obtained fees or assisted in obtaining fees under intentionally fraudulent circumstances;

(7) has committed dishonorable, unethical or unprofessional conduct that is likely to deceive, defraud or harm the public;

(8) lacks the professional or ethical competence to practice dietetics;

(9) has been convicted of or has pled guilty to or nolo contendere to a felony or a crime which directly relates to the practice or ability to practice dietetics;

(10) has practiced dietetics while under the influence of alcohol or drugs or uses alcohol or drugs to such a degree as to render him unfit to practice dietetics; or

(11) has sustained a physical or mental disability, as determined by a physician, which renders further practice by the licensee dangerous to the public.

Section 40-47-950. When investigating grounds for taking disciplinary action based upon an alcohol or drug addiction, as provided for in Section 40-47-945 or a physical or mental disability, as provided for in Section 40-47-945, the director upon reasonable grounds may:

(1) require an applicant or licensee to submit to a mental or physical examination including a drug test by physicians designated by the director. The results of an examination are admissible in a hearing before the disciplinary panel, notwithstanding a claim of privilege under a contrary rule of law. A person who accepts the privilege of practicing dietetics in this State or who files an application for a license to practice dietetics in this State is deemed to have consented to submit to a mental or physical examination including a drug test and to have waived all objections to the admissibility of the results in a hearing before the disciplinary panel upon the grounds that the results constitute a privileged communication. If an applicant or licensee fails to submit to an examination when requested by the director under this section, unless the failure was due to circumstances beyond the person's control, the director shall enter an order automatically denying or suspending the license pending compliance and further order of the director. An applicant or licensee who is prohibited from practicing under this subsection must be afforded at reasonable intervals an opportunity to demonstrate to the director the ability to resume or begin the practice of dietetics with reasonable skill and safety to patients;

(2) obtain records specifically relating to the mental or physical condition of an applicant or licensee who is the subject of an investigation authorized by item (1) and these records are admissible in a hearing before the disciplinary panel, notwithstanding any other provision of law. A person who accepts the privilege of practicing dietetics in this State or who files an application to practice dietetics in this State is deemed to have consented to the disciplinary panel obtaining these records and to have waived all objections to the admissibility of these records constitute a privileged communication. If a licensee or applicant refuses to sign a written consent for the disciplinary panel or director to obtain these records when requested under this section, unless the failure was due to circumstances beyond the person's control, the director shall enter an order automatically denying or suspending the license pending compliance and further order of the disciplinary panel. An applicant or licensee who is prohibited from practicing dietetics under this section must be afforded at reasonable intervals an opportunity to demonstrate to the director the ability to resume or begin the practice of dietetics with reasonable skill and safety to patients.

Section 40-47-955. (A) Upon a recommendation by the disciplinary panel that one or more of the grounds for discipline exists, as provided for in Section 40-47-945 the director may:

(1) issue a public reprimand;

(2) impose a fine not to exceed five hundred dollars;

(3) place the licensee on probation, restrict the license, or suspend the license for a definite or indefinite time and prescribe conditions to be met during probation, restriction or suspension, respectively, including, but not limited to, satisfactory completion of additional education, and supervision or continuing education programs as may be specified; or

(4) permanently revoke the license.

(B) A final order of the department refusing to issue a license to an applicant or of the director disciplining a licensee under this section, except for a private reprimand, is public information.

(C) The department may establish a procedure to allow a licensee who has been issued a public reprimand to petition the department for expungement of the reprimand from the licensee's record.

Section 40-47-960. A licensee who is under investigation for misconduct as defined in Section 40-47-945 for which the director may take disciplinary action may voluntarily surrender his license to the department. The voluntary surrender invalidates the license at the time of its relinquishment, and no person whose license is surrendered voluntarily may practice dietetics until the department reinstates the license. A person practicing dietetics during the period of voluntary license surrender is considered an illegal practitioner and is subject to the penalties provided by this chapter. The surrender of a license may not be considered as an admission of guilt in a proceeding under this chapter. The surrender does not preclude the director from imposing conditions on the acceptance of the proffered surrender and does not preclude the director from taking disciplinary action against the licensee.

Section 40-47-965. A person aggrieved by an action of the department may appeal the decision to an administrative law judge in accordance with the Administrative Procedures Act. Service of a notice of appeal does not stay the director's decision pending completion of the appellate process.

