South Carolina General Assembly
114th Session, 2001-2002

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Bill 917


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      917
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  20020123
Primary Sponsor:                  Hayes
All Sponsors:                     Hayes
Drafted Document Number:          l:\council\bills\nbd\11048ac02.doc
Residing Body:                    Senate
Current Committee:                Medical Affairs Committee 13 SMA
Subject:                          Dietetics, licensure and regulation of


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  20020123  Introduced, read first time,           13 SMA
                  referred to Committee


              Versions of This Bill

View additional legislative information at the LPITS web site.


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

A BILL

TO AMEND TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 20 SO AS TO PROVIDE FOR THE LICENSURE AND REGULATION OF DIETETICS; TO ESTABLISH THE ADVISORY PANEL FOR DIETETICS AND THE DISCIPLINARY PANEL FOR DIETETICS AND TO PROVIDE FOR THEIR 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. Title 40 of the 1976 Code is amended by adding:

"CHAPTER 20

Dietetics

Section 40-20-05. This chapter may be cited as the 'South Carolina Dietetics Practice Act'.

Section 40-20-10. 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 40-20-15. 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 the director's designee.

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

(6) 'Dietetics' or 'nutrition' means the integration and application of principles 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 chapter, 'dietitian' is synonymous with 'nutritionist'.

(9) 'Nutrition care services' or 'medical nutrition therapy' means any part or all of the following:

(a) assessing the nutritional needs of individuals and groups and determining resources and constraints in the practice setting;

(b) establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints;

(c) providing nutritional counseling in health and disease prevention;

(d) developing, implementing, and managing nutrition care systems;

(e) evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services;

(f) transcribing a verbal order into patient records for cosignature by the ordering physician and implementing of the physicians' 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 where the care is taking place. 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 40-20-20. 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 40-20-25. This chapter 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, if the person does not represent himself or herself as a dietitian or nutritionist;

(2) a dietitian serving in the armed forces or 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 dietitian 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 or herself out to be a dietitian 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 if a dietitian registered by the Commission on Dietetic Registration of the American Dietetic Association or a dietitian licensed in another state that has licensure requirements that are equivalent to the requirements in this State:

(a) has reviewed the weight control 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 40-20-30. Nothing in this chapter may be construed to require direct third-party reimbursement to persons licensed under this chapter.

Section 40-20-35. (A) There is created under the Department of Labor, Licensing and Regulation, Division of Professional and Occupational Licensing the Dietetics Advisory Panel and the Disciplinary Panel for Dietetics. Members must be appointed by the Governor. Nominations for appointments to the advisory panel or the 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 panel member in accordance with Section 1-3-240.

(B) Members of the advisory panel and the disciplinary panel 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, must practice in this State, and must have been engaged in the practice of dietetics for not fewer than three consecutive years before appointment. However, 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 annually shall 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 40-20-40. (A) The Dietetics Advisory Panel shall consist of these members:

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

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

(3) a dietician whose primary practice is consulting;

(4) a dietician 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 their successors are appointed and qualify.

(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) The director shall make final decisions in all matters rest with the director.

Section 40-20-45. (A) The Disciplinary Panel for Dietetics shall consist of these members:

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

(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 and qualify.

(C) The disciplinary panel shall advise the department concerning matters relating to violations of this chapter. The panel shall conduct hearings and, on the basis of the findings made, recommend disciplinary action to the director who shall make the final decision in all cases and issue necessary orders.

Section 40-20-50. (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 in connection with this chapter;

(3) issuing necessary notices to licensees;

(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 examinations or contracting for the preparation, administration, or grading of examinations.

Section 40-20-55. The department shall prepare and submit an annual report on the administration of this chapter in accordance with Section 40-1-50.

Section 40-20-60. The department shall keep a record and a registry in accordance with Section 40-1-50.

Section 40-20-65. The department shall prepare and publish a roster in accordance with Section 40-1-50.

Section 40-20-70. 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 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 thirtieth but before November first; and

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

All fees are nonrefundable.

Section 40-20-75. 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 40-20-80. No person may practice dietetics without a license issued in accordance with this chapter. A person licensed by the State under any provision of law whose scope of practice overlaps with the practice of dietetics is also not required to be licensed under this chapter unless the person holds himself or herself out to be a practitioner of dietetics.

Section 40-20-85. To be licensed by the department as a dietician a person shall:

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

(2) where appropriate, have passed an examination as prescribed by the department and have 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 40-20-90. 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 a registered dietitian by the Commission on Dietetic Registration.

Section 40-20-95. An application for licensure must be made in writing under oath on a form prescribed by the department and accompanied by all applicable fees.

Section 40-20-100. (A) If an applicant satisfies 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 dietetic 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 40-20-105. 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 in this chapter and the person satisfies any other requirements the department may prescribe in regulation.

Section 40-20-110. (A) A dietetics license must be renewed biennially and expires on September thirtieth of the second year. Application for renewal must be accompanied by the fee as provided for in Section 40-20-70. A license which has not been renewed by September thirtieth is invalid and may only be reinstated upon receipt of a renewal application postmarked before November first 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 40-20-115. The department may deny a license to practice to any applicant who has committed an act that would be grounds for disciplinary action pursuant to this chapter, 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 is 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 40-20-120. The department shall suspend the license of a 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 becomes effective ten days following delivery by certified mail of written notice of the dishonor and the impending suspension to the person's address. Upon notification of suspension, the person may reinstate the authorization upon payment of the fee and penalties required under state law or regulation. This suspension is exempt from procedures under the Administrative Procedures Act.

Section 40-20-125. The department shall 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 40-20-130. Investigations by the department must be conducted in accordance with Section 40-1-80.

Section 40-20-135. For the purpose of a proceeding under this chapter, the director or the 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 40-20-140. (A) If 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, the department 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 or any other employee of the department may not 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 40-20-145. The director may take disciplinary action against a person who:

(1) used a false, fraudulent, or forged statement or 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 or her 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 40-20-150. When investigating grounds for taking disciplinary action based upon an alcohol or drug addiction, as provided for in Section 40-20-145 or a physical or mental disability, as provided for in Section 40-20-145, 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 in a hearing before the board upon the grounds that the same 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 40-20-155. (A) Upon a recommendation by the disciplinary panel that one or more of the grounds for discipline exists, as provided for in Section 40-20-145, 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 40-20-160. A licensee who is under investigation for misconduct as defined in Section 40-20-145 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 40-20-165. A person aggrieved by a 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 40-20-170. (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 by 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 40-20-175. (A) A communication, whether oral or written, made by 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 40-20-155.

Section 40-20-180. (A) It is unlawful for a person not licensed under this chapter, 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 or her own the license of another;

(3) allow the use of his or her 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 or of the regulations or orders of the department or disciplinary panel. For each violation, the court may impose a fine of no more than one thousand dollars."

SECTION 2. Initial recommendations for appointment to the Dietetics Advisory Panel established pursuant to Section 40-20-35 of the 1976 Code, as added by Section 1 of this act, must be made within forty-five days after this act's effective date.

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

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