Wisconsin Legislative Council

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Wisconsin Legislative Council

Terry C. Anderson, Director
Laura D. Rose, Deputy Director

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TO: REPRESENTATIVE JERRY PETROWSKI

FROM: Mary Matthias, Senior Staff Attorney

RE: LRB-0253/1, Relating to Licensure of Dietitian Nutritionists

DATE: September 14, 2011

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This memorandum responds to several questions that have been raised regarding LRB-0253/1, relating to the licensure of dietitian nutritionists.

Background

Under current law, certification by the Dietitians Affiliated Credentialing Board (the Board) is required for any person to designate himself or herself as a dietitian, claim to provide dietetic services, or use any title or initials that represent or may tend to represent the person as certified or licensed as a dietitian or certified or licensed in a nutrition-related field. Current law contains several exemptions to this requirement, which are described below. Violations of this prohibition are subject to a fine of not more than $1,000, imprisonment for not more than six months, or both.

The Board is authorized to issue certifications, establish criteria for the approval of dietitian educational programs and training, and establish a code of professional conduct for dietitians.

The draft makes numerous changes to the law governing the certification and practice of dietitians. The draft changes the name of the regulated profession from “dietitian” to “dietitian nutritionist” and changes the name of the entity regulating the profession from the “Dietitians Affiliated Credentialing Board” to the “Dietetic Nutrition Care Services Affiliated Credentialing Board.”

Similar to current law, the draft generally prohibits a person who is not licensed by the Board from designating himself or herself as a dietitian nutritionist, using any title or initials that represent or may tend to represent the person as licensed as a dietitian nutritionist, or from claiming to provide dietetic nutrition care services. Unlike current law, the draft does not prohibit a person from using any title or initials that represent or may tend to represent the person as certified or licensed in a nutrition-related field. However, with exceptions, the draft prohibits any person who is not licensed as a dietitian nutritionist from practicing nutrition care services. Current law does not contain a prohibition on the practice of dietetics. The draft maintains the same penalties as current law for violations of the prohibitions.

Under current law, the following persons are not required to be certified as a dietitian:

1. A person who is licensed or certified and lawfully practicing in certain fields, if the person practices within the scope of his or her license or certificate and does not claim to be a dietitian or licensed in a nutrition-related field.

2. A person who is pursuing a degree or certificate from an educational program approved by the board.

3. A dietetic technician or assistant working under the supervision of a certified dietitian.

4. A dietitian serving in the U.S. armed forces.

5. A person who is registered as a dietetic technician with the Commission on Dietetic Registration of the American Dietetic Association.

6. A person who markets or distributes food and other goods, who explains the use, benefits, or preparation of food and other goods, and who furnishes nutritional information about food and other goods, if that person does not claim to be a dietitian or certified dietitian and that person complies with applicable law.

Under the draft, with minor modifications, the general categories of persons described in items 1. to 5., remain exempt from the requirement to be licensed.[1]

Under the draft, the exemption in current law, which is described in item 6., above, is modified to read as follows:

A retailer or other person who sells food, food materials, dietary supplements, or other goods to consumers and who furnishes oral or written general nonmedical nutrition information related to the sale, marketing, and distribution of the food, food materials, dietary supplements, or other goods, including a person whose remuneration consists solely of commissions, overrides, bonuses, or differentials directly related to sales or other output derived from in-person sales to or solicitation of orders from ultimate consumers, primarily in the home.

The primary difference between the draft’s provision and the corresponding provision in current law is that current law permits a person operating under the exemption to furnish “nutritional information” about food and goods, while the draft limits the type of information that a person operating under this exemption may provide to “general nonmedical nutrition information” about the food or goods.

Current law does not contain a definition of “nutritional information.” The draft defines “general nonmedical nutrition information” as “information about any of the following that is not related to the dietetic nutrition therapy of a person or group:”

· Principles of good nutrition and food preparation.

· Foods to be included in a normal daily diet.

· Essential nutrients.

· Sources of essential nutrients, including food and supplements.

· Recommended amounts of essential nutrients.

· The actions of nutrients in the body.

· The effects of an excess or deficiency of a nutrient.

The draft contains two additional exemptions to the licensure requirement. First, under the draft, a license is not required for a person who provides weight control services through a weight control program, if the program is reviewed and approved in writing by a licensed dietitian nutritionist, a physician, person who is licensed or certified as a dietitian or dietitian nutritionist under the laws of another state, or a dietitian registered by the Commission on Dietetic Registration.

In addition, under the draft, a license is not required for a person practicing under the disciplines, tenets, or traditions of a religious organization and providing information or services to other persons who are adherents to or members of the same religious organization if the person provides to those adherents or members a written disclosure that he or she is not a licensed dietitian nutritionist and cannot provide dietetic nutrition care services.

Questions

How does the draft impact a person who is not licensed who uses the title “nutritionist”?

Neither current law nor the draft specifically prohibits any person from using the title “nutritionist.” Current law prohibits a person who is not certified by the Board from using any title or initials that represent or may tend to represent the person as certified or licensed in a nutrition-related field. Also, as discussed above, the draft prohibits an unlicensed person from designating himself or herself as a “dietitian nutritionist.” [s. 448.76, Stats.]

How does the draft impact an unlicensed person who practices dietetic nutrition care services? How does the draft impact an unlicensed person who provides services that do not meet the definition of “dietetic nutrition care services”?

Current law does not prohibit the practice of dietetics by an uncertified person. Current law prohibits a person who is not certified as a dietitian from designating himself or herself as a dietitian or claiming to provide dietetic services.

