Arkansas Dietetics Licensing Board
SECTION I.
PROMULGATION
Pursuant to Ark. Code Ann.
17-83-101,
et seq. specifically § 17-83-203, "Dietetics Practice
Act," the Arkansas Dietetics Licensing Board ("Board") hereby establishes and
promulgates the following rules. These rules and all future amendments are made
in accordance with the Arkansas Administrative Procedure Act, Ark. Code Ann.
§ 25-15-201, et seq.
SECTION II.
PURPOSE
It is the purpose of the Dietetics Practice Act ("Act") to
protect the health, safety, and welfare of the public by providing for the
licensing and regulations of persons engaged in the practice of dietetics.
Nothing in the Act prevents the furnishing of general nutritional information
on food, food materials, or dietary supplements, or the explanation to
customers about foods or food products in connection with the sale, marketing
and distribution of those products.
SECTION III.
INFORMATION FOR PUBLIC
GUIDANCE
The Board employs persons holding certain responsibilities for
handling Freedom of Information Act ("FOIA") requests, licensing questions, and
complaints against licensees so that the public may obtain information about
the Board or make submissions or requests. The names, mailing addresses,
telephone numbers, and electronic addresses can be obtained from the Board's
office or website.
The Board has a list of official forms used by the Board and a
list of all formal, written statements of policy and written interpretative
memoranda, and orders, decisions and opinions resulting from adjudications,
which may be obtained from the Board's office or website.
SECTION IV.
GENERAL ORGANIZATION
A. The Board shall consist of five (5)
persons, all of whom are Arkansas residents, with the following qualifications:
three (3) Board members who are Licensed Dietitians; two (2) Board members who
are representatives of the public at large including:
1. One (1) member who is not actively engaged
in or retired from the field of Dietetics, to represent the consumers;
and
2. One (1) member who is sixty
(60) years of age or older, who is not actively engaged in or retired from the
field of Dietetics, to represent the elderly.
B. The members of the Board shall be
appointed by the Governor, with the confirmation of the Senate and shall serve
terms of five (5) years.
C. The
Governor shall consult the Board of Directors of the Arkansas Academy of
Nutrition and Dietetics before appointing the three (3) Board members who are
licensed dietitians. Each of these Board members shall have been practicing
dietitians for at least five (5) years preceding their appointment.
D. Members of the Board may be removed by the
Governor for cause. In case of death, resignation, or removal, the vacancy of
the unexpired terms shall be filled by the Governor in the same manner as other
appointments. A person chosen to fill vacancy shall be appointed only for the
unexpired term of the Board member replaced. No member shall serve more than
two (2) consecutive terms.
E. A
quorum of the Board shall consist of four (4) members.
F. Meetings:
1. At least two (2) regular meetings of the
Board shall be held each calendar year, and at the first regular meeting every
two (2) years, the Board shall elect a chairperson and
vice-chairperson.
2. Special called
meetings may be held at the discretion of the chairperson or at the written
request of any three (3) members of the Board.
3. Reasonable notice of all meetings shall be
given in the manner prescribed by the laws of this State.
SECTION V.
DEFINITIONS
The following terms and phrases apply to all rules promulgated
by the Board, unless a specific paragraph in the Act defines or uses the word
or term in a different manner.
A.
"Academy" means the Academy of Nutrition and Dietetics.
B. "Commission on Dietetic Registration
("CDR")" means the Commission on Dietetic Registration that is a national
certifying agency for voluntary professional credentialing in dietetics and a
member of the Institute for Credentialing Excellence.
C. "Degree" means a degree received from a
United States college or university that was regionally accredited at the time
the degree was conferred.
D.
"Dietetics Practice" means the integration and application of the principles
derived from the sciences of nutrition, biochemistry, food, physiology,
management, and behavioral and social sciences to achieve and maintain people's
health through the provision of nutrition care services.
E. "Dietitian" means one engaged in dietetics
practice.
F. "Examination" means
the examination administered by the CDR.
G. "Institute for Credentialing Excellence"
means the national organization that establishes national standards for
certifying bodies that attest to the competence of individuals who participate
in the health care delivery system, grants recognition to certifying bodies
that voluntarily apply and meet the established standards, and monitors the
adherence to those standards by the certifying bodies that it has
recognized.
