W. Va. Code R. § 31-1-9

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 31-1-9 - [Effective 7/1/2024] Causes for Denial, Probation, Limitation, Discipline, Suspension or Revocation of Licenses of Dietitians

9.1. The Board may deny an application for license or a provisional permit, place a licensee on probation, suspend a license or provisional permit, limit or restrict a license or provisional permit or revoke any license or provisional permit issued by the Board, upon satisfactory proof that the licensee has:

9.1.1. Knowingly made, or presented or caused to be made or presented, any false, fraudulent or forged statement, writing, certificate, diploma or other material in connection with an application for a license;

9.1.2. Been or is involved in fraud, forgery, deception, collusion or conspiracy in connection with an examination for a license;

9.1.3. Become addicted to a controlled substance;

9.1.4. Become a chronic or persistent alcoholic;

9.1.5. Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public or member of the public;

9.1.6. Willfully violated a confidential communication with a client or patient;

9.1.7. Demonstrated a lack of professional competence to practice medical nutrition therapy or other nutrition or dietetic-related services with a reasonable degree of skill and safety for patients;

9.1.8. Been convicted of or found guilty of a crime in any jurisdiction which directly relates to the practice of medical nutrition therapy or other nutrition or dietetic-related services. A plea of nolo contendere may be considered conviction for the purposes of this rule;

9.1.9. Failed to report to the Board any person whom the licensee knows is in violation of this rule or of provisions of article thirty-five of chapter thirty of the West Virginia code;

9.1.10. Aided, assisted, procured or advised any unlicensed person to practice as a licensed dietitian contrary to this rule or provisions of article thirty-five of chapter thirty of the West Virginia code;

9.1.11. Failed to perform any statutory or legal obligation placed upon a licensed dietitian;

9.1.12. Made or filed a report which the licensee knows to be false, or intentionally or negligently failed to file a report or record required by state or federal law;

9.1.13. Paid or received any commission, bonus, rebate or other financial incentive, or engaged in any split-fee arrangement with any organization, agency or person, for referring patients to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, renal dialysis facilities or pharmacies;

9.1.14. Exercised influence on a patient or client for purposes of exploiting for financial gain or engaging in sexual activity;

9.1.15. Failed to keep written records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results and treatment;

9.1.16. Engaged in false or deceptive advertising; advertised, practiced or attempted to practice under a name other than his or her own; charged or collected any fee for any type of services rendered within forty-eight (48) hours of the initial visit, if the licensee advertised free consultation or treatment;

9.1.17. Charged an excessive or unconscionable fee. If the Board finds that an excessive or unconscionable fee has been charged and collected, the Board may require the licensee to reduce or reimburse the fee. Factors to be considered in determining the reasonableness of a fee include the following:

9.1.17.1. The time and effort required;

9.1.17.2. The novelty and difficulty of the procedure or treatment;

9.1.17.3. The skill required to perform the procedure or treatment properly;

9.1.17.4. Any requirements or conditions imposed by the patient or circumstances;

9.1.17.5. The nature and length of the professional relationship with the patient;

9.1.17.6. The experience, reputation and ability of the licensee; and

9.1.17.7. The nature of the circumstances under which the services are provided.

9.2. The Board may not disqualify an applicant from initial licensure to engage in a profession or occupation because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the profession of Dietetics or Nutrition Therapy requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the board shall consider at a minimum:

9.2.1. The nature and seriousness of the crime for which the individual was convicted;

9.2.2. The passage of time since the commission of the crime;

9.2.3. The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

9.2.4. Any evidence of rehabilitation or treatment undertaken by the individual.

9.3. Because the term "moral turpitude" is vague and subject to inconsistent applications, boards may not rely upon the description of a crime for which an applicant has been convicted as one of "moral turpitude" as a basis for denying licensure: Provided, That if the prior conviction for the underlying crime bears a rational nexus to the profession or occupation requiring licensure, the board may consider the conviction.

9.4. If an applicant is disqualified from licensure because of a prior criminal conviction, a board shall permit the applicant to apply for initial licensure if:

9.4.1. A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

9.4.2 The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

9.4.3. The conviction was not for an offense of a violent or sexual nature: Provided, that a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the board.

9.5. An individual with a criminal record who has not previously applied for licensure may petition the board at any time for a determination of whether the individual's criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual's criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The board shall provide the determination within 60 days of receiving the petition from the applicant. The board may charge a fee to recoup its costs for each petition.

9.6. The requirements of this section do not apply to the criteria that boards may consider when making determinations regarding relicensure or discipline of licensees.

W. Va. Code R. § 31-1-9