Section 40-47-970. (A) Service of any notice provided for by law upon a nonresident licensed under this chapter or upon a resident who having been licensed, subsequently becomes a nonresident or after due diligence cannot be found at his usual abode or place of business in this State, may be made by leaving with the director of the department a copy of the notice and any accompanying documents. A copy of the notice, accompanying documents, and a certified copy of the service on the director must be mailed to the licensee at his last known address, return receipt requested. The director shall keep a record of the day of the service of the notice, and the return receipt must be attached to be made a part of the return of service of the notice by the department.

(B) A continuance may be given in any hearing under this chapter for which notice is given pursuant to this section so as to afford the licensee a reasonable opportunity to appear and be heard.

Section 40-47-975. (A) A communication, whether oral or written, made on behalf or on behalf of a person, to the director, an investigator or disciplinary panel on matters relating to the discipline of a licensee, whether by way of complaint or testimony, is privileged and no action or proceeding, civil or criminal, may be brought against the person, by or on whose behalf the communication is made, except upon proof that the communication was made with malice.

(B) Nothing in this chapter may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor as prohibiting the respondent from normal access to the charges and evidence filed against him as part of due process under the law.

(C) Notwithstanding the provisions of this section, a final order of the director disciplining a licensee is public information as provided for in Section 40-47-955.

Section 40-47-980. (A) It is unlawful for a person not licensed under this article, or whose license has been suspended or revoked by the department:

(1) to hold himself or herself out as a dietitian, nutritionist, licensed dietitian or licensed nutritionist, alone or in combination, or use the letters 'LD,' 'LN,' 'LDN' or any facsimile or combination in any words, letter, abbreviations or insignia;

(2) present as his own license of another;

(3) allow the use of his license by an unlicensed person;

(4) give false or forged evidence to the department in obtaining a license under this chapter;

(5) falsely impersonate another license holder of like or different name;

(6) use or attempt to use a license that has been revoked; or

(7) otherwise violate a provision of this chapter.

(B) The department may institute civil action in the circuit court, in the name of the State, for injunctive relief against any person violating the provisions of this chapter of the regulations or orders of the department or disciplinary panel. For each violation, the court may, in its discretion, impose a fine of no more than one thousand dollars."

SECTION 2. Initial recommendations for appointment to the advisory panel established pursuant to this act must be made within forty-five days after effective date of this act.

SECTION 3. This act takes effect one hundred twenty days after approval of the Governor./

Renumber sections to conform.

Amend totals and title to conform.

JOE E. BROWN, for Committee.

STATEMENT OF ESTIMATED FISCAL IMPACT

ESTIMATED FISCAL IMPACT ON GENERAL FUND EXPENDITURES IS:

$0 (No additional expenditures or savings expected)

ESTIMATED FISCAL IMPACT ON FEDERAL & OTHER FUND EXPENDITURES IS:

A Cost to Federal and/or Other Funds

EXPLANATION OF IMPACT:

The Department of Labor, Licensing and Regulation has determined that Senate Bill 304 would have no impact on the General Fund of the State. Enactment of the bill would require the expenditure of other funds derived from license fees.

The department estimates, using comparable existing boards with similar number of licensees, that implementation would require annual expenditures totaling $122,500. Costs include 2.20 FTE, $63,000 for personal service and fringe benefits, and operating expenses of $59,500.

SPECIAL NOTES:

Proviso 50.7 of the FY 1998-99 Appropriation Act requires the Professional and Occupational Licensing Agencies to remit 10% of all revenues collected to the General Fund of the State. Therefore, pursuant to Section 2-7-71 of the 1976 South Carolina Code of Laws, the Board of Economic Advisors is the appropriate agency to address any revenue impact of this legislation.

Approved By:

Don Addy

Office of State Budget

A BILL

TO AMEND CHAPTER 47, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PHYSICIANS, SURGEONS, AND OSTEOPATHS, AND THE STATE BOARD OF MEDICAL EXAMINERS, BY ADDING ARTICLE 7 SO AS TO PROVIDE FOR THE LICENSURE AND REGULATION OF DIETETICS; TO ESTABLISH THE COMMITTEE OF DIETETICS AS AN ADVISORY COMMITTEE TO THE BOARD AND TO PROVIDE FOR ITS POWERS AND DUTIES; TO ESTABLISH FEES; AND TO PROVIDE PENALTIES.