H. "Licensed Dietitian
("LD")" means a person licensed under this Act.
I. "Nutrition Care Services" means:
1. Assessing the nutritional needs of
individuals and groups of humans and determining resources and constraints in
the practice setting;
2.
Establishing priorities, goals, and objectives that meet nutritional needs of
humans and are consistent with available resources and constraints;
3. Providing nutrition counseling to humans
in health and disease;
4.
Developing, implementing, and managing nutrition care of, and food service
systems for, humans; and
5.
Evaluating, making changes in, and maintaining appropriate standards for
quality in food and nutrition care services for humans.
J. "Provisional Licensed Dietitian ("PLD")"
means a person provisionally licensed under this Act.
K. "Registered Dietitian" means a person
registered by the CDR.
SECTION
VI.
PROHIBITIONS
No individual shall practice or offer to practice dietetics
within the meaning of this Act unless he/she is duly licensed or is a student
under the provisions of this Act.
SECTION VII.
QUALIFICATIONS FOR
ISSUANCE OF LICENSE
A. Pre-licensure
criminal background check
1. Pursuant to Act
990 of 2019, an individual may petition for a pre-licensure determination of
whether the individual's criminal record will disqualify the individual from
licensure and whether a waiver may be obtained.
2. The individual must obtain the
pre-licensure criminal background check petition form from the Board.
3. The Board will respond with a decision in
writing to a completed petition within a reasonable time.
4. The Board's response will state the
reason(s) for the decision.
5. All
decisions of the Board in response to the petition will be determined by the
information provided by the individual.
6. Any decision made by the Board in response
to a pre-licensure criminal background check petition is not subject to
appeal.
7. The Board will retain a
copy of the petition and response and it will be reviewed during the formal
application process.
B.
The Board may issue a license as a Licensed Dietitian ("LD") to an applicant
who qualifies as follows:
1. The applicant
files an application and has:
a. Received a
baccalaureate or post-baccalaureate degree from a regionally accredited United
States college or university with a program in human nutrition, food and
nutrition, dietetics, or food systems management. Applicants who have obtained
their education outside of the United States and its territories must have
their academic degree or degrees validated as equivalent to the baccalaureate
or post-baccalaureate degree conferred by a regionally accredited college or
university in the United States;
b.
Completed a planned, continuous pre-professional experience component in
dietetic practice of not fewer than nine hundred (900) hours under the
supervision of a registered dietitian or licensed dietitian; and c. Passed an
examination as defined by the board; or
2. The applicant files an application and
provides evidence of current registration as a registered dietitian by the
CDR.
C. Applications
shall be typewritten or printed in ink, signed by the applicant and accompanied
by the appropriate fee and by such evidence, statements, or documents as
specified or required by the Board. All applications, statements, and documents
submitted shall become the property of the Board.
D. The Board adopts the passing score on the
examination as the passing score required by the CDR.
E. Licensure for Military Service Members and
Spouses
1. As used in this subsection:
a. "automatic licensure" means the granting
of occupational licensure without an individual's having met occupational
licensure requirements provided under Title 17 of the Arkansas Code or by these
Rules.
b. "returning military
veteran" means a former member of the United States Armed Forces who was
discharged from active duty under circumstances other than
dishonorable.
2. The
Board shall grant automatic licensure to an individual who holds a
substantially equivalent license in another U.S. jurisdiction or is currently
registered by the CDR as a registered dietitian and is:
a. An active duty military service member
stationed in the State of Arkansas;
b. A returning military veteran applying for
licensure within one (1) year of his or her discharge from active duty;
or
c. The spouse of a person under
2 (a) or (b) above.
3.
The Board shall grant such automatic licensure upon receipt of all the below:
a. Payment of the initial licensure
fee;
b. Evidence that the
individual holds a substantially equivalent license in another state;
and
c. Evidence that the applicant
is a qualified applicant under Section E.2 above.
F. Waiver request for
disqualifying criminal offense
1. If an
individual has been convicted of an offense listed in A.C.A. §
17-2-102(a), except those permanently disqualifying offenses found in
subsection (e), the Board may waive disqualification of a potential applicant
or revocation of a license based on the conviction if a request for a waiver is
made by:
a. An affected applicant for a
license; or
b. An individual
holding a license subject to revocation.