With the exceptions described above, the draft prohibits an unlicensed person from “practicing dietetic nutrition care services.” [s. 448.71, Stats., as created by LRB-0253/1.] Presumably, to be found in violation of this prohibition, a person’s activities would have to meet the definition of “dietetic nutrition care services” established in the draft. If an unlicensed person’s activities consisted of only some, but not all, of the elements contained in the definition, the person would not be in violation of the statute. If an unlicensed person who is not subject to one of the exemptions provides services, for compensation, that meet the definition of “dietetic nutrition care services,” the person is in violation of the statutes regardless of how they designate themselves. The definition of “dietetic nutrition care services” created in the draft is set forth below.

“Dietetic nutrition care services” means the integration and application of principles derived from the sciences of food, nutrition management, communication, biology, physiology, behavior, and the social sciences to achieve and maintain the optimal human health of a person or group and includes dietetic nutrition therapy and the use of the nutrition care process.

According to this definition, the practice of “dietetic nutrition therapy” and the practice of the “nutrition care process” are examples of types of dietetic nutrition care services. An unlicensed person who receives compensation for engaging in these activities would be in violation of the draft. Those terms are defined as follows:

“Dietetic nutrition therapy” means the application of dietetic nutrition care services and the nutrition care process to disease management, the treatment or rehabilitation of an injury, or the rehabilitation from surgery. “Dietetic nutrition therapy” includes the interpretation of dietary data and recommendation of nutrient needs in connection with a medically prescribed diet, the monitoring of food and prescription drug interactions, and the development and management of a food service operation whose chief function is nutrient care and the provision of a medically prescribed diet.

“Nutrition care process” means an integrated and systematic problem-solving method consisting of distinct but interrelated and connected steps used to identify, analyze, and address a nutrition-related problem of a person or group and provide nutrition-related care to that person or group. The steps of the nutrition care process are the following:

(a) Nutrition assessment. The systematic process of obtaining, verifying, and interpreting biochemical, anthropometric, physical, and dietary data to determine the nature, cause, and extent of a nutrition-related problem.

(b) Nutrition diagnosis. The identification and labeling of a nutrition-related problem that requires the treatment of a dietitian nutritionist.

(d) Nutrition monitoring and evaluation. The identification and evaluation of nutrition-related goals and outcomes relative to a dietitian nutritionist’s nutrition diagnosis and nutrition intervention plan to determine the progress made in achieving desired outcomes of nutrition care and whether planned interventions should be continued or revised.

Under the draft, who may provide “general nonmedical nutrition information” to another person or group for compensation? What disclosure requirements does the draft create?

Under the draft, a person who is not a licensed dietitian, or is not exempt from the requirement to be licensed, may provide “general nonmedical nutrition information” to another person or group for compensation if the person provides certain disclosures. See page 3 of this memorandum for the definition on “general nonmedical nutrition information.”

Under the draft, a person who is not licensed, or exempt from the licensing requirement, who provides general nonmedical nutrition for compensation, must provide a written disclosure that contains the following information:

1. The name, professional title, business address, and business telephone number of the person.

2. A statement that the person is not a licensed dietitian nutritionist and cannot provide dietetic nutrition care services.

3. A statement that the person may not provide a medical diagnosis or recommend that the other person or group continue or discontinue medically prescribed treatments.

The unlicensed person must post a copy of the written disclosure in a conspicuous place in the person’s office or place of practice or business.

How will the draft affect the number of people providing advice on diet and health issues to consumers in Wisconsin?

It is not possible to estimate the number of people, if any, that the draft would prohibit from providing diet and health advice that they are currently providing. The draft would affect only those persons whose activities fall within the definition of “dietetic nutrition care services,” as discussed above, and whose activities are not covered by one of the exemptions described above. Further, even if a persons’ activities are not covered by an exemption, if the person is providing only “general nonmedical nutrition information” they would be allowed to continue to practice if they provided the required disclosures discussed above.

How does the definition of “nonmedical speech” created in the draft impact the practice of medicine in Wisconsin?

The draft creates a definition of “general nonmedical nutrition information.” This definition applies only to subch. V of ch. 448, Stats., which pertains only to dietetic nutrition care services. The definition does not apply to, and has no effect on, subch. II of ch. 448, Stats., which governs the practice of medicine.

How does the draft impact persons currently providing weight loss services?

The draft specifies that a person who provides weight control services to another person or group through a weight control program, or who revises a weight control program, is not required to be licensed as a dietitian nutritionist if one of the following persons reviews the program and approves it in writing:

· A licensed dietitian nutritionist.

· A physician.

· A person who is licensed or certified as a dietitian or dietitian nutritionist under the laws of another state that the affiliated credentialing board determines to be substantially equivalent to the licensure requirements created in the draft.

· A dietitian registered by the registration commission.

Current law does not specifically require a person providing weight loss services to be certified as a dietitian or to have a dietitian review or approve a weight loss program. Under current law, a person providing weight loss services would be required to be certified if they claimed to provide dietetic services.

How does the draft affect the practice of Christian Science and other religions?

The draft generally prohibits any person who is not licensed as a dietitian nutritionist from practicing dietetic nutrition care services. The draft creates an exception from this prohibition for a person practicing under the disciplines, tenets, or traditions of a religious organization who provides information or services to other persons who are adherents to or members of the same religious organization. Such a person is not required to be licensed if the person provides to those adherents or members a written disclosure that he or she is not a licensed dietitian nutritionist and cannot provide dietetic nutrition care services.

As described above, current law does not prohibit the practice of dietetics by an uncertified person. Thus, under current law, a member of a religious organization may provide services to the members of the religious organization without providing any disclosure) if the person does not designate himself or herself as a dietitian or as certified or licensed in a nutrition-related field, or claim to provide dietetic services.