Whereas, the General Assembly finds that the practice of dietetics (Medical Nutrition Therapy) in South Carolina affects the public health, safety, and welfare and should be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of dietetics and from unprofessional conduct by persons licensed to practice dietetics; and

Whereas, the General Assembly also recognizes the practice of dietetics to be a dynamic and changing art and science, the practice of which is continually evolving to embrace contemporary ideas and more sophisticated methods to ensure patient health and progress; and

Whereas, the General Assembly further expresses its intent that nothing in this act may be construed to allow, authorize, or otherwise permit a practitioner of dietetics to practice medicine, surgery, or any other form of licensed medical care. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 47, Title 40 of the 1976 Code is amended by adding:

"Section 40-47-805. This article may be cited as the 'South Carolina Dietetics Practice Act.'

Section 40-47-810. The General Assembly recognizes that the practice of dietetics (Medical Nutrition Therapy) in South Carolina affects the public health, safety and welfare and should be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of dietetics and from unprofessional conduct by persons licensed to practice dietetics. However, restrictions must be imposed to the extent necessary to protect the public from significant and discernible danger to health and yet not in such a manner which will unreasonably affect the competitive market.

Section 40-47-815. As used in this chapter:

(1) `Advisory panel' means the Advisory Panel for Dietetics under the department.

(2) `Approved dietetic school' means a facility which meets minimum standards for training and curriculum as determined by regulations of the department.

(3) `Department' means the South Carolina Department of Labor, Licensing and Regulation.

(4) `Director' means the director of the department or their designee.

(5) `Disciplinary panel' means the Disciplinary Panel for Dietetics under the department.

(6) `Dietetics' or `nutrition' means the integration and application of principals derived from the science of nutrition, biochemistry, physiology, food and management and from behavioral and social sciences to achieve and maintain a healthy status. The primary function of dietetic practice is the provision of nutrition care services.

(7) `Licensure' means the procedure by which a person applies to the department and is granted approval to practice dietetics.

(8) `Licensed dietitian' means an individual licensed in good standing to practice dietetics or nutrition pursuant to the provisions of this article. For purposes of this article, `dietitian' is synonymous with `nutritionist'.

(9) `Nutrition care services' or `medical nutrition therapy' means any part of all of the following: assessing the nutritional needs of individuals and groups and determining resources and constraints in the practice setting; establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and financial constraints; providing nutritional counseling in health and disease prevention; developing, implementing, and managing nutrition care systems; evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services; and transcribing a verbal order into patient records for cosignature by the ordering physician and implementing of the physician's written and verbal orders which pertain to the practice of dietetics, if this practice is specifically authorized by the medical director and the health care facility. In the delivery of dietetic home care this practice must be authorized specifically by the physician sponsor.

`Nutrition care services' does not include the retail sale of food products or vitamins and minerals.

Section 40-47-820. Individuals holding themselves out to be dietitians and nutritionists employed to provide dietetic and medical nutrition therapy for inpatients, outpatients, and home patients must be licensed in accordance with this article.

Section 40-47-825. This article does not apply to:

(1) a health care professional who is licensed by the State, or who by passage of an examination certified by the National Council of Health certifying agencies has proven to be competent in one or more of the functions included in the definition of dietetics or medical nutrition therapy, as long as the person does not represent himself of herself as a dietitian or nutritionist;

(2) a dietician serving in the armed forces of the public health service of the United States or employed by the Department of Veterans Affairs when performing duties associated with that service or employment;

(3) a student or trainee working under the direct supervision of a licensed dietitian while fulfilling an experience requirement or pursuing a course of study to meet requirements for licensure, for a limited period of time as determined by the department;

(4) a person aiding the practice of dietetics, if the person works under the direct supervision of a licensed dietician and performs only support activities that do not require formal academic training in the basic food, nutrition, chemical, biological, behavioral and social sciences that are used in the practice of dietetics;

(5) an employee of or a person who contracts with the State, a political subdivision of the State, or a local school administrative unit while engaged in the practice of dietetics within the scope of that employment;

(6) a retailer who does not hold himself out to be a dietician when that retailer furnishes nutrition information to customers on food, food materials, dietary supplements, and other goods sold at his retail establishment, in connection with the marketing and distribution of those goods;

(7) a person who provides weight control services, provided a dietitian registered by the Commission on Dietetic Registration of the American Dietetic Association or a dietician licensed in another state that has licensure requirements that are equivalent to the requirements in this State:

(a) has reviewed the service;

(b) is available for consultation; and

(c) approves a change in the service prior to its initiation.