2. The Board may grant a waiver upon
consideration of the following, without limitation:
a. The age at which the offense was
committed;
b. The circumstances
surrounding the offense;
c. The
length of time since the offense was committed;
d. Subsequent work history since the offense
was committed;
e. Employment
references since the offense was committed;
f. Character references since the offense was
committed;
g. Relevance of the
offense to the occupational license; and
h. Other evidence demonstrating that
licensure of the applicant does not pose a threat to the health or safety of
the public.
3. A request
for a waiver, if made by an applicant, must be in writing and accompany the
completed application and fees.
4.
The Board will respond with a decision in writing and will state the reasons
for the decision.
5. An appeal of a
determination under this section will be subject to the Administrative
Procedures Act § 25-15-201et seq.
SECTION VII I.
PROVISIONAL
LICENSES
A Provisional License shall permit the holder to practice only
under the direct supervision of a dietitian licensed in this State.
A. The Board may issue a Provisional License
to any dietitian who meets the following requirements:
1. The applicant has filed an application
with the Board, and
2. Submitted
evidence of successful completion of the education requirements in Section
VII.
B. A Provisional
License shall expire eighteen (18) months from the date of issuance.
C. A Provisional License may be renewed upon
submission to the Board of satisfactory explanation for the applicant's failure
to become licensed within the original eighteen (18) month period. A
Provisional License may only be renewed one time.
SECTION IX.
RECIPROCITY
A. The Board shall provide reciprocity for
licensed dietitians from other states, provided that the standards in that
state are not less than those provided for in Section VII.
B. Applicants shall provide the Board with
the following:
1. A current copy of that
state's proposed (if any) and adopted rules/regulations governing its
operations and application and licensing procedures;
2. A copy of the legal authority (law, act,
code, section, or otherwise) for the license including any proposed and final
amendments;
3. Information
regarding all disciplinary actions relating to each applicant from that state's
licensing authority;
4. The names,
addresses, and phone numbers of the licensing authority's chairperson and/or
executive administrator;
5. A copy
of the license or certificate for which the reciprocal licensure is requested;
and
6. Any other information deemed
necessary by the Board or by its legal counsel.
C. All application materials shall be
completed and application and license fees shall be paid by the applicant. All
application materials become the property of the Board.
D. The Board may contact the issuing
authority to verify the applicant's status with the agency at the time of
application.
SECTION X.
RENEWAL OF LICENSES
A. A licensee
must renew their license annually and is responsible for renewing before the
expiration date.
1. All licenses issued as of
January 1, 2021 will have a renewal date of December 1 of each year.
2. All licenses issued after January 1, 2021
will have a renewal date of one (1) year from the date of issuance.
B. Licensees applying for renewal
shall:
1. Submit a completed renewal
application;
2. Renewal fee;
and
3. Documentation showing
completion of at least twelve (12) clock hours per renewal period of continuing
education. All continuing education hours must be in compliance with continuing
professional education activities approved by CDR.
C. Continuing Education Extension Request
1. The one (1) year completion period for
continuing education requirements may be extended on an individual basis if the
Board determines a licensee's circumstances prevented him/her from timely
completing the requirement.
2. The
request must be in writing with adequate documentation of the circumstances
that prevented the licensee from completing the requirement.
3. The request must be submitted at least
twenty (20) days prior to the expiration date of the license.
4. If the Board grants an extension, the time
for completion will not exceed ninety (90) days past the expiration date of the
license.
5. All hours obtained
during the extension period will only be applied towards the twelve (12) hours
required for the renewal period in which the extension was requested and not
towards the next renewal period's twelve (12) hours requirement.
D. The Board shall mail a notice
for renewal of a license to each person sixty (60) days prior to the renewal
date.
1. The renewal notice shall be mailed
to the most recent address of the person as it appears on the record of the
Board.
2. The renewal notice shall
include:
a. The expiration date of the
license;
b. The amount of the
renewal fee due; and
c. The license
renewal form.
E. The licensee shall complete the renewal
form and return it to the Board, accompanied by the required renewal fee,
within no more than sixty (60) days after the renewal notice was mailed by the
Board.
F. Late Renewal Requirements
1. If a licensee fails to renew his/her
license within the sixty (60) day period, the license shall lapse the last day
of the month of the renewal date.
