Justification for Adoption of Administrative Rules

JUSTIFICATION FOR ADMINISTRATIVE RULE ADOPTION
Dietitians
16 TAC Chapter 116, amendments Subchapter A, §116.2; Subchapter C, §116.20; Subchapter D, §116.30; Subchapter E, §116.40 and §116.44; Subchapter F, §116.50; Subchapter I, §116.80 and §116.83; Subchapter J, §116.91; Subchapter K, §§116.100, 116.101, and 116.103 - 116.105; Subchapter L, §116.110; Subchapter M, §116.120; Subchapter N, §116.130; and Subchapter O, §116.142; and repeal Subchapter E, §116.41 and §116.43; Subchapter G, §§116.60 - 116.65; and Subchapter H, §116.70,

The Texas Commission of Licensing and Regulation (Commission) adopts amendments to  existing rules at 16 Texas Administrative Code (TAC), Chapter 116, Subchapter A, §116.2; Subchapter C, §116.20; Subchapter D, §116.30; Subchapter E, §116.40 and §116.44; Subchapter I, §116.80 and §116.83; Subchapter J, §116.91; Subchapter K, §§116.100, 116.101, 116.103 - 116.105; Subchapter L, §116.110; Subchapter M, §116.120; Subchapter N, §116.130; Subchapter O, §116.142; and adopts the repeal of existing rules at Subchapter E, §116.41 and §116.43; Subchapter G, §§116.60 - 116.65; and Subchapter H, §116.70, regarding the Dietitians program, without changes to the proposed text as published in the March 16, 2018, issue of the Texas Register (43 TexReg 1544). The rules will not be republished.

The Commission also adopts amendments at 16 TAC Chapter 116, Subchapter F, §116.50, regarding the Dietitians program, with changes to the proposed text as published in the March 16, 2018, issue of the Texas Register (43 TexReg 1544). The rules will be republished.

JUSTIFICATION AND EXPLANATION OF THE RULES

This rulemaking is necessary to implement House Bill 4007 (H.B. 4007), 85th Legislature, Regular Session (2017); to eliminate unnecessary and outdated rules regarding the required preplanned professional experience programs and internships to reflect current Dietitians industry practice; and to make clean-up changes to the current rules identified by Department staff.   These three categories of rule changes have been combined into one adoption, since there is overlap in a few of the affected rule sections and this combined adoption eliminates the need for separate rulemakings.

H.B. 4007 Changes
H.B. 4007, in part, made changes to the Dietitians statute, Occupations Code Chapter 701.  H.B. 4007 repealed the Provisional Licensed Dietitian and the Temporary Licensed Dietitian provisions.  It also repealed provisions that were outdated or were barriers to efficient regulation.  It also repealed redundancies in the Dietitians statute with provisions already found in Occupations Code Chapter 51, which is the enabling statute for the Texas Commission of Licensing and Regulation (Commission) and the Department and which applies to all Department programs. The adopted rules implement these changes.

Changes to Reflect Current Dietitians Industry Practice Regarding Preplanned Professional Experience Programs and Internships
The adopted rules made changes to the Department’s rules regarding preplanned professional experience programs and internships in dietetics practice.  These changes eliminate unnecessary and outdated rules and reflect the current Dietitians industry practice. 

The Commission on Dietetic Registration (CDR) is the credentialing agency that registers dietitians on a national basis.  The requirements to become a registered dietitian include completing a preplanned professional experience program, internship, or other accredited supervised program or pathway approved or recognized by CDR and passing the CDR written examination. Applicants must meet the CDR requirements to be eligible to take the CDR examination.

Under the Dietitians statute and rules, the requirements to become a Texas licensed dietitian include completing a preplanned professional experience program or internship in dietetics practice and passing a license examination. As provided for by statute and rule, the required examination for licensure is the CDR examination.

Under the former rules, the preplanned professional experience program or internship had to be approved by the Department.  The former rules, however, provided that an applicant's preplanned professional experience program or internship accepted for registration by the CDR shall be acceptable for licensure by the Department. 

Since applicants must qualify under CDR’s requirements to take the CDR exam, persons seeking state licensure go through the CDR process to obtain the CDR registration prior to seeking a Texas license. Applicants were not using the separate, alternative paths for preplanned professional experience programs and internships set out the former rules.  Meeting the qualifications for CDR registration means that the person also meets or exceeds the qualifications for state licensure.  

Based on the Dietitians industry practice of persons completing preplanned professional experience programs or internships that are approved or recognized by CDR in order to meet the CDR requirements to qualify to take the CDR examination, there was no need to retain separate, alternative paths that are not approved or recognized by CDR. The adopted rules eliminate unnecessary and outdated provisions in the rules. 

Clean-up Changes

The adopted rules make clean-up changes identified by Department staff since the Dietitians program was transferred from the Department of State Health Services (DSHS) to the Department effective October 3, 2016, pursuant to S.B. 202, 84th Legislature, Regular Session (2015).

SECTION-BY-SECTION SUMMARY

The adopted rules amend §116.2, Definitions. The adopted rules amend the definition of licensee; remove the definition of provisional licensed dietitian; and renumber the definition of registered dietitian. These changes are a result of H.B. 4007.

The adopted rules amend §116.20, Degrees and Course Work. The adopted rules amend subsection (c) by removing the reference to provisional licensure. This change is a result of H.B. 4007.

The adopted rules amend §116.30, Preplanned Professional Experience Programs and Internships.  The adopted rules remove former subsections (e) and (h), regarding provisional licensure and provisional licensed dietitians. These changes are a result of H.B. 4007.

In addition, the adopted rules under §116.30 amend subsections (b), (c), and (d) to state that the Department approves, and accepts as meeting the licensure requirements, a preplanned professional experience program or an internship approved or recognized by the Commission on Dietetic Registration (CDR). The adopted rules eliminate the separate, alternative paths for preplanned professional experience programs and internships that have not been used in many years. These changes reflect the current Dietitians industry practice and ensure that a person seeking licensure meets or exceeds the statutory license requirements and is eligible to take the examination administered by CDR. 

The adopted rules under §116.30 also remove former subsections (e) and (f) to eliminate unnecessary and outdated provisions. The adopted rules re-letter former subsection (g) as new subsection (e) and update this subsection to reflect the current Dietitians industry practice. The license applicant must submit a photocopy of the CDR registration card in active status to show proof of completing the preplanned professional experience program or internship in dietetics practice. These changes are part of the changes to reflect current Dietitians industry practice regarding preplanned professional experience programs and internships in dietetics practice.

The adopted rules amend §116.40, License Examination Requirements. The adopted rules amend the title of the section and consolidate former §116.41(a) into §116.40 as new subsection (d). The remaining provisions under §116.41 were repealed as a result of H.B. 4007. 

The adopted rules repeal §116.41, License Examination Qualifications. The adopted repeal is a result of H.B. 4007, which repealed outdated license examination provisions from the statute.

The adopted rules repeal §116.43, Examination Failures. The adopted repeal is a result of H.B. 4007, which repealed the restriction on retaking the licensing examination if the applicant fails the examination three times.    

The adopted rules amend §116.44, Texas Jurisprudence Examination. The adopted rules update the cross-reference to other rules and remove the reference to a provisional licensed dietitian.  These changes are a result of H.B. 4007.

The adopted rules amend §116.50, Licensed Dietitians--Application and Eligibility Requirements.  The adopted rules remove former subsection (e) regarding the Department notifying the applicant whether the applicant qualifies to take the license examination.  This change is a result of H.B. 4007, which repealed outdated license examination provisions from the statute.   

In addition, the adopted rules under §116.50 provide that a license applicant shall submit a copy of a CDR registration in active status as proof that the applicant successfully completed the required preplanned professional experience program or internship in dietetics practice and passed the required examination.  The adopted rules remove the requirement that the applicant submit the internship or preplanned professional experience program documentation form. The adopted rules also add cross-references to the applicable sections in the statute and rules.  These changes are part of the changes to reflect current Dietitians industry practice regarding preplanned professional experience programs and internships in dietetics practice.

The adopted rules repeal Subchapter G, Provisional Licensed Dietitians. The adopted repeal is a result of H.B. 4007, which repealed the provisional licensed dietitian provisions from the statute.

The adopted rules repeal §116.60, Provisional Licensed Dietitians--Application and Eligibility Requirements. The adopted repeal is a result of H.B. 4007.  

The adopted rules repeal §116.61, Provisional Licensed Dietitians--Fitness of Applicants for Licensure. The adopted repeal is a result of H.B. 4007.  

The adopted rules repeal §116.62, Provisional Licensed Dietitians--Issuing Licenses and Identification Cards. The adopted repeal is a result of H.B. 4007.

The adopted rules repeal §116.63, Provisional Licensed Dietitians--License Term; Renewals. The adopted repeal is a result of H.B. 4007.  

The adopted rules repeal §116.64, Provisional Licensed Dietitians--Upgrading to Licensed Dietitian.  The adopted repeal is a result of H.B. 4007.  

The adopted rules repeal §116.65, Provisional Licensed Dietitians--Supervision. The adopted repeal is a result of H.B. 4007.

The adopted rules repeal Subchapter H, Temporary Licensed Dietitians. The adopted repeal is a result of H.B. 4007, which repealed the temporary licensed dietitian provisions from the statute.