(8) an employee or independent contractor of a hospital or health care facility licensed by this State;

an herbalist, or other person who does not hold himself or herself out to be a dietitian, when that person furnishes nutritional information on food, food materials, or dietary supplements or when that person furnishes nonfraudulent, specific nutritional information and counseling about reported or historical use of herbs, vitamins, minerals, amino acids, carbohydrates, sugars, enzymes, food concentrates or other foods.

Section 40-47-830. Nothing in this article may be construed to require direct third-party reimbursement to persons licensed under this article.

Section 40-47-835. (A) There shall be created under the department's Division of Professional and Occupational Licensing, and advisory panel and a disciplinary panel for dietetics. Members shall be appointed by the Governor. Nominations for appointments to the advisory or disciplinary panel may be submitted to the Governor from any individual, group or association. A vacancy on either panel must be filled in the manner of the original appointment for the remainder of the unexpired term. No member may serve more than two full terms. The Governor may remove a member of either panel in accordance with Section 1-3-240.

(B) Members of the advisory and disciplinary panels must be compensated for their services as provided for in Section 40-1-50(A). Panel members must be dietetics therapists and must have been engaged in the practice of dietetics for not fewer than three consecutive years before appointment and must practice in this State.

(C) Each panel will annually elect a chairman to preside and represent the panel as may be necessary. Each panel shall meet upon the call of the director. A majority of the members of each panel constitutes a quorum; however, if there is a vacancy, a majority of the members serving constitutes a quorum. Panel members are required to attend meetings or to provide proper notice and justification of inability to do so. Unexcused absences from meetings may result in removal as provided for in Section 1-3-240.

Section 40-47-840. (A) The Dietetics Advisory Panel will consist of five members, one of whom must be:

(1) a professional whose primary practice is clinical dietetics;

(2) a professional whose primary practice is community or public health dietetics;

(3) a professional whose primary practice is consulting;

(4) a professional whose primary practice is in management of nutritional services; and

(5) a member appointed from the general public.

(B) Members serve a term of four years and until the successors are appointed.

(C) The duties of the advisory panel are to advise the department in the development of regulations, statutory revisions, and such other matters as the department may request in regard to the administration of this chapter.

(D) Final decisions in all matters rest with the director.

Section 40-47-845. (A) The Disciplinary Panel will consist of three members, one of whom must be:

(1) an educator on the faculty of a college or university, specializing in the field of dietetics;

(2) a dietitian who serves coterminously with the Governor;

(3) a member of the general public.

(B) Members serve a term of four years and until their successors are appointed.

(C) The disciplinary panel is responsible for advising the department concerning matters relating to violations of this chapter. The panel will conduct hearings and, on the basis of the findings thereof, recommend disciplinary action to the director for final decision and order.

Section 40-47-850. (A) The director may employ and establish compensation for personnel the director considers necessary and appropriate for the administration of this chapter.

(B) Duties must be prescribed by the director and may include, but are not limited to:

(1) maintaining and preserving records;

(2) receiving and accounting for all monies received by the department;

(3) issuing necessary notices to licenses;

(4) determining the eligibility of applicants for examination and licensure;

(5) licensing and renewing the licenses of qualified applicants;

(6) promulgating regulations to carry out this chapter including, but not limited to, establishing a code of ethics to govern the conduct and practices of persons licensed under this chapter; and

(7) where appropriate, preparing, administering, and grading the examination or contracting for the preparation, administration or grading of the examination.

Section 40-47-855. The department shall prepare and submit an annual report on the administration of this chapter in accordance with Section 40-1-50.

Section 40-47-860. The department shall keep a record and a registry in accordance with Section 40-1-50.

Section 40-47-865. The department shall prepare and publish a roster in accordance with Section 40-1-50.

Section 40-47-870. The department shall charge and collect the following fees:

(1) dietetics application and initial licensing fee of one hundred fifty dollars;

(2) biennial dietetics licensure renewal fee of one hundred and twenty dollars;

(3) initial inactive license status fee of one hundred dollars;

(4) biennial renewal fee for inactive status of one hundred dollars;

(5) reinstatement fee of fifty dollars for renewals received after September 30 but before November 1; and

(6) replacement fee of ten dollars for replacing a license.