2. If the renewal license has expired for no
more than ninety (90) days, the licensee may renew the license by paying the
Board the required renewal fee and a penalty in an amount equal to one-half
(1/2) of the renewal fee.
3. If the
renewal license has expired for more than ninety (90) days but less than one
(1) year, the licensee may renew the license by paying the Board the required
renewal fee and a penalty in an amount equal to the renewal fee.
4. If a license has been expired one (1) year
or more, the license shall not be renewed, but a new license may be obtained by
applying to the Board as a new licensee.
5. If a license has expired, before renewal a
licensee must submit to the Board an attestation that the licensee has not
practiced in dietetics since the day that the license lapsed and that the
licensee will not practice dietetics until the license is approved for renewal
by the Board.
G.
Expiration of License
1. A person whose
license has expired may not use the title or represent or imply that he/she has
the title of "licensed dietitian" or "provisional licensed dietitian" or use
the letters "LD" or "PLD" and may not use any facsimile of those titles in any
manner.
2. A person whose license
has expired must return to the Board his/her license certificate and license
identification card within thirty (30) days of notification by the
Board.
SECTION
XI.
FEES
The Board shall establish, charge, and collect fees as
follows:
A. Application and license
fee for Licensed Dietitian (LD), including those seeking licensure through
reciprocity, shall be $110.
B.
Annual LD license renewal fee shall be $50.
C. Application and licensing fee for
Provisional Licensed Dietitian (PLD) shall be $150.
D. One time eighteen (18) month renewal fee
for PLD shall be $75.
E. Duplicate
or replacement of a lost or destroyed license (LD/PLD) shall be $25.
SECTION XII.
STANDARDS OF
PROFESSIONAL RESPONSIBILITY
The Board adopts the most current CDR Code of Ethics for all
persons holding an LD or PLD license. A copy of the code is available from the
Board's office or the CDR website.
SECTION XIII.
LICENSE ISSUANCE AND
RENEWAL DENIAL
A. The Board may refuse
to issue or renew a license, or may revoke or suspend a license for any of the
following, but is not limited to:
1. Violation
of a provision of the Dietetics Practice Act or the rules adopted by the
Board;
2. Engaging in
unprofessional conduct or gross incompetence as defined by the rules of the
Board or violating standards of professional responsibility adopted and
published by the Board; or
3.
Conviction of a felony listed under § 17-2-102.
B. The Board may deny approval of an
application from an applicant who is either licensed by another state or
Registered Dietitian, if the Board has determined that the applicant may be:
1. In violation of that state's Act or rules
of the licensing authority, if applicable;
2. In violation of a provision of the
Dietetics Practice Act or the rules adopted by the Board;
3. Engaging in unprofessional conduct or
gross incompetence as defined by the rules of the Board or violating standards
of professional responsibility adopted and published by the Board; or
4. Convicted of a felony listed under §
17-2-102.
C. If a
preliminary determination is made that the application should be denied, the
Board will inform the applicant of the opportunity for a hearing on the
application.
D. The grounds or
basis for the proposed denial of a license will be set forth in writing by the
Board. Any hearing on the denial of a license will be conducted in accordance
with Ark. Code Ann. §§ 25-15-208 and 25-15-213, and unless otherwise
provided by law, the applicant has the burden of establishing entitlement to
the license.
SECTION
XIV.
DISCIPLINARY PROCEDURES
A. Complaint
1. The Board is authorized to receive
complaints against licensees or applicants from any person. Signed complaints
must be submitted in writing to the Board's office. A complaint form may be
obtained from the Board's office.
2. The Board may on its own motion, in the
absence of a written complaint, conduct an investigation of a suspected
violation if reasonable cause exists to believe a violation has
occurred.
B.
Investigation
1. The Board shall investigate
a complaint if the complaint states prima facie violations of the Dietetics
Practice Act or Board rules. The Board Chairman will appoint one or more board
members to investigate the complaint.
2. A copy of the complaint will be sent
certified mail to the party complained against. The party complained against
shall submit a written response to the complaint within a reasonable time as
provided by the Board's instructions.
3. The Board investigator(s) will review the
response to the complaint. Further investigation will be conducted if deemed
appropriate.
4. Upon completion of
the investigation and upon the recommendation of the Board investigator(s), the
Board will determine whether to conduct a hearing, dismiss the complaint, or
take other appropriate action. All interested parties will be notified of the
Board's instruction.