The adopted rules repeal §116.70, Temporary Licensed Dietitians--Application and Eligibility Requirements; License Term.  The adopted repeal is a result of H.B. 4007.  

The adopted rules amend §116.80, Continuing Education--General Requirements and Hours.  The adopted rules remove former subsection (c) regarding provisional licensed dietitians and completing continuing education hours. This change is a result of H.B. 4007.   

The adopted rules amend §116.83, Continuing Education--Failure to Complete. The adopted rules remove the reference to provisional licensed dietitian and make a related technical change. These changes are a result of H.B. 4007.   

The adopted rules amend §116.91, Rules. The adopted rules remove the placeholder language and insert the specific citation to 16 TAC Chapter 100, General Provisions for Health-Related Programs. These changes are part of the clean-up changes.

The adopted rules amend §116.100, Display of License. The adopted rules amend subsection (a) by removing the reference to provisional licensed dietitians. This change is a result of H.B. 4007.

The adopted rules amend §116.101, Changes of Name or Address. The adopted rules amend subsection (a) by removing the reference to provisional licensed dietitians. This change is a result of H.B. 4007.     

The adopted rules amend §116.103, Disclosure. The adopted rules remove subsection (b) regarding provisional licensed dietitian disclosures in advertising and announcements of services. These changes are a result of H.B. 4007.    

The adopted rules amend §116.104, Unlawful, False, Misleading, or Deceptive Advertising. The adopted rules amend subsection (c) by removing references to provisional licensed dietitian and temporary licensed dietitian.  These changes are a result of H.B. 4007.   

The adopted rules amend §116.105, Code of Ethics. The adopted rules amend subsection (a) by removing former paragraph (12), regarding supervising provisional licensed dietitians, and by renumbering the following paragraphs. The adopted rules remove former subsection (c), regarding supervising a provisional licensed dietitian or a temporary licensed dietitian, and re-letter the following subsections. These changes are a result of H.B. 4007. In addition, the adopted rules remove unnecessary subheadings in former subsections (f) and (g) (re-lettered subsections (e) and (f)).  These changes are part of the clean-up changes.

The adopted rules amend §116.110, Fees. The adopted rules remove: the upgrade fee for provisional licensed dietitians under subsection (b); the provisional licensed dietitian fees under former subsection (c); and the temporary licensed dietitian fees under former subsection (d). The adopted rules also re-letter the subsequent subsections. These changes are a result of H.B. 4007. In addition, the adopted rules remove the application processing fee for preplanned professional experience approval under subsection (b). This change is part of the changes to reflect current Dietitians industry practice regarding preplanned professional experience programs and internships in dietetics practice.

The adopted rules amend §116.120, Complaints Regarding Standard of Care. The adopted rules remove the placeholder language and insert the specific citation to 16 TAC Chapter 100, General Provisions for Health-Related Programs. These changes are part of the clean-up changes.

The adopted rules amend §116.130, Administrative Penalties and Sanctions. The adopted rules make a technical change that reflects the change made by H.B. 4007. The bill repealed the program-specific administrative penalties section in Occupations Code Chapter 701. Occupations Code Chapter 51, which applies to all the Department’s programs, includes administrative penalties provisions, which will apply to the Dietitians program. These changes are a result of H.B. 4007.

The adopted rules amend §116.142, Licensed Dietitians Providing Diabetes Self-Management Training. The adopted rules remove former subsection (g), regarding provisional licensed dietitians.  This change is a result of H.B. 4007. In addition, the adopted rules revise or remove subheadings within the section.  These changes are part of the clean-up changes.

PUBLIC COMMENTS

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the March 16, 2018, issue of the Texas Register (43 TexReg 1544). During the 30-day public comment period the Department received 10 public comments from interested parties consisting of 7 individuals and the Board for Certification of Nutrition Specialists (BCNS), which submitted three public comments. Two of the individuals, who submitted written public comments, and the BCNS also provided oral public comments at the Dietitians Advisory Board meeting on May 3, 2018. The public comments received are summarized below.

Comment--One commenter, who is a Registered Dietitian Nutritionist and a Texas Licensed Dietitian, thanked the Department for implementing the improvements made to the statute.

Department Response--The Department appreciates this comment. The Department did not make any changes to the proposed rules in response to this public comment.  

Comment--The Board for Certification of Nutrition Specialists (BCNS) submitted three comments on the proposed rules.  Two of the comment letters were the same but were submitted to the Department through different means. The third comment letter was similar to the first two comment letters.  All three comments included recommended rule changes; an appendix entitled “Certified Nutrition Specialist Requirements Comparison of RD and CSN Preparation”; charts comparing the certification examinations of nutrition specialists by BCNS and of Registered Dietitians by the Commission on Dietetic Registration; a document entitled “CNS Supervised Practice Experience Handbook for Candidates & Supervisors” dated December 2017; a BCSN Exam Content Outline; and the BCNS Code of Ethics.  BCNS provided marked up versions of the existing rules to reflect the BCNS recommended rule changes to the requirements regarding education, experience, examinations, license application and eligibility, and continuing education. 

BCNS also provided oral public comments at the Dietitians Advisory Board meeting on May 3, 2018.  The oral public comments highlighted key issues identified in the written comment letters including the BCNS exam, the individualized program, the licensure of nutritionists in other states, and the statements from the Centers for Medicare and Medicaid Services and the U.S. Department of Labor, Bureau of Labor Statistics. The Department has summarized the issues raised in all three BCNS written public comments and the oral public comments and will address the comments together by topic.

Exam: In combination with retaining the individualized professional experience program, BCNS wanted the Department to recognize and include the BCNS Certified Nutrition Specialist (CNS) exam as an acceptable exam to becoming a licensed dietitian. BCNS expressed concerns that the rules only identify the Commission on Dietetic Registration (CDR) exam as the only acceptable licensing exam.  BCNS stated that CDR is not the only private credentialing body for nutrition professionals and stated that the Department has the authority under the statute to accept other exams.  BCSN provided documentation and charts comparing the content and areas of examination for the CDR Registered Dietitian (RD) exam and the BCNS Certified Nutrition Specialist CNS) exam. BCNS also provided recommended changes to the rules to add references to the BCNS examination,

Pre-Planned Professional Experience Program and Internship: In combination with recognizing and including the BCNS exam, BCNS wanted the Department to retain the individualized program pathway under the pre-planned professional experience program as an option for licensure candidates who complete a preplanned professional experience approved by the BCNS. BCNS also wanted the BCNS internship in nutrition to qualify as an acceptable internship for obtaining the dietitian license. BCNS provided recommended changes to the rules to add “a clinical experience as part of a graduate nutrition program” under the current list of acceptable internships in “dietetics.”

Curriculum/Courses:  BCNS also recommended changes to the curriculum of study to become a licensed dietitian. BCNS wanted a more flexible curriculum that would recognize alternative courses and make some of the required dietitian courses elective. BCNS provided charts regarding the Certified Nutrition Specialists areas of study. BCNS also provided recommended changes to the Dietitian rules to include areas of study and continuing education for Certified Nutrition Specialists.

Licensing and Recognition of Nutritionists: BCNS stated that many other states recognize nutrition specialists, and BCNS wanted the Department to recognize them as well. According to BCNS, Certified Nutrition Specialists are authorized to practice in 33 states, with licensure available in 14 states and growing.  (A specific list of states was not referenced or provided with the BCNS written or oral public comments.)  BCNS stated that the industry has changed in the last two decades since the Texas law was enacted. BCNS stated that its recommended changes to the rules would create a pathway for other highly qualified nutrition professionals to obtain licensure.

BCNS also stated that the Centers for Medicare and Medicaid Services (CMS) in its 2014 final rule on Hospital Conditions of Participation, related to the Medicare and Medicaid Programs, noted that the use of the terms “registered dietitian” and “qualified dietitian” “was not meant to be exclusive of other nutrition professionals’ and was not intended to be defined solely as ‘an individual specifically registered with the Commission on Dietetic Registration.” BCSN also stated that the Certified Nutrition Specialist credential is listed by the U.S. Department of Labor, Bureau of Labor Statistics Occupational Outlook Handbook, Dietitians and Nutritionists, as an advanced nutrition credential.

Department Response--The Department acknowledges and respects the Certified Nutrition Specialists and their education and training, but the Department cannot include them in the Department’s rules for purposes of obtaining a dietitian license. The statute would have to be amended by the Texas Legislature to recognize and include nutrition specialists and to provide a pathway for licensure for nutrition specialists.  Nutrition specialists are not included in the current Dietitians statute, and the Department cannot add them by rule.  A person may become a licensed dietitian by following and completing the current dietitian licensing requirements under the Dietitians statute and rules.  Following is the Department’s responses to each of the issues raised in the three BCNS written comments and in the oral comments provided at the Dietitians Advisory Board.

Exam:  While the statute provides that the “examination prescribed by the department may be or may include an examination given by the Commission on Dietetic Registration or by a national or state testing service instead of an examination prepared by the department or the department’s designee” (Occ. Code §701.253(c)), the prescribed exam would need to be an exam for licensing or credentialing dietitians.  Dietitians are the only type of nutrition professional licensed under the Dietitians statute. It would not meet the current statutory requirements for the Department to accept another type of health care credentialing exam or another health care profession’s credentialing exam for purposes of obtaining a dietitian license.  The current Texas Dietitians statute does not include or recognize nutrition specialists nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms.  The Department cannot make these changes by rule.  This is the jurisdiction of the Texas Legislature. 