Fees may be adjusted by the director to ensure that they are sufficient, but not excessive to cover the costs to the state for the operation of the dietetics program. All fees are nonrefundable.

Section 40-47-875. The department has jurisdiction over the actions committed or omitted by current and former licensees during the entire period of licensure. The department has jurisdiction to act on any matter which arises during the practice authorization period.

Section 40-47-880. No person may practice dietetics without a license issued in accordance with this chapter. A person licensed by the State under this title or any other provision of law whose scope of practice overlaps with the practice of dietetics is not also required to be licensed under this chapter unless the person holds himself out to be a practitioner of dietetics.

Section 40-47-885. To be licensed by the department as a dietitian a person must:

(1) have successfully completed the requirements for current registration as a registered dietitian by the Commission on Dietetic Registration; or

(2) where appropriate, has passed an examination as prescribed by the department and has received a post-baccalaureate degree from a regionally accredited college or university or a master's degree in human nutrition, nutrition education, foods and nutrition, public health nutrition, or an equivalent major course of study as approved by the department.

Section 40-47-890. An applicant for licensure who has obtained his or her education outside of the United States and its territories must meet the requirements for current registration as registered dietitian by the Commission on Dietetic Registration.

Section 40-47-895. An applicant for licensure must be made in writing under oath on a form prescribed by the department and accompanied by all applicable fees.

Section 40-47-900. (A) If an applicant satisfied the licensure requirements and pays the applicable fees as provided for in this chapter, the department shall issue a license to the applicant. A license is a personal right and not transferable and the issuance of a license is evidence that the licensee is entitled to all rights and privileges of a dietitian while the license remains current and unrestricted.

(B) A person licensed under this chapter shall display the license in a prominent and conspicuous place in the person's place of business and shall include the number of the license in an advertisement of dietetics services appearing in a newspaper, airwave transmission, telephone directory or other advertising medium.

(C) Only a person licensed under this chapter may use the title of dietitian of nutritionist.

Section 40-47-905. The department shall issue a license to a person who holds an active license in another state if the standards for licensure in that state are at least the substantial equivalent to the licensing standards provided for this chapter, and the person satisfies any other requirements the department may prescribe in regulation.

Section 40-47-910. (A) A dietetics license must be renewed biennially and expire on September 30 of the second year. Application for renewal must be accompanied by the fee as provided for in Section 40-47-870. A license which has not been renewed by September 30 is invalid and only may be reinstated upon receipt of a renewal application postmarked before November 1 and accompanied by the biennial license fee and reinstatement fee.

(B) A person requesting inactive licensure must hold a valid unrestricted license issued by the department at the time inactive licensure is requested and agree not to practice dietetics while holding an inactive license. An inactive license may be renewed for up to four years.

Section 40-47-915. The department may deny a license to practice to any applicant who has committed any act that would be grounds for disciplinary action pursuant to this act, or who has been the subject of disciplinary action by another state or jurisdiction, who has failed to comply with a final order, or who has failed to demonstrate the basic qualifications or standards for practice authorization contained in the respective licensing act. It shall be incumbent upon the applicant to demonstrate to the satisfaction of the department that he or she meets all of the requirements for the issuance of a license.

Section 40-47-920. The department will suspend the license of any person who submits a check, money draft or similar instrument for payment of a fee which is not honored by the financial institution named. The suspension shall become effective ten days following delivery by certified mail of written notice of the dishonor and the impending suspension to such person's address. Upon notification of suspension, the person may reinstate the authorization upon payment of the fee and penalties required under statute or regulation. Such suspension shall be exempt from the Administrative Procedures Act.

Section 40-47-925. The department will revoke the license of any person found to be in violation of the Family Independence Act as it relates to child support enforcement requirements.

Section 40-47-930. Investigations by the department shall be conducted in accordance with Section 40-1-80.

Section 40-47-935. For the purpose of a proceeding under this chapter, the director or disciplinary panel may administer oaths and upon its own motion or upon request of any party, shall subpoena witnesses, compel witness's attendance, take evidence, and require the production of any matter which is relevant to the investigation including, but not limited to, the existence, description, nature, custody, condition, and location of any books, documents or other tangible items and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence. Upon failure to obey a subpoena or to answer questions propounded by the disciplinary panel may apply pursuant to the Administrative Procedures Act to an administrative law for an order requiring the person to appear before the disciplinary panel and to produce documentary evidence and gave other evidence concerning the matter under inquiry.