5. When
appropriate, informal hearing procedures may be used to attempt to resolve
complaints in lieu of an administrative hearing.
C. Suspension, Revocation, or Other Sanctions
1. Prior to the entry of a final order to
suspend, revoke, or to impose other sanctions upon a licensee, the agency will
serve the licensee a notice of hearing in the manner set out in Ark. Code Ann.
§ 25-15-208 and Section XIV.
2. The Board has the burden of proving the
alleged facts and violations of law stated in the notice.
SECTION XV.
ADMINISTRATIVE
HEARING
A. Scope of this Section -
This section applies in all administrative adjudications conducted by the
Board. This rule describes the process by which the Board formulates orders
(for example, an order revoking a license to practice, or imposing civil
penalties).
B. Presiding Officer -
The Board shall preside at the hearing or may designate one or more members of
the Board or one or more examiners, referees, or hearing officers to preside at
a hearing.
C. Appearances
1. Any party appearing in any agency
proceeding has the right, at his or her own expense, to be represented by
counsel. Alternatively, the respondent may appear on his or her own
behalf.
2. Any attorney
representing a party to an adjudicatory proceeding must file notice of
appearance as soon as possible.
3.
Service on counsel of record is the equivalent of service on the party
represented.
4. On written motion
served on the party represented and all other parties of record, the presiding
officer may grant counsel of record leave to withdraw for good cause
shown.
D. Consolidation
- If there are separate matters that involve similar issues of law or fact, or
identical parties, the matters may be consolidated if it appears that
consolidation would promote the just, speedy, and inexpensive resolution of the
proceedings, and would not unduly prejudice the rights of a party.
E. Notice to Interested Parties - If it
appears that the determination of the rights of parties in a proceeding will
necessarily involve a determination of the substantial interests of persons who
are not parties, the presiding officer may enter an order requiring that an
absent person be notified of the proceeding and be given an opportunity to be
joined as a party of record.
F.
Service of Papers - Unless the presiding officer otherwise orders, every
pleading and every other paper filed for the proceeding, except applications
for witness subpoenas and the subpoenas, shall be served on each party or the
party's representative at the last address of record.
G. Initiation & Notice of Hearing
1. An administrative adjudication is
initiated when the agency issues a notice of hearing.
2. The notice of hearing will be sent to the
respondent by U.S. Mail, return receipt requested, delivery restricted to the
named recipient or his agent. Notice shall be sufficient when it is so mailed
to the respondent's latest address on file with the agency.
3. Notice will be mailed at least twenty (20)
days before the scheduled hearing.
4. The notice will include:
a. Statement of the time, place, and nature
of the hearing;
b. A statement of
the legal authority and jurisdiction under which the hearing is to be held;
and
c. A short and plain statement
of the matters of fact and law asserted.
H. Motions - All requests for relief will be
by motion. Motions must be in writing or made on the record during a hearing. A
motion must fully state the action requested and the grounds relied upon. The
original written motion will be filed with the agency. When time allows, the
other parties may, within seven (7) days of the service of the written motion,
file a response in opposition. The presiding officer may conduct such
proceedings and enter such orders as are deemed necessary to address issues
raised by the motion. However, a presiding officer, other than the Board will
not enter a dispositive order unless expressly authorized in writing to do
so.
I. Answer - A respondent may
file an answer to the notice of hearing.
J. Information Provided upon Request
1. Upon written request, the Board will
provide the information designated in Ark. Code Ann. §
25-15-208(a)(3).
2. Such requests
should be received by the Board at least 10 days before the scheduled
hearing.
K. Continuances
1. The Board may grant a continuance of
hearing for good cause shown. Requests for continuances will be made in
writing. The request must state the grounds to be considered and be made as
soon as practicable and, except in cases of emergencies, no later than five (5)
days prior to the date noticed for the hearing. In determining whether to grant
a continuance, the Board may consider:
a.
Prior continuances;
b. The
interests of all parties;
c. The
likelihood of informal settlements;
d. The existence of an emergency;
e. Any objection;
f. Any applicable time requirement;
g. The existence of a conflict of the
schedules of counsel, parties, or witnesses;
h. The time limits of the request;
and
i. Other relevant
factors.
2. The Board
may require documentation of any grounds for continuance.
