On behalf of the Certification Board for Nutrition Specialists (“CBNS”), Emord & Associates, P.C. submitted comments on proposed revisions to 42 C.F.R. § 482.28, which concerns food and dietetic services. The Centers for Medicare & Medicaid Services (“CMS”) agreed with CBNS’ comments and incorporated its suggestions into the final rule, 79 Fed. Reg. 27105 (May 12, 2014).
The old version of section 482.28 provided that only the practitioner responsible for the care of a patient could order the patient’s diet, including a therapeutic diet. CMS proposed that the rule be revised to also allow a “qualified dietitian” to order a patient’s diet as authorized by medical staff. According to CMS, it suggested the term “qualified dietitian” because “a few States elect not to use the regulatory term ‘registered’ and choose instead to use the term ‘licensed’ (or no modifying term at all) . . .” 78 Fed. Reg. 9126, 9222 (Feb. 7, 2013). CMS claimed that the rule needed to be revised because “[p]hysicians, APRNs, and PAs often lack the training and educational background to manage the sometimes complex nutritional needs of patients with the same degree of efficiency and skill as RDs who have benefited from curriculums that devote a significant number of educational hours to this area of