Section 40-47-940. (A) When the department has reason to believe that a person is violating or intends to violate a provision of this chapter or a regulation promulgated under this chapter, in addition to all other remedies, it may order the person to immediately cease and desist from engaging in the conduct. If the person is practicing dietetics without being licensed under this chapter the department also may apply to an administrative law judge for a temporary restraining order prohibiting the unlawful practice. The administrative law judge may issue a temporary restraining order ex parte and the department is not required to:

(1) post a bond;

(2) establish the absence of an adequate remedy at law; or

(3) establish that irreparable damage would result from the continued violation.

The director nor any other employee of the department may be held liable for damages resulting from a wrongful temporary restraining order.

(B) In accordance with the South Carolina Rules of Civil Procedure, the director also may seek from an administrative law judge other equitable relief to enjoin the violation or intended violation of this chapter or a regulation promulgated under this chapter.

Section 40-47-945. The director may take disciplinary action against a person who:

(1) used a false, fraudulent or forged statement of document or committed a fraudulent, deceitful or dishonest act in

(2) applying for licensure under this chapter;

has had his license to practice dietetics from another state or jurisdiction canceled, revoked, suspended or otherwise restricted;

(3) has violated a provision of this chapter, a regulation promulgated under this chapter, or an order of the department or the disciplinary panel;

(4) has intentionally or knowingly, directly or indirectly, aided or abetted in the violation or conspiracy to violate this chapter or a regulation promulgated under this chapter;

(5) has intentionally used a fraudulent statement in a document connected to the practice of dietetics or has made false, deceptive or misleading statements in the practice of dietetics or in advertising;

(6) has obtained fees or assisted in obtaining fees under intentionally fraudulent circumstances;

(7) has committed dishonorable, unethical or unprofessional conduct that is likely to deceive, defraud or harm the public;

(8) lacks the professional or ethical competence to practice dietetics;

(9) has been convicted of or has pled guilty to or nolo contendere to a felony or a crime which directly relates to the practice or ability to practice dietetics;

(10) has practiced dietetics while under the influence of alcohol or drugs or uses alcohol or drugs to such a degree as to render him unfit to practice dietetics; or

(11) has sustained a physical or mental disability, as determined by a physician, which renders further practice by the licensee dangerous to the public.

Section 40-47-950. When investigating grounds for taking disciplinary action based upon an alcohol or drug addiction, as provided for in Section 40-47-945 or a physical or mental disability, as provided for in Section 40-47-945, the director upon reasonable grounds may:

(1) require an applicant or licensee to submit to a mental or physical examination including a drug test by physicians designated by the director. The result of an examination are admissible in a hearing before the disciplinary panel, notwithstanding a claim of privilege under a contrary rule of law. A person who accepts the privilege of practicing dietetics in this State or who files an application for a license to practice dietetics in this State is deemed to have consented to submit to a mental or physical examination including a drug test and to have waived all objections to the admissibility of the results in a hearing before the disciplinary panel upon the grounds that the results constitute a privileged communication. If an applicant or licensee fails to submit to an examination when requested by the director under this section, unless the failure was due to circumstances beyond the person's control, the director shall enter an order automatically denying or suspending the license pending compliance and further order of the director. An applicant or licensee who is prohibited from practicing under this subsection must be afforded at reasonable intervals an opportunity to demonstrate to the director the ability to resume or begin the practice of dietetics with reasonable skill and safety to patients;

(2) obtain records specifically relating to the mental or physical condition of an applicant or licensee who is the subject of an investigation authorized by item (1) and these records are admissible in a hearing before the disciplinary panel, notwithstanding any other provision of law. A person who accepts the privilege of practicing dietetics in this State or who files an application to practice dietetics in this State is deemed to have consented to the disciplinary panel obtaining these records and to have waived all objections to the admissibility of these records constitute a privileged communication. If a licensee or applicant refuses to sign a written consent for the disciplinary panel or director to obtain these records when requested under this section, unless the failure was due to circumstances beyond the person's control, the director shall enter an order automatically denying or suspending the license pending compliance and further order of the disciplinary panel. An applicant or licensee who is prohibited from practicing dietetics under this section must be afforded at reasonable intervals an opportunity to demonstrate to the director the ability to resume or begin the practice of dietetics with reasonable skill and safety to patients.