L. Hearing Procedures
1. The presiding officer presides at the
hearing and may rule on motions, require briefs, and issue such orders as will
ensure the orderly conduct of the proceedings; provided, however, any presiding
officer other than the Board shall not enter a dispositive order or proposed
decision unless expressly authorized in writing to do so.
2. All objections must be made in a timely
manner and stated on the record.
3.
Parties have the right to participate or to be represented by counsel in all
hearings or pre-hearing conferences related to their case.
4. Subject to terms and conditions prescribed
by the Administrative Procedure Act, parties have the right to introduce
evidence on issues of material fact, cross-examine witnesses as necessary for a
full and true disclosure of the facts, present evidence in rebuttal, and, upon
request by the agency, may submit briefs and engage in oral argument.
5. The presiding officer is charged with
maintaining the decorum of the hearing and may refuse to admit, or may expel,
anyone whose conduct is disorderly.
M. Order of Proceedings
The presiding officer will conduct the hearing in the
following manner:
1. The presiding
officer will give an opening statement, briefly describing the nature of the
proceedings.
2. The parties will be
given the opportunity to present opening statements.
3. The parties will be allowed to present
their cases in the sequence determined by the presiding officer.
4. Each witness must be sworn or affirmed by
the presiding officer and be subject to examination and cross-examination as
well as questioning by the Board. The presiding officer may limit questioning
in a manner consistent with the law.
5. When all parties and witnesses have been
heard, parties will be given the opportunity to present final
arguments.
N. Evidence
1. The presiding officer shall rule on the
admissibility of evidence and may, when appropriate, take official notice of
facts in accordance with all applicable requirements of law.
2. Stipulation of facts is encouraged. The
agency may make a decision based on stipulated facts.
3. Evidence in the proceeding must be
confined to the issues set forth in the hearing notice, unless the parties
waive their right to such notice or the presiding officer determines that good
cause justifies expansion of the issues. If the presiding officer decides to
admit evidence outside the scope of the notice, over the objection of a party
who did not have actual notice of those issues, that party, upon timely
request, may receive a continuance sufficient to prepare for the additional
issue and to permit amendment of pleadings.
4. A party seeking admission of an exhibit
must provide ten (10) copies of each exhibit at the hearing. The presiding
officer must provide the opposing parties with an opportunity to examine the
exhibit prior to the ruling on its admissibility. All exhibits admitted into
evidence must be appropriately marked and be made part of the record.
5. Any party may object to specific evidence
or may request limits on the scope of the examination or cross-examination. A
brief statement of the grounds upon which it is based shall accompany such an
objection. The objection, the ruling on the objection, and the reasons for the
ruling will be noted in the record. The presiding officer may rule on the
objection at the time it is made or may reserve the ruling until the written
decision.
6. Whenever evidence is
ruled inadmissible, the party offering that evidence may submit an offer of
proof on the record. The party making the offer of proof for excluded oral
testimony will briefly summarize the testimony or, with permission of the
presiding officer, present the testimony. If the excluded evidence consists of
a document or exhibit, it shall be marked as part of an offer of proof and
inserted in the record.
7.
Irrelevant, immaterial, and unduly repetitive evidence will be excluded. Any
other oral or documentary evidence, not privileged, may be received if it is of
a type commonly relied upon by reasonably prudent men and women in the conduct
of their affairs.
8. The finder of
fact may base its findings of fact upon reasonable inferences derived from
other evidence received.
O. Default - If a party fails to appear or
participate in an administrative adjudication after proper service of notice,
the agency may proceed with the hearing and render a decision in the absence of
the party.
P. Recording the
Proceedings - The Board will record the testimony heard at a hearing. Upon the
filing of a petition for judicial review, the Board will provide a verbatim
transcript of testimony taken before the agency.
Q. Factors to be Considered in Imposing
Sanctions - In addition to any other considerations permitted by the Dietetics
Practice Act, if applicable, the Board in imposing any sanction may consider
the following:
1. The nature and degree of
the misconduct for which the licensee is being sanctioned.
2. The seriousness and circumstances
surrounding this misconduct.
3. The
loss or damage to clients or others.
4. The assurance that those who seek similar
professional services in the future will be protected from the type of
misconduct found.
5. The profit to
the licensee.
6. The avoidance of
repetition.
7. Whether the conduct
was deliberate, intentional, or negligent.
8. The deterrent effect on others.
9. The conduct of the individual during the
course of the disciplinary proceeding.
10. The professional's prior disciplinary
record, including warnings.
11.
Matters offered by the professional in mitigation or extenuation, except that a
claim of disability or impairment resulting from the use of alcohol or drugs
may not be considered unless the professional demonstrates that he or she is
successfully pursuing in good faith a program of recovery.
R. Final Order
1. The Board will serve on the respondent a
written order that reflects the action taken by the Board. The order will
include a recitation of facts found based on testimony and other evidence
presented and reasonable inferences derived from the evidence pertinent to the
issues of the case. It will also state conclusions of law and directives or
other disposition entered against or in favor of the respondent.
2. The order will be served personally or by
mail on the respondent. If counsel represents respondent, service of the order
on respondent's counsel shall be deemed service on the respondent.
SECTION XVI.
DECLARATORY ORDERS
A. Purpose and
Use of Declaratory Orders
1. A declaratory
order is a means of resolving a controversy or answering questions or doubts
concerning the applicability of statutory provisions, rules, or orders over
which the Board has authority.
2. A
petition for declaratory order may be used only to resolve questions or doubts
as to how the statutes, rules, or orders may apply to the petitioner's
particular circumstances.
3. A
declaratory order is not the appropriate means for determining the conduct of
another person or for obtaining a policy statement of general applicability
from the Board.
4. A petition or
declaratory order must describe the potential impact of statutes, rules, or
orders upon the petitioner's interests.
B. The Petition - The process to obtain a
declaratory order is begun by filing with the Board's office a petition that
provides the following information:
1. The
name, address, telephone number, and facsimile number of the
petitioner;
2. The name, address,
telephone number, and facsimile number of the attorney of the
petitioner;
3. The statutory
provision(s), agency rule(s), or agency order(s) on which the declaratory order
is sought;
4. A description of how
the statutes, rules, or orders may substantially affect the petitioner and the
petitioner's particular set of circumstances, and the question or issue on
which petitioner seeks a declaratory order;
5. The signature of the petitioner or
petitioner's attorney;
6. The date;
and
7. Request for a hearing, if
desired.
C. Board
Disposition
1. The Board may hold a hearing
to consider a petition for declaratory order. If a hearing is held, it shall be
conducted in accordance with Ark. Code Ann. § 25-15-208 and §
25-15-213, and the Board's rules for adjudicatory hearings.
2. The Board may rely on the statements of
fact set out in the petition without taking any position with regard to the
validity of the facts. Within ninety (90) days of the filing of the petition,
the Board will render a final order denying the petition or issuing a
declaratory order.
Section
XVII.
THE PRACTICE OF TELEMEDICINE
A. Definitions
1. "Distant site" means the location of the
healthcare professional delivering services through telemedicine at the time
the services are provided. Ark. Code Ann. § 17-80-402(1).
2. "Originating site" means a site at which a
patient is located at the time healthcare services are provided to him or her
by means of telemedicine. Ark. Code Ann. § 17-80-402(2).
3. "Remote patient monitoring" means the use
of synchronous or asynchronous electronic information and communication
technology to collect personal health information and medical data from a
patient at an originating site that is transmitted to a healthcare professional
at a distant site for use in the treatment and management of medical conditions
that require frequent monitoring. Ark. Code Ann. § 17-80-402(5).
4. "Store-and-forward technology" means the
asynchronous transmission of a patient's medical information from a healthcare
professional at an originating site to a healthcare professional at a distant
site. Ark. Code Ann. § 17-80-402(6).
5. "Telemedicine" means the use of electronic
information and communication technology to deliver healthcare services,
including without limitation the assessment, diagnosis, consultation,
treatment, education, care management, and self-management of a patient.
Telemedicine includes store-and-forward technology and remote patient
monitoring. Ark. Code Ann. § 17-80-402(7).
B. Establishing a Licensed Dietitian/Client
Relationship - A licensed dietitian/client relationship must be established in
accordance with Ark. Code Ann. §§ 17-80-402 & 403 and Section VII
before the delivery of services via telemedicine. A client's completing a
nutrition history online and forwarding it to a licensed dietitian is not
sufficient to establish the relationship, nor does it qualify as
store-and-forward technology. A licensed dietitian exhibits gross negligence if
he or she provides and/or recommends any form of treatment via telemedicine
without first establishing a proper licensed dietitian/client
relationship.