While BCNS stated that the Commission on Dietetic Registration (CDR) exam should not be the only recognized exam, the CDR exam was selected by the former licensing board and regulatory agency and has been the official licensing exam for dietitians in Texas since 1985. The Department continued with the CDR exam when the Dietitians program transferred from the Department of State Health Services (and the associated former licensing board, the Texas State Board of Examiners of Dietitians) on October 3, 2016. While the nutrition-related industry as a whole may have changed since the Texas Dietitians statute was enacted in 1983, to the Department’s knowledge, the CDR exam is the only dietitian examination available.

BCNS states that the Certified Nutrition Specialist exam should be allowed for purposes of obtaining a dietitian license, but the nutrition specialist exam is different from the dietitian exam.  CDR and BCNS are two separate credentialing agencies in the nutrition-related industry, and they offer two separate credentials using separate education, experience, and exam pathways.  

BCNS submitted a document comparing the content and areas of exam for the 2017 CDR Registered Dietitian exam and the BCNS Certified Nutrition Specialist exam. This document included a chart that “highlights key differences in focus” between the two exams.  For nutrition and food sciences, there is a 50% focus for nutritionists and a 25% focus for dietitians.  For clinical nutrition assessment, intervention, and monitoring, there is a 45% focus for nutritionists, and a 40% focus for dietitians.  For food systems and food program management, there is a 3% focus for nutritionists and a 35% focus for dietitians. The BCNS document states: “This comparison illustrates the differences in core competencies of the two professions, inclusive of academic and experience preparation. Although there is some overlap, there are signification differences. A significant part of dietitian preparation is in areas that are not fundamental to the nutritionist and vice versa.”  In its own document, BCNS recognizes that these are two separate professions with different areas of education, experience, and examination focus.  The Department cannot recognize or accept the BCNS Certified Nutrition Specialist exam for purposes of meeting the dietitian examination requirements. 

The Dietitian Advisory Board discussed the issue of the BCNS Certified Nutrition Specialist exam. The advisory board members stated that they did not know enough about the BCNS exam, including the areas or topics on the exam, how the exam was developed, and who developed the exam questions.  The advisory board members stated that they would need more information and research and a better understanding about the BCNS exam before they could evaluate it and even consider it or accept it as a substitution for the CDR exam.

Pre-Planned Professional Experience Program and Internship: The statute, Occ. Code §701.254(2), requires the applicant to have completed an internship or pre-planned professional experience program in “dietetics practice” under the supervision of a licensed dietitian or registered dietitian.  The adopted rules retain the pre-planned professional experience programs and internships in dietetics practice, but remove the outdated “individualized program” under the pre-planned professional experience program provisions that has not been used in the dietetics industry in many years. The adopted rules provide that the Department will accept pre-planned professional experience programs or internships that are approved or recognized by CDR.

While BCNS recommended retaining the individualized program to recognize BCNS-approved pre-planned professional experience programs and including internships in nutrition, the current Texas Dietitians statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms.  The Department cannot make these changes by rule. This is the jurisdiction of the Texas Legislature.

Curriculum/Courses: The Dietitian statute defines “dietetics”, and the statute and rules establish the education and training requirements for dietitian licensure. As such, the curriculum and course content need to cover dietetics. Changing the curriculum and course requirements for dietitians to allow a broader, more flexible curriculum, to make some required dietetic courses elective, and to include the nutrition specialists’ curriculum would change the scope of the education and training of a dietitian and would change what the practice of “dietetics” includes. While dietitians and nutrition specialists are both in the nutrition-related industry, they are two different credentials with two different education and training paths. The Department cannot change the curriculum and courses in the Dietitian rules to include other nutrition professions that are not included in the Dietitians statute.

The current Texas Dietitians statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms. The Department cannot make these changes by rule. This is the jurisdiction of the Texas Legislature.

Licensing and Recognition of Nutritionists: Regarding the licensure of nutritionists in 14 other states, a specific list of states was not referenced or provided with the BCNS comments.  Another individual commenter did provide a list of 14 states and the District of Columbia (DC) that license nutritionists (comment discussed later in this preamble). These 14 states and DC include nutritionists in their statutes (or municipal regulations for DC). Some of them have separate licenses for dietitians and nutritionists, and others have combined dietitian and nutritionist licenses.

While other states may license nutritionists, either separately or combined with the dietitians, the current Texas Dietitians statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms. The Department is only authorized to license Dietitians under the Texas statute, not other nutrition professionals. The Department cannot include, recognize, or license nutritionists by rule.

The Department notes that several bills addressing nutritionists have been introduced in past Texas Legislative Sessions, specifically during the 2005 Regular Session (H.B. 191, S.B. 989, H.B. 44 and S.B. 1209), the 2007 Regular Session (H.B. 1942, H.B. 2419, and S.B. 1168), and the 2009 Regular Session (H.B. 3528). These bills would have either included nutritionists in the Dietitians statute or created a separate nutritionist statute, but these bills did not pass. These legislative efforts demonstrate that the appropriate venue to make these changes is through the legislative process, not through the Department’s rulemaking process.

While the Centers for Medicare and Medicaid Services and the U.S. Department of Labor, Bureau of Labor Statistics may recognize dietitians and nutrition specialists for their purposes, the Texas Dietitians statute only recognizes and includes dietitians. 

Recommended Rule Changes and Mark-Up of Existing Rules:  BCNS provided marked up versions of the existing rules to reflect the BCNS recommended rule changes to the requirements regarding education, experience, examinations, license application and eligibility, and continuing education.  Even if the Department had the statutory authority to make these changes, which the Department does not, the Department also could not make the recommended changes from a technical and procedural stand-point.

The BCNS recommended changes are substantive changes that would expand the scope of the proposed rules as published and would affect additional persons not included in the proposed rules.  In addition, some of the recommended changes affected rules that were not open for public comment (§116.42 and §116.81) or rules that were open for public comment but did not include any proposed changes for certain rule subsections (§116.20(d) and §116.40(c)).  A state agency is limited in the changes that can be made to proposed rules at this point in the rulemaking process.  For substantive changes, the Department would have to withdraw the proposed rules and start the rulemaking process over or proceed with the proposed rules and include substantive changes in a future proposed rulemaking. Neither option is necessary regarding the BCNS recommended changes, since the Department does not have the statutory authority to make the BCNS recommended changes.

The Department did not make any changes to the proposed rules in response to the BCNS written and oral public comments.

Comment--One commenter, who is a Certified Nutrition Specialist and holds several types of degrees, stated that the commenter is prevented from becoming licensed to practice in Texas under the current restrictive dietetics licensure rules.  The commenter stated that it was not appropriate for Texas to select one private credential over other qualified education and training pathways.  The commenter requested that the CNS exam be added in addition to the current dietitians’ Registered Dietitian exam and that pre-professional experience continue to be allowed along with individual internship programs. In addition, the commenter wanted the course content requirements for licensure to be sufficiently flexible to broadly cover the many aspects for nutrition and not just dietetics. The commenter stated that the “purpose of dietetic licensing rules is not to restrict licensing to one degree or organization but to ensure that qualified individual with diverse background are able to promote the health and nutritional well-being of the citizens of the State.”

Department Response--The Department acknowledges and respects the Certified Nutrition Specialists and their education and training, but the Department cannot include them in the Department’s rules for purposes of obtaining a dietitian license. The statute would have to be amended by the Texas Legislature to recognize and include nutrition specialists and to provide a pathway for licensure for Certified Nutrition Specialists. Nutrition specialists are not included in the current Dietitians statute, and the Department cannot add them by rule.  A person may become a licensed dietitian by following and completing the current dietitian licensing requirements under the Dietitians statute and rules.

Regarding the commenter’s request to add the CNS exam in addition to the CDR exam to the Dietitian rules, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding exams. Regarding the comment about selecting one private credential over others, to the Department’s knowledge, the CDR exam is the only available dietitian licensing exam.  The Department is not selecting one entity’s dietitian exam over another entity’s dietitian exam. Regarding the commenter’s request to continue the pre-professional experience and the individual internship programs, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding pre-planned professional experience programs and internships. Regarding the commenter’s request to expand the course content to cover the many aspects of nutrition and not just dietetics, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding courses/curriculum.  

While the Department acknowledges that there are other professionals in the nutrition-related industry, the purpose and scope of the Dietitians statute and rules is to license dietitians, not other nutrition professionals.

The Department did not make any changes to the proposed rules in response to this public comment.  

Comment--One commenter, who is a Certified Nutrition Specialist, stated that without the ability to gain state licensure, the commenter is not offered positions in hospitals and other traditional medical workplaces and is unable to partner with insurance providers or be listed as part of preferred insurance networks. The commenter stated that having a state license would allow the practice to grow, be more competitive, and be financially consistent and the commenter would be able to serve insured clients.  The commenter recommended changing the current Dietitian rules to include naming other recognized exams such as CNS exam in addition to the dietitians Registered Dietitian exam; to include an individualized pre-planned professional practice experience in the licensing requirements; and to include the Board for Certification of Nutrition Specialist as an approved internship. In addition, the commenter suggested flexibility in course content to include therapeutic nutrition and not just dietetics, and offering food science and food service management as an elective.  The commenter requested that the Department “consider changing this legislation”.

Department Response--The Department acknowledges and respects the Certified Nutrition Specialists and their education and training, but the Department cannot include them in the Department’s rules for purposes of obtaining a dietitian license. The statute would have to be amended by the Legislature to recognize and include nutrition specialists and to provide a pathway for licensure for Certified Nutrition Specialists.  Nutrition specialists are not included in the current Dietitians statute, and the Department cannot add them by rule. A person may become a licensed dietitian by following and completing the current dietitian licensing requirements under the Dietitians statute and rules.

Regarding the commenter’s request to add the CNS exam in addition to the CDR exam to the Dietitian rules, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding exams. Regarding the commenter’s request to include the pre-planned profession practice experience and the BCNS-approved internship, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding pre-planned professional experience programs and internships. Regarding the commenter’s request for flexibility in the course content to include other course not just dietetics and to make some required dietitian courses elective, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding courses/curriculum. 

Regarding the issues involving employers or facilities requiring licensure for employment and the issues involving insurance and preferred providers, the Department cannot resolve those issues, since they are outside of the Department’s jurisdiction and statutory authority.

The Department did not make any changes to the proposed rules in response to this public comment.

Comment--One commenter, who is a Certified Nutrition Specialist and a Registered Pharmacist, submitted a comment letter “advocating for the state licensure for the CNS certification for nutrition.”  The commenter stated that only dietitians are authorized to become licensed in the state, and because licensure is frequently required for a provider’s service to be covered by insurance, this unnecessarily limits access to covered service for consumers. The commenter stated individuals who attain the CNS certification are “high caliber nutritional practitioners that receive rigorous academic training” and allowing CNS licensure would allow individuals to utilize health insurance for nutrition services which would lower individual health related cost and improve quality of life. In addition, licensure of CNSs and other highly qualified nutritionists will allow the commenter to advertise as a licensed provider and be recognized as such by other health care providers, employers, and consumers.

This commenter also provided oral public comments at the Dietitians Advisory Board meeting on May 3, 2018.  In the oral comments, the commenter highlighted the issues identified in the written comment letter.  The commenter recognized that licensure is not required to practice nutrition in Texas, but stated that there are serious practical implications to CNSs who cannot obtain licensure, including the inability to become enrolled in insurance plans and the inability to advertise as a “licensed practicing nutritionist” in Texas. The commenter stated that Texas needs expanded access to nutrition care.  The commenter requested that the rules be updated to reflect today’s workforce, to include other highly qualified professionals, and to allow CNSs to become licensed.    

Department Response--This response addresses the written and oral comments from this commenter.  The Department acknowledges and respects the Certified Nutrition Specialists and their education and training, but the Department cannot create state licensure for Certified Nutrition Specialists or other highly qualified nutritionists by rule or issue a nutritionist license by rule.  This is the jurisdiction of the Texas Legislature.  The statute would have to be amended by the Legislature to recognize and include nutrition specialists and to provide a pathway for licensure for Certified Nutrition Specialists or other qualified nutritionists as licensed nutritionists or licensed nutrition specialists.  Nutrition specialists are not included in the current Dietitians statute, and the Department cannot add them by rule. 

A nutrition specialist (or other person) may become a licensed dietitian by following and completing the current dietitian licensing requirements under the Dietitians statute and rules, but the nutrition specialist (or other person) would become a licensed dietitian at the end of the process not a licensed nutrition specialist. 

Regarding the issues involving insurance, the Department cannot resolve those issues, since they are outside of the Department’s jurisdiction and statutory authority.

The Department did not make any changes to the proposed rules in response to this individual’s written and oral public comments.

Comment--One commenter, who is a Certified Nutrition Specialist, submitted a comment “in reference to licensing in title Certified Nutrition Specialists.” The commenter stated that the commenter’s ability to grow the business is greatly hindered because the commenter is not licensed and cannot not accept insurance. The commenter stated that Texas licenses dietitians in name only, not practice.  The commenter stated that the Department of Labor’s website lists two certifications for nutritionists or dietitians – the Registered Dietitian and the Certified Nutrition Specialist.  In states where licensure is available for any member of the dietetics/nutrition profession, Medicare requires licensure to apply and accept Medicare clients. The commenter stated that the commenter could become a Licensed Dietitian-Nutritionist in other states, but the commenter has not. The commenter explained that to enroll as a provider in insurance in those states, insurance companies require that the commenter be licensed and enrolled as an insurance provider in the commenter’s home state.

The commenter recommended that if the Department allows one private credential such as CDR, then the Department should allow other private credentials such as the Certification of Nutrition Specialists. The commenter also recommended keeping the current language allowing individualized pre-professional practice experience and allowing other paths to licensure similar to various other states.

Department Response--The Department acknowledges and respects the Certified Nutrition Specialists and their education and training, but the Department cannot include them in the Department’s rules for purposes of obtaining a dietitian license and cannot create state licensure for Certified Nutrition Specialists as licensed nutritionists by rule.  This is the jurisdiction of the Texas Legislature.  The statute would have to be amended by the Legislature to recognize and include nutrition specialists and to provide a pathway for licensure for Certified Nutrition Specialists. Nutrition specialists are not included in the current Dietitians statute, and the Department cannot add them by rule. 

Regarding the commenter’s request to recognize CNS in addition to CDR, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding exams.  Regarding the commenter’s request to keep the current language allowing individualized pre-professional practice experience, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding pre-planned professional experience programs and internships. 

Regarding the commenter’s request to allow other paths to licensure similar to other states, a specific list of states that license nutritionists was not provided with this comment.  Another individual commenter did provide a list of 14 states and the District of Columbia (DC) that license nutritionists (comment discussed later in this preamble). These 14 states and DC include nutritionists in their statutes (or municipal regulations for DC). Some of them have separate licenses for dietitians and nutritionists, and others have combined dietitian and nutritionist licenses.

While other states may license nutritionists, either separately or combined with the dietitians, the Department cannot create other paths to licensure by rule.  This is the jurisdiction of the Texas Legislature. The current Texas Dietitians statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms. The Department is only authorized to license Dietitians under the Texas statute, not other nutrition professionals.  The Department cannot include, recognize, or license nutritionists by rule.

Regarding the “licensing in name only” issue, it is accurate that the Texas Dietitians statute is a title protection act, not a practice act, but it still only applies to dietitians. While the Department of Labor may recognize both dietitians and nutrition specialists for its purposes, the Texas Dietitians statute only recognizes and includes dietitians. 

Regarding the issues involving insurance companies and Medicare billing requirements, the Department cannot resolve those issues, since they are outside the Department’s jurisdiction and statutory authority.

The Department did not make any changes to the proposed rules in response to this comment.

Comment--One commenter, who is a Licensed Dietitian, requested an understanding of the intent for a dietitian duly and legally licensed under a state-approved individualized program in 1991. The commenter stated she is not seeking licensure because she was licensed under the rules in 1991.  This commenter also provided oral public comments at the Dietitians Advisory Board meeting on May 3, 2018. In the oral comments, the commenter highlighted the issues identified in the written comment letter and asked what would happen to her license and would she still be a licensed dietitian under the rule changes.

Department Response--This response addresses the written and oral comments from this commenter.  The proposed rules do not affect persons who are currently licensed as dietitians in Texas.  The only way a current licensed dietitian would be affected by the rule changes would be if the person allowed his or her license to expire beyond the late renewal period and the person would have to start the licensing process over again, and the individualized internship program that was available in 1991 would no longer be an option.  The removal of the provisional license requirements from the rules is a result of the removal of the provisional license from the statute pursuant to H.B. 4007.  The Department did not make any changes to the proposed rules in response to this individual’s written and oral public comments.  

Comment—One commenter, who is a Certified Nutrition Specialist and is licensed in Alaska and Maryland, stated that she is “negatively affected by the fact that Texas will not grant me a state license.”  The commenter recognized that she is not required to have a state license to practice in Texas; however, the commenter explained the difficulties of growing a business without being licensed.  The commenter explained that health insurance plans will not credential her as a provider since she does not have a Texas state license.  The commenter cannot accept health insurance from clients or partner with other providers.  It also impacts the commenter’s ability to provide telehealth nutrition services in other states since the commenter is not licensed in Texas.  The commenter stated that persons looking for a health care provider look for someone with a state license, and that for health insurance companies, a state license means a potential provider has met certain standards.  The commenter stated that having a state license in Texas is critical, and that she would like the opportunity to provide more services and have them covered through insurance.   

The commenter stated that many other states have a non-Registered Dietitian pathway to state recognition and more states are following each year.  The commenter provided the following list of 14 states along with the District of Columbia: Alaska, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Maryland, Minnesota, New York, North Dakota, Pennsylvania, South Dakota, and Washington. 

The commenter requested the Department revise “its current dietetics licensing law” to include a non-Registered Dietitian pathway as many other states have done by accepting the BCNS board exam and/or the CNS credential.  The nutrition industry had changed significantly and people in Texas should have the opportunity to have choice among licensed providers to provide nutrition services.  Other health care providers should also have a choice in who they refer clients to.  The commenter requested changes to the licensing rules to be more inclusive of other qualified nutrition professionals. 

Department Response--The Department acknowledges and respects the Certified Nutrition Specialists and their education and training, but the Department cannot include them in the Department’s rules for purposes of obtaining a dietitian license and cannot create state licensure for Certified Nutrition Specialists as licensed nutritionists by rule. In addition, the Department cannot revise the Dietitians licensing law (statute).   These changes are the jurisdiction of the Texas Legislature.  The statute would have to be amended by the Legislature to recognize and include nutrition specialists and to provide a pathway for licensure for Certified Nutrition Specialists. Nutrition specialists are not included in the current Dietitians statute, and the Department cannot add them by rule.   

Regarding the commenter’s request to accept the BCNS exam and/or the CNS credential, the Department’s response to this comment is the same as explained in the response to the BCNS comment regarding exams. 

Regarding the commenter’s request to allow other pathways to licensure similar to other states, the Department reviewed the statutes of the 14 states that were listed in this commenter’s letter along with the municipal regulations of the District of Columbia (DC).  These 14 states and DC include nutritionists in their statutes (or municipal regulations for DC).  Some of them have separate licenses for dietitians and nutritionists, and others have combined dietitian and nutritionist licenses.

While other states may license nutritionists, either separately or combined with the dietitians, the Department cannot create other paths to licensure by rule.  This is the jurisdiction of the Texas Legislature. The current Texas Dietitians statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms. The Department is only authorized to license Dietitians under the Texas statute, not other nutrition professionals. The Department cannot include or license nutritionists by rule.

Regarding the issues involving insurance companies’ provider and billing requirements, the Department cannot resolve those issues, since they are outside the Department’s jurisdiction and statutory authority.

The Department did not make any changes to the proposed rules in response to this public comment.

Other Changes: The Department is making technical changes to §116.50 to remove the word “rule” from §116.50(b)(3)(A) and the word “rules” from §116.50(b)(3)(B).

LATE PUBLIC COMMENT

The Board for Certification of Nutrition Specialists (BCNS) submitted a comment letter to the Commission on May 16, 2018.  This comment was submitted after the public comment period closed on April 16, 2018, and after the Dietitians Advisory Board meeting on May 3, 2018.  It is technically a late comment, but the Department believes a response is necessary to address some of the issues raised in this public comment. 

Comment—The BCNS comment letter dated May 16, 2018, included several concerns.  First, BCNS reiterated the same issues raised in its previous three written comment letters and the oral public comment made at the Dietitians Advisory Board meeting on May 3, 2018. 

Second, BCNS disagreed with the Department staff’s interpretations and recommended responses to the public comments that were provided during the Dietitians Advisory Board meeting.  In its letter, BCNS included selected excerpts of some of TDLR’s recommended responses to some of the public comments during the Advisory Board meeting.  BCNS then provided feedback and comments on the Department’s recommended responses to the BCNS comments and to other individuals’ comments.  BCNS stated that Department staff did not understand BCNS’ requested changes. BCNS stated that it wants a pathway for nutrition specialists to become Licensed Dietitians using the BCNS nutrition specialist exam, education, and experience. BCNS states that it is not looking for Certified Nutrition Specialists to become Licensed Nutritionists or Licensed Nutrition Specialists. BCNS requested the Commission hold off on adopting the proposed rules and send the proposed rules back to the Department staff to reconsider BCNS’ comments.

Third, BCNS reiterated its position that dietitians and nutritionists and the terms “dietetics” and “nutrition” are functionally equivalent for purposes of regulation and licensure.   BCSN asserts that nutritionists and their requirements for certification could be added to the Dietitian rules, because dietitians and nutritionists are functionally equivalent.

Fourth, BCNS stated that Department staff provided no reasoning during the May 3, 2018, Advisory Board meeting regarding why the individualized program was being removed. 

Department Response—The Department’s response to each BCNS concern is as follows.

Response to BCNS’ First Concern
In response to the issues that were previously raised by BCNS in its three written comment letters submitted during the comment period and in its oral public comments made at the Dietitians Advisory Board meeting on May 3, 2018, the Department reiterates its responses provided to the BCNS written and oral comments. The Department’s responses to these issues are the same as the Department’s responses found earlier in this preamble.     

Response to BCNS’ Second Concern
In response to the comment that Department staff do not understand the BCNS requested changes, with all due respect, the Department staff do understand the BCNS requested changes.  There were two types of comments that were submitted by Certified Nutrition Specialists in response to the Dietitian proposed rules.  The Department staff addressed both types of comments in the responses.

The first type of comments, which included BCNS and several individual commenters, wanted a pathway for nutrition specialists to become licensed dietitians using the nutrition specialists’ exam, education, and experience. These commenters wanted to add the BCNS exam, to retain the individualized program, and to include the nutrition specialist education and areas of study/coursework in the Dietitian rules, for purposes of obtaining a dietitian license.  BCNS provided marked-up versions of the current rules to show how it wanted the Dietitian rules amended to include the nutrition specialists’ requirements.

The Department has summarized these public comments and has addressed the specific issues regarding the exam, the experience, and the education in the Department’s full responses to these comments in this adoption notice.  In the responses, the Department explains why the Department cannot include nutritionists, their exam, their education, or their experience in the Dietitian rules for purposes of obtaining a dietitian license. 

The bottom line is that the current Texas Dietitians statute only includes and recognizes dietitians.  The statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms. The Department does not have the statutory authority to create a pathway for licensure for Certified Nutrition Specialists as licensed dietitians by rule. 

The second type of comments wanted state licensure for nutritionists or Certified Nutrition Specialists and/or wanted a pathway for licensure like other states that license nutritionists.  The Department understood that these commenters wanted to be licensed nutritionists, not licensed dietitians.  Several commenters (including BCNS) stated that other states license nutritionists. One of the individual commenters provided a list of 14 states and the District of Columbia (DC) that recognize nutritionists. These 14 states and DC include nutritionists in their state statutes (or municipal regulations for DC).  Some of them have separate dietitian and nutritionist licenses, and others have combined dietitian and nutritionist licenses.

The Department has summarized these public comments and has addressed the licensure issues in the Department’s full responses to these comments in this adoption notice. In the responses, the Department explains that while other states may license nutritionists, either separately or in combination with the dietitians, Texas does not. 

The bottom line is that the current Texas Dietitians statute only includes and recognizes dietitians.  The statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms. The Department does not have the statutory authority to create a pathway for licensure for Certified Nutrition Specialists as licensed nutritionists by rule or to create a new license type by rule.

Response to BCNS’ Third Concern
In response to the comment that dietitians and nutritionists are functionally equivalent for purposes of regulation and licensure, the Texas Dietitians statute does not make them functionally equivalent. While the nutrition-related industry as a whole may have changed since 1983, when the Dietitian statute was enacted, the statute has not changed.   The current Texas Dietitians statute does not include or recognize nutrition specialists, nor does it make dietitians and nutrition specialists interchangeable or make “dietetics” and “nutrition” equivalent terms.   Under the statute, the Department is only authorized to license dietitians in this state, not other health care professions. 

Several bills addressing nutritionists were introduced in past Texas Legislative Sessions, specifically during the 2005 Regular Session (H.B. 191, S.B. 989, H.B. 44 and S.B. 1209), the 2007 Regular Session (H.B. 1942, H.B. 2419, and S.B. 1168), and the 2009 Regular Session (H.B. 3528).  These bills would have either included nutritionists in the Dietitians licensing statute or created a separate nutritionist licensing statute, but these bills did not pass.  

To date, the Texas Legislature has not determined that “dietetics” and “nutrition” are functionally equivalent for purposes of statutory regulation and licensure.  As such, the Department cannot make them functionally equivalent by rule.

Response to BCNS’ Fourth Concern
Regarding the comment that no reasoning was provided during the May 3, 2018, Advisory Board meeting regarding why the individualized program was being removed, the Department provided the reasons for eliminating the individualized program during the February 27, 2018, Advisory Board meeting and in the preamble of the proposed rules published in the Texas Register and posted on the Department’s website.

The reasons and explanations regarding the changes to the preplanned professional experience program and internship provision, including the individualized program, were discussed at the Dietitians Advisory Board meeting on February 27, 2018.  The change was being made to eliminate unnecessary and outdated rules regarding the required preplanned professional experience programs and internships to reflect current Dietitians industry practice.  The Advisory Board agreed with the proposed changes and recommended that the proposed rules be published for public comment.  The full detailed reasons and explanations were included in the preamble of the proposed rules that were published in the Texas Register on March 16, 2018, as required by the Administrative Procedure Act (APA), Government Code Chapter 2001. The preamble and the proposed rules were also posted on the Department’s website for review. 

The reasons and explanations for removing the individualized program, summaries of the public comments wanting to keep the individualized program, and the Department’s full responses to those comments are included in this adoption notice, as required by the APA.

ADVISORY BOARD DISCUSSIONS AND RECOMMENDATIONS

The Department staff presented the draft proposed rules to the Dietitians Advisory Board (Advisory Board) at its meeting on February 27, 2018.  The Advisory Board discussed the draft proposed rules and did not make any changes.  The Advisory Board recommended that the draft proposed rules be published in the Texas Register as proposed rules for public comment.

The Advisory Board met again on May 3, 2018, to discuss the proposed rules and the public comments received. The Advisory Board members had copies of all the written public comments received during the comment period.  In addition, two of the individuals, who submitted written public comments, and the BCNS provided oral public comments at the Advisory Board meeting.  The Advisory Board recommended adopting the proposed rules with the technical changes recommended by the Department to §116.50.

COMMISSION MEETING AND DECISION

The Commission met on May 24, 2018, to discuss the proposed rules and written and oral public comments received.  The Commission had copies of all the written public comments submitted to the Department and to the Commission, summaries of the written and oral comments, and the Department’s recommended responses to the public comments.  The Department staff presented the proposed rules and highlighted a few key points, including those in the Department’s response to the May 16, 2018, BCNS comment letter (Department response is above in this preamble). The key points are summarized below. 

First, the Department staff do understand the BCNS requested changes. There were two types of comments submitted by the Certified Nutrition Specialists in response to the Dietitian proposed rules: (1) those who wanted a pathway to be licensed dietitians by using the BCNS exam, education, and experience; and (2) those who wanted a pathway to be licensed nutritionists.  The Department responded to both types of comments. The bottom line is the same for both—the Texas Dietitians statute does not recognize or include nutritionists, so the Department does not have the statutory authority to include, recognize, or license Certified Nutrition Specialists by rule. 

Second, while the nutrition-related industry as a whole may have changed since the Dietitians statute was enacted in 1983, the statute has not.  “Dietetics” and “nutrition” are not equivalent under the Texas Dietitians statute.  Legislative efforts in 2005, 2007, and 2009 that would have included nutritionists in the Dietitian licensing statute or created a separate nutritionist licensing statute did not pass. 

Third, an individual commenter provided a list of 14 states that license nutritionists.  The Department reviewed the statutes of these 14 states and all of them include nutritionists in their statutes, which is different from Texas.  The Texas Dietitian statute does not include or recognize nutritionists, so the Department cannot include or recognize them in rule. 

Finally, even if the Department had the statutory authority to make the changes recommended by BCNS and other individual commenters to add references to BCNS and add the BCNS exam, education, and experience to the Dietitian rules, the Department could not do so from a technical and procedural standpoint.  The BCNS requested changes were substantive changes that go beyond the proposed rules as published and could not be made at this point in the process for this rulemaking.

A representative from the Board for Certification of Nutrition Specialists (BCNS) appeared before the Commission and made an oral public comment, which is summarized below.

Comment--The BCNS representative reiterated the issues presented in the BCNS May 16, 2018, comment letter (summarized above in this preamble).  BCNS requested that the proposed rules be placed on hold for more careful consideration of their requested changes. The BCNS representative stated that the Department staff do not understand BCNS’ requested changes to the rules.  BCNS stated that Certified Nutrition Specialists want to become licensed dietitians and that their request is being denied based on a misreading or misinterpretation of their request. BCNS stated that “dietitian” and “nutritionist” and “dietetics” and “nutrition” are interchangeable. Regarding the past Texas legislation to address nutritionists, the BCNS representative stated that those bills were not proposed by BCNS and BCNS was not part of those efforts.  The BCNS representative stated that just because there were statutory efforts in the past does not mean that changes could not be made by rule.  The BCNS representative stated that of the 14 states that authorize nutritionists for licensure, Kansas authorizes Certified Nutrition Specialists to become licensed dietitians. The BCNS representative stated that there may or may not be the word “nutritionist” in the title, but there is a broad understanding in the industry that the terms are very interchangeable. 

Department Response—Regarding the issues that were reiterated from the BCNS May 16, 2018, letter, the Department’s responses to this oral public comment are the same as the Department’s responses to the May 16, 2018, written comment letter (see above in this preamble). Regarding the comment about the past statutory efforts, these legislative efforts to include, recognize, and license nutritionists in statute demonstrates that the appropriate venue to make these changes is through the legislative process, not through the Department’s rulemaking process.  

Regarding the comment that Kansas licenses nutritionists, this was the first time BCNS provided or referenced any specific states in its written or oral public comments.  Kansas was not included in the list of 14 states provided by another individual commenter.  As a follow-up, the Department reviewed the Kansas “Dietitians Licensing Act” and the Kansas “Rules and Regulations for Licensure of Kansas Dietitians.”  It is not apparent in the review whether the Kansas Dietitians statute, rules, and regulations include or recognize nutritionists.  Obviously, the Department defers to the State of Kansas and its licensing agency on the interpretation and administration of the Kansas Dietitians statute, rules, and regulations and whether nutritionists are included or recognized or are eligible to become licensed dietitians.  The Department’s interpretation of the Texas Dietitians statute, however, remains the same.  The Texas Dietitians statute does not include or recognize nutritionists.

At the May 24, 2018, Commission meeting, the Commissioners asked questions of Department staff, who provided the Department’s interpretation regarding its statutory authority under the Dietitians statute, clarified the scope of the proposed rulemaking, and explained the technical and procedural limitations to adding new provisions into the proposed rulemaking. The Commissioners also asked questions of the BCNS representative about the legislation from 2005, 2007, and 2009 regarding nutritionists and about introducing legislation in the future to address the BCNS concerns. The BCNS representative stated that she briefly reviewed those bills and was not as familiar with them since they were not BCNS bills, but that the Dietitians statute does not require a licensed dietitian to be someone credentialed by CDR. The BCNS representative had no comment on whether BCNS would introduce legislation in the future.

The Commissioners discussed that there needed to be a statutory change to make the changes requested by BCNS and the Certified Nutrition Specialists.  It appeared that legislative efforts in the past had failed, and this was an attempt to “back-door” the changes through rule.  The Commissioners stated that the Department should not make those types of changes by rule.  If the Legislature did not find that it was necessary to license nutritionists in the past, the Department would not take that on to increase the scope of practice.  In addition, the Commissioners stated that the BCNS requested changes were beyond the scope of the proposed rulemaking as published and could not be made as part of this rulemaking. The Commission Chair requested that the Executive Office and General Counsel’s Office meet with BCNS to begin discussions to see if there is a way for the Department to assist.  These discussions may also include the dietitians.

The Commission adopted the proposed rules with two technical changes to §116.50, as recommended by the Dietitians Advisory Board and the Department.

STATUTORY AUTHORITY

The amendments are adopted under Texas Occupations Code, Chapters 51 and 701, which authorize the Commission, the Department’s governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the adoption are those set forth in Texas Occupations Code, Chapters 51, 701, and Texas Insurance Code §1358.055.  No other statutes, articles, or codes are affected by the adoption.

SUBCHAPTER A. GENERAL PROVISIONS

§116.2. Definitions.  

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Academy--The Academy of Nutrition and Dietetics, which is the national professional association of dietitians.

(2) Accredited facilities--Facilities accredited by the Joint Commission on Accreditation of Health Care Organizations.

(3) Act--The Licensed Dietitian Act, Texas Occupations Code, Chapter 701.

(4) Advisory Board--Dietitians Advisory Board.

(5) Certified facilities, agencies, or organizations--Facilities, agencies, or organizations certified by federal agencies.

(6) Commission--The Texas Commission of Licensing and Regulation.

(7) Commission on Dietetic Registration (CDR)--The Commission on Dietetic Registration, the credentialing agency for the Academy of Nutrition and Dietetics, is the agency that evaluates credentials, administers proficiency examinations, and issues certificates of registration to qualifying dietitians, and is a member of the National Commission on Health Certifying Agencies. The Commission on Dietetic Registration also approves continuing education activities.

(8) CPE--Continuing Professional Experience.

(9) Department--The Texas Department of Licensing and Regulation.

(10) Dietitian--A person licensed under the Act.

(11) Dietetics--The professional discipline of applying and integrating scientific principles of food, nutrition, biochemistry, physiology, management, and behavioral and social sciences under different health, social, cultural, physical, psychological, and economic conditions to the proper nourishment, care, and education of individuals or groups throughout the life cycle to achieve and maintain the health of people. The term includes, without limitation, the development, management, and provision of nutrition services.

(12) Executive director--The executive director of the department.

(13) Licensed dietitian (LD)--A person licensed under the Act.

(14) Licensed facilities, agencies, or organizations--Facilities, agencies, or organizations licensed by state agencies.

(15) Licensee--A person who holds a current license as a dietitian issued under the Act.

(16) Nutrition assessment--The evaluation of the nutritional needs of individuals and groups based on appropriate biochemical, anthropometric, physical, and dietary data to determine nutrient needs and recommend appropriate nutritional intake including enteral and parenteral nutrition. Nutrition assessment is an important component of medical nutrition therapy.

(17) Nutrition counseling--Advising and assisting individuals or groups on appropriate nutritional intake by integrating information from the nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status. Nutrition counseling is an important component of medical nutrition therapy.

(18) Nutrition services--This term means:

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

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

(C) providing nutrition counseling in health and disease;

(D) developing, implementing, and managing nutrition care systems; or

(E) evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition care services.

(19) Registered dietitian (RD)--A person who is currently registered as a dietitian by the Commission on Dietetic Registration.

SUBCHAPTER C. EDUCATION REQUIREMENTS

§116.20. Degrees and Course Work.  

(a) The department shall accept as meeting licensure requirements baccalaureate and post-baccalaureate degrees and course work received from United States colleges or universities which held accreditation, at the time the degree was conferred or the course work was taken, from accepted regional educational accrediting associations as reported by the American Association of Collegiate Registrars and Admissions Officers.

(b) Degrees and course work received at foreign colleges and universities shall be acceptable only if such course work could be counted as transfer credit from accredited colleges or universities as reported by the American Association of Collegiate Registrars and Admissions Officers.

(c) Persons applying for licensure must possess a baccalaureate or post-baccalaureate degree with a major course of study in human nutrition, food and nutrition, nutrition education dietetics, or food systems management.

(d) In place of the requirements in subsection (c), a person may have an equivalent major course of study defined as either:

(1) a baccalaureate or post-baccalaureate degree or course work including a minimum of thirty (30) semester hours in the following areas:

(A) twelve (12) semester hours must be specifically designed to train a person to apply and integrate scientific principles of human nutrition under different health, social, cultural, physical, psychological, and economic conditions to the proper nourishment, care, and education of individuals or groups throughout the life cycle;

(B) six (6) semester hours must be from human nutrition, food and nutrition, dietetics, or food systems management; and

(C) twelve (12) semester hours must be from four of the following three-hour courses:

(i) upper-division human nutrition related to disease;

(ii) upper-division food service systems management;

(iii) bio- or physiological chemistry, or advanced normal human nutrition;

(iv) food science; or

(v) upper-division nutrition education; or

(2) a baccalaureate or post-baccalaureate degree, including a major course of study meeting the minimum academic requirements to qualify for examination by the Commission on Dietetic Registration.

(e) The relevance to licensure of academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs or bulletins or by other means acceptable to the department.

(f) In the event that an academic deficiency is present, an applicant may have one year in which to complete the additional course work acceptable to the department before the application will be voided and the applicant will be required to reapply and to pay additional application fees.

(g) The semester hours may be part of a degree plan or in addition to a degree

SUBCHAPTER D. EXPERIENCE REQUIREMENTS

§116.30. Preplanned Professional Experience Programs and Internships.

(a) Applicants for examination must have satisfactorily completed an approved preplanned professional experience program or internship in dietetics practice of not less than 900 hours under the supervision of a licensed dietitian or a registered dietitian

(b) The department approves, and accepts as meeting the licensure requirements, a preplanned professional experience program or an internship as prescribed under subsections (c) and (d).

(c) A preplanned professional experience program shall be a preplanned professional experience program approved or recognized by the Commission on Dietetic Registration.

(d) An internship shall be a dietetic internship, a coordinated undergraduate program in dietetics, or a professional experience program in dietetics approved or recognized by the Commission on Dietetic Registration.

(e) To show proof of completing the preplanned professional experience program or internship, an applicant at the time of application must submit a photocopy of the registration card issued by the Commission on Dietetic Registration. The registration card must be in active status. The applicant's preplanned professional experience program or internship accepted for registration by the Commission on Dietetic Registration shall be acceptable for licensure by the department.  

SUBCHAPTER E. EXAMINATION REQUIREMENTS

§116.40. License Examination Requirements. 

(a) Except as provided by subsection (c), an applicant must pass a license examination to qualify for a dietitian license under this chapter.

(b) Pursuant to Texas Occupations Code §701.253, the examination required for licensure as a Licensed Dietitian is the examination given by the Commission on Dietetic Registration.

(c) The department shall waive the examination requirement for an applicant who, at the time of application, is a dietitian registered by the Commission on Dietetic Registration and whose registration is in active status.

(d) An applicant must meet the education and experience requirements under Texas Occupations Code §701.254 to qualify to take the licensing examination.

§116.44. Texas Jurisprudence Examination  

(a) An applicant for licensure as a licensed dietitian shall pass the Texas Jurisprudence Examination prescribed by the department. 

(b) The Texas Jurisprudence Examination is separate from the license examination under §116.40 and §116.42. The Texas Jurisprudence Examination tests the applicant’s knowledge of the statute, rules and any other applicable law affecting the applicant’s dietetics practice.

(c) The applicant must register online and pay the Texas Jurisprudence Examination fee to the third-party provider. The applicant does not need to qualify through the department to take the Texas Jurisprudence Examination.

(d) The applicant must successfully complete the Texas Jurisprudence Examination and submit a certificate of completion prior to receiving a license as a licensed dietitian.

SUBCHAPTER F. LICENSED DIETITIANS

§116.50. Licensed Dietitians--Application and Eligibility Requirements. 

(a) Unless otherwise indicated, an applicant must submit all required information and documentation of credentials on official department-approved forms.

(b) An applicant must submit the following required documentation:

(1) a completed application on a department-approved form;

(2) official transcript(s) of all relevant college work showing successful completion of the education requirements under Texas Occupations Code §701.254(1);

(3) copy of the registration card issued by the Commission on Dietetic Registration as proof that the applicant:

(A) successfully completed the preplanned professional experience program or internship requirements under Texas Occupations Code §701.254(2) and §116.30; and

(B) passed the examination prescribed under Texas Occupations Code §701.253 and §§116.40 and 116.42;

(4) the form providing information regarding other state licenses, certificates or registrations that an applicant holds or held, if applicable;

(5) proof of successfully completing the Texas Jurisprudence Examination under Texas Occupations Code §701.2575 and rule §116.44; and

(6) the fee required under §116.110.

(c) The applicant must successfully pass a criminal history background check.

(d) The applicant must meet the fitness requirements under §116.51.

(e) Pursuant to Texas Occupations Code §701.151, the commission or the department shall deny the application for violation of the Act, this chapter, or a provision of the Code of Ethics in §116.105.

SUBCHAPTER I. CONTINUING EDUCATION

§116.80.  Continuing Education--General Requirements and Hours.

(a) Licensed dietitians are required to take continuing education.

(b) A licensed dietitian must complete a minimum of twelve (12) continuing education hours during each two-year licensing period.

(c) The hours must have been completed prior to the date of expiration of the license.

§116.83. Continuing Education--Failure to Complete.  

(a) A person who fails to complete continuing education requirements for renewal holds an expired license and may not use the title “licensed dietitian”.  

(b) A person may renew late after all the continuing education requirements have been met.

SUBCHAPTER J. RESPONSIBILITIES OF THE COMMISSION AND THE DEPARTMENT

§116.91. Rules. 

(a) Pursuant to the authority under Texas Occupations Code §51.203, the commission shall adopt rules necessary to implement the Dietitians program. Pursuant to 16 Texas Administrative Code (TAC) §60.22, the department is authorized to propose rules.

(b) The commission has adopted rules governing changes to the standards of practice rules pursuant to §51.2031. These rules are located at 16 TAC Chapter 100.

SUBCHAPTER K. RESPONSIBILITIES OF THE LICENSEE AND CODE OF ETHICS

§116.100.  Display of License.   

(a) This section applies to licensed dietitians.

(b) The license certificate must be displayed in an appropriate and public manner as follows.

(1) The license certificate shall be displayed in the primary office or place of employment of the licensee.

(2) In the absence of a primary office or place of employment, or when the licensee is employed at multiple locations, the licensee shall carry a current identification card.

(c) Neither the licensee nor anyone else shall display a photocopy of a license certificate or carry a photocopy of an identification card in lieu of the original document. A file copy shall be clearly marked as a copy across the face of the document.

(d) Neither the licensee nor anyone else shall make any alteration on a license certificate or identification card.

(e) Pursuant to Texas Occupations Code §701.351(b), any certificate or identification card issued by the department remains the property of the department and must be surrendered to the department on demand.

§116.101. Changes of Name or Address.  

(a) This section applies to licensed dietitians.

(b) The licensee shall notify the department of changes in name or mailing address within thirty (30) days of such change(s) on a department-approved form or using a department-approved method.

(c) Notification of name changes must be mailed or faxed to the department and shall include a copy of a marriage certificate, court decree evidencing such change, or a social security card reflecting the new name. The licensee shall submit the duplicate/replacement fee required under §116.110.

§116.103. Disclosure.  

A licensee shall notify each client of the name, mailing address, telephone number, and website address of the department for the purpose of directing complaints to the department by providing notification:

(1) on each written contract for services of a licensee;

(2) on a sign prominently displayed in the primary place of business of each licensee; or

(3) in a bill for service provided by a licensee to a client or third party.

§116.104. Unlawful, False, Misleading, or Deceptive Advertising.  

(a) A licensee shall use factual information to inform the public and colleagues of his/her services. A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification.

(b) False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

(4) contains a testimonial;

(5) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

(6) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

(7) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

(8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or

(9) advertises or represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.

(c) As used in this section, a “health care professional” includes a licensed dietitian or any other person licensed, certified, or registered by the state in a health-related profession.

§116.105. Code of Ethics.

(a) Professional representation and responsibilities.

(1) A licensee shall conduct himself/herself with honesty, integrity and fairness.

(2) A licensee shall not misrepresent any professional qualifications or credentials. A licensee shall not make any false or misleading claims about the efficacy of any nutrition services or dietary supplements.

(3) A licensee shall not permit the use of his/her name for the purpose of certifying that nutrition services have been rendered unless that licensee has provided or supervised the provision of those services.

(4) A licensee shall not promote or endorse products in a manner that is false or misleading.

(5) A licensee shall disclose to a client, a person supervised by the licensee, or an associate any personal gain or profit from any item, procedure, or service used by the licensee with the client, supervisee, or associate.

(6) A licensee shall maintain knowledge and skills required for professional competence. A licensee shall provide nutrition services based on scientific principles and current information. A licensee shall present substantiated information and interpret controversial information without bias.

(7) A licensee shall not abuse alcohol or drugs in any manner which detrimentally affects the provision of nutrition services.