Section 40-47-955. (A) Upon a recommendation by the disciplinary panel that one or more of the grounds for discipline exists, as provided for in Section 40-47-945 the director may:

(1) issue a public reprimand;

(2) impose a fine not to exceed five hundred dollars;

(3) place the licensee on probation, restrict the license, or suspend the license for a definite or indefinite time and prescribe conditions to be met during probation, restriction or suspension, respectively, including, but not limited to, satisfactory completion of additional education, and supervision or continuing education programs as may be specified; or

(4) permanently revoke the license.

(B) A final order of the department refusing to issue a license to an applicant or of the director disciplining a licensee under this section, except for a private reprimand, is public information.

(C) The department may establish a procedure to allow a licensee who has been issued a public reprimand to petition the department for expungement of the reprimand from the licensee's record.

Section 40-47-960. A licensee who is under investigation for misconduct as defined in Section 40-47-945 for which the director may take disciplinary action may voluntarily surrender his license to the department. The voluntary surrender invalidates the license at the time of its relinquishment, and no person whose license is surrendered voluntarily may practice dietetics until the department reinstates the license. A person practicing dietetics during the period of voluntary license surrender is considered an illegal practitioner and is subject to the penalties provided by this chapter. The surrender of a license may not be considered as an admission of guilt in a proceeding under this chapter. The surrender does not preclude the director from imposing conditions on the acceptance of the proffered surrender and does not preclude the director from taking disciplinary action against the licensee.

Section 40-47-965. A person aggrieved by an action of the department may appeal the decision to an administrative law judge in accordance with the Administrative Procedures Act. Service of a notice of appeal does not stay the director's decision pending completion of the appellate process.

Section 40-47-970. (A) Service of any notice provided for by law upon a nonresidential licensed under this chapter or upon a resident who having been licensed, subsequently becomes a nonresident or after due diligence cannot be found at his usual abode or place of business in this State, may be made by leaving with the director of the department a copy of the notice and any accompanying documents. A copy of the notice, accompanying documents, and a certified copy of the service on the director must be mailed to the licensee at his last known address, return receipt requested. The director shall keep a record of the day of the service of the notice, and the return receipt must be attached to be made a part of the return of service of the notice by the department.

(B) A continuance may be given in any hearing under this chapter for which notice is given pursuant to this section so as to afford the licensee a reasonable opportunity to appear and be heard.

Section 40-47-975. (A) A communication, whether oral or written, made on behalf or on behalf of a person, to the director, an investigator or disciplinary panel on matters relating to the discipline of a licensee, whether by way of complaint or testimony, is privileged and no action or proceeding, civil or criminal, may be brought against the person, by or on whose behalf the communication is made, except upon proof that the communication was made with malice.

(B) Nothing in this chapter may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor as prohibiting the respondent from normal access to the charges and evidence filed against him as part of due process under the law.

(C) Notwithstanding the provisions of this section, a final order of the director disciplining a licensee is public information as provided for in Section 40-47-955.

Section 40-47-980. (A) It is unlawful for a person not licensed under this article, or whose license has been suspended or revoked by the department:

(1) to hold himself or herself out as a dietitian, nutritionist, licensed dietitian or licensed nutritionist, alone or in combination, or use the letters 'LD,' 'LN,' 'LDN' or any facsimile or combination in any words, letter, abbreviations or insignia;

(2) present as his own license of another;

(3) allow the use of his license by an unlicensed person;

(4) give false or forged evidence to the department in obtaining a license under this chapter;

(5) falsely impersonate another license holder of like or different name;

(6) use or attempt to use a license that has been revoked; or

(7) otherwise violate a provision of this chapter.

(B) The department may institute civil action in the circuit court, in the name of the State, for injunctive relief against any person violating the provisions of this chapter of the regulations or orders of the department or disciplinary panel. For each violation, the court may, in its discretion, impose a fine of no more than one thousand dollars."

SECTION 2. Initial recommendations for appointment to the advisory panel established pursuant to this act must be made within forty-five days after effective date of this act.

SECTION 3. This act takes effect upon approval of the Governor.

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This web page was last updated on Wednesday, December 9, 2009 at 9:05 A.M.