C. Minimum
Requirements for Licensed Dietitian/Client Relationship - For purposes of this
regulation, a proper licensed dietitian/client relationship, at a minimum
requires that:
1. The licensed dietitian
performs an "in person" nutrition history of the client adequate to establish a
diagnosis and develop a treatment plan, OR
2. The licensed dietitian performs a face to
face nutrition history using real time audio and visual telemedicine technology
that provides information at least equal to such information as would have been
obtained by an in-person nutrition history, OR
3. The licensed dietitian knows the client
and the client's general nutrition issues through a previously established
professional relationship; AND
4.
Appropriate follow-up be provided or arranged, when necessary.
D. When a Licensed
Dietitian/Client Relationship is Deemed to Exist - For the purposes of this
regulation, a proper licensed dietitian/client relationship is deemed to exist
in the following situations:
1. When
treatment is provided in consultation with, or upon referral by, another
provider or treatment team who has an ongoing relationship with the client, and
who has agreed to supervise the client's treatment, including follow up
care.
2. On-call or cross-coverage
situations arranged by the client's treating provider or treatment
team.
E. Exceptions -
Recognizing a licensed dietitian's duty to adhere to the applicable standard of
care and to comply with mandatory reporting laws, the following situations are
excluded from the requirement of this regulation by Ark. Code Ann. §
17-80-403(a)(2):
1. Emergency situations
where the life or health of the client is in danger or imminent
danger.
2. Simply providing
information of a generic nature, not meant to be specific to an individual
client.
F. Professional
Relationship Exceptions - Under Ark. Code Ann. § 17-80-403(c),
"Professional relationship" does not include a relationship between a licensed
dietitian and a client established only by the following:
1. An internet questionnaire;
2. An email message;
3. Patient-generated medical
history;
4. Audio-only
communication, including without limitation interactive audio;
5. Text messaging;
6. A facsimile machine; or
7. Any combination thereof.
G. Requirements for Services
Provided V IA Telemedicine - The following requirements apply to all services
provided by licensed dietitians using telemedicine.
1. The practice of dietetics via telemedicine
shall be held to the same standards of care as traditional in-person
encounters.
2. The licensed
dietitian must obtain a detailed explanation of the client's medical diagnosis
from the client or the client's treating provider or treatment team in order to
individualize the nutrition interventions.
3. If a decision is made to provide treatment
(medical nutrition therapy), the licensed dietitian must agree to accept
responsibility for the (nutrition) care of the client.
4. If follow-up care is indicated, the
licensed dietitian must agree to provide or arrange for such follow-up
care.
5. The licensed dietitian
must keep a documented treatment record, including, but not limited to
nutrition history, interventions, and outcomes.
6. At the client's request, the licensed
dietitian must make available to the client an electronic or hardcopy version
of the client's treatment record documenting the encounter. Additionally,
unless the client declines to consent, the licensed dietitian must forward a
copy of the record of the encounter to the client's regular treating provider
or treatment team if that provider or treatment team is not the same licensed
dietitian delivering the service via telemedicine.
7. Services must be delivered in a
transparent manner, including providing access to information identifying the
licensed dietitian's licensure and other relevant certifications, as well as
client financial responsibilities, in advance of the encounter.
8. If the client, at the recommendation of
the licensed dietitian, needs to be seen in person, the licensed dietitian must
arrange to see the client in person or direct the client to their regular
treating provider or treatment team or other appropriate provider if the client
does not have a treating provider or treatment team. Such recommendation shall
be documented in the client's treatment record.
9. Licensed dietitians who deliver services
through telemedicine must establish protocols for referrals for emergency
services.
H. Scope of
Practice - Licensed dietitians may practice dietetics via telemedicine within
the definitions found in Section V.
I. Confidentiality - Licensed dietitians who
use technology to facilitate supervision, consultation, or other confidential
meetings shall use appropriate precautions to protect the confidentiality of
those communications. Precautions to protect confidentiality depend on the type
of technology being used, and may include using passwords, firewalls,
encryption, and antivirus software; using electronic service providers that
rely on standards of security for data that are transmitted and stored; and
ensuring a private setting when using their electronic devices.