(8) A licensee shall comply with the provisions of the Texas Controlled Substances Act, the Health and Safety Code, Chapter 481 and Chapter 483, relating to dangerous drugs; and any rules of the department or the Texas State Board of Pharmacy implementing those chapters.

(9) A licensee shall have the responsibility of reporting alleged misrepresentations or violations of commission rules to the department.

(10) A licensee shall comply with any order relating to the licensee which is issued by the commission or the executive director.

(11) A licensee shall not aid or abet the practice or misrepresentation of an unlicensed person when that person is required to have a license under the Act.

(12) A licensee shall not make any false, misleading, or deceptive claims in any advertisement, announcement, or presentation relating to the services of the licensee, any person supervised by the licensee or any dietary supplement.

(13) A licensee shall conform to generally accepted principles and standards of dietetic practice which are those generally recognized by the profession as appropriate for the situation presented, including those promulgated or interpreted by or under the Academy or Commission on Dietetic Registration, and other professional or governmental bodies. A licensee shall recognize and exercise professional judgment within the limits of his/her qualifications and collaborate with others, seek counsel, or make referrals as appropriate.

(14) A licensee shall not interfere with an investigation or disciplinary proceeding by willful misrepresentation of facts to the department or its authorized representative or by the use of threats or harassment against any person.

(15) A licensee shall report information if required by the following statutes:

(A) Texas Family Code, Chapter 261, concerning abuse or neglect of minors; or

(B) Texas Human Resources Code, Chapter 48, concerning abuse, neglect, or exploitation of elderly or disabled persons.

(b) Professional relationships.

(1) A licensee shall make known to a prospective client the important aspects of the professional relationship including fees and arrangements for payment which might affect the client's decision to enter into the relationship. A licensee shall bill a client or a third party in the manner agreed to by the licensee and in accordance with state and federal law.

(2) A licensee shall not receive or give a commission or rebate or any other form of remuneration for the referral of clients for professional services.

(3) A licensee shall disclose to clients any interest in commercial enterprises which the licensee promotes for the purpose of personal gain or profit.

(4) A licensee shall take reasonable action to inform a client's physician and any appropriate allied health care provider in cases where a client's nutritional status indicates a change in medical status.

(5) A licensee shall provide nutrition services without discrimination based on race, creed, gender, religion, national origin, or age.

(6) A licensee shall not violate any provision of any federal or state statute relating to confidentiality of client communication and/or records. A licensee shall protect confidential information and make full disclosure about any limitations on his/her ability to guarantee full confidentiality.

(7) A licensee shall not engage in sexual contact with a client. The term "sexual contact" means any type of sexual behavior described in the Texas Penal Code, §21.01, and includes sexual intercourse. A licensee shall not engage in sexual harassment in connection with professional practice.

(8) A licensee shall terminate a professional relationship when it is reasonably clear that the client is not benefiting from the services provided.

(9) A licensee shall not provide services to a client or the public if by reason of any mental or physical condition of the licensee, the services cannot be provided with reasonable skill or safety to the client or the public.

(10) A licensee shall not provide any services which result in mental or physical injury to a client or which create an unreasonable risk that the client may be mentally or physically harmed.

(11) A licensee shall provide sufficient information to enable clients and others to make their own informed decision regarding nutritional services.

(12) A licensee shall be alert to situations that might cause a conflict of interest or have the appearance of a conflict. A licensee shall make full disclosure when a real or potential conflict of interest arises.

(c) On the written request of a client, a client's guardian, or a client's parent, if the client is a minor, a licensee shall provide, in plain language, a written explanation of the charges for client nutrition services previously made on a bill or statement for the client. This requirement applies even if the charges are to be paid by a third party.

(d) A licensee may not persistently or flagrantly overcharge or overtreat a client.

(e)  A licensee shall be subject to disciplinary action by the commission or department if under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Article 56.31, the licensee is issued a public letter of reprimand, is assessed a civil penalty by a court, or has been convicted and ordered to pay court costs under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Chapter 56, Subchapter B, Article 56.55.

(f)  A violation of any provision of this section by a person who is an applicant or who subsequently applies for a license (even though the person was not a licensee at the time of the violation) may be a basis for disapproval of the application.

SUBCHAPTER L. FEES

§116.110. Fees.

(a) All fees paid to the department are nonrefundable.

(b) Licensed Dietitian Fees:

(1) Initial application fee (includes two-year initial license)--$108; and

(2) Renewal application fee (for two-year license)--$90.  

(c) A duplicate/replacement fee for licenses issued under this chapter is $25.

(d) Late renewal fees for licenses issued under this chapter are provided under §60.83 of this title (relating to Late Renewal Fees).

(e) A dishonored/returned check or payment fee is the fee prescribed under §60.82 of this title (relating to Dishonored Payment Device).

(f) The fee for a criminal history evaluation letter is the fee prescribed under §60.42 of this title (relating to Criminal History Evaluation Letters).

SUBCHAPTER M. COMPLAINTS

§116.120. Complaints Regarding Standard of Care. 

The commission has adopted rules related to handling complaints regarding standard of care pursuant to Texas Occupations Code §51.2031. These rules are located at 16 Texas Administrative Code Chapter 100.

SUBCHAPTER N. ENFORCEMENT PROVISIONS

§116.130. Administrative Penalties and Sanctions.  

If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or 701, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 51 and 701, as applicable, and any associated rules.

SUBCHAPTER O. THE DIETETIC PROFESSION

§116.142. Licensed Dietitians Providing Diabetes Self-Management Training.

(a) This section implements the Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055.

(b) Diabetes self-management training covers the following training:

(1) training provided to a qualified enrollee after the initial diagnosis of diabetes in the care and management of that condition, including nutrition counseling and proper use of diabetes equipment and supplies;

(2) additional training authorized on the diagnosis of a physician or other health care practitioner of a significant change in the qualified enrollee’s symptoms or condition that requires changes in the qualified enrollee’s self-management regimen; and

(3) periodic or episodic continuing education training when prescribed by an appropriate health care practitioner as warranted by the development of new techniques and treatments for diabetes.

(c) A licensed dietitian who provides diabetes self-management training as a member of a multi-disciplinary team must meet the following requirements: 

(1) Prior to beginning to provide diabetes self-management training as member of a multi-disciplinary team under Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055(c)(2), a licensed dietitian must complete at least six (6) hours of continuing education in diabetes-specific or diabetes-related topics within the previous two years.

(2) Thereafter, to remain qualified to continue to provide such services, a licensed dietitian shall complete at least six (6) hours of continuing education biennially in diabetes-specific or diabetes-related topics.

(3) A licensed dietitian who is not a Certified Diabetes Educator and who is providing diabetes self-management training as a member of a multi-disciplinary team under Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055(c)(2), shall confine his or her professional services to nutrition education and/or counseling, lifestyle modifications, the application of self-management skills, reinforcing diabetes self-management training, and other acts within the scope of his or her professional education and training which are conducted under the supervision of the coordinator of the multi-disciplinary team.

(d) A licensed dietitian who provides the nutrition component of diabetes self-management training must meet the following requirements: 

(1) Prior to beginning to provide the nutrition component of diabetes self-management training under Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.055(c)(4), a licensed dietitian must complete at least six (6) hours of continuing education in diabetes-specific or diabetes-related topics within the previous two years.

(2) Thereafter, to remain qualified to continue to provide such services, a licensed dietitian shall show proof to the department completion of at least six (6) hours of continuing education biennially in diabetes-specific or diabetes-related topics.

(e) The continuing education completed under this section shall meet the requirements described in Subchapter I, Continuing Education. The continuing education completed under this section may be part of the credits required for renewal of a license.

(f) Upon written request by the department, the licensed dietitian shall submit to the department proof of completion of the continuing education completed under this section. The licensed dietitian shall submit the proof of completion in a manner and a timeframe acceptable to the department.

(g) This section does not apply to a licensed dietitian who is a diabetes educator certified by the National Certification Board for Diabetes Educators.

(h) This section does not pertain to or restrict a licensed dietitian who does not qualify under this section from providing the nutrition component of diabetes self-management training within the scope of the license issued by the department, to a person:

(1) who is not a qualified enrollee as defined in the Insurance Code, Title 8, Subtitle E, Chapter 1358, §1358.051;

(2) who does not intend to seek payment for or reimbursement for diabetes self-management training; or

(3) without the written order of a licensed physician or other healthcare practitioner.

SUBCHAPTER E. EXAMINATION REQUIREMENTS
[§116.41 License Examination Qualifications]
[§116.43 Examination Failures]

[SUBCHAPTER G. PROVISIONAL LICENSED DIETITIANS]
[§116.60 Provisional Licensed Dietitians--Application and Eligibility Requirements]
[§116.61 Provisional Licensed Dietitians--Fitness of Applicants for Licensure ]
[§116.62 Provisional Licensed Dietitians--Issuing Licenses and Identification Cards ]
[§116.63 Provisional Licensed Dietitians--License Term; Renewals ]
[§116.64 Provisional Licensed Dietitians--Upgrading to Licensed Dietitian ]
[§116.65 Provisional Licensed Dietitians--Supervision]

[SUBCHAPTER H. TEMPORARY LICENSED DIETITIANS]
[§116.70 Temporary Licensed Dietitians--Application and Eligibility Requirements; License Term]

This agency hereby certifies that the adopted rules have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State, on June 8, 2018.

Brian E. Francis
Executive Director
Texas Department of Licensing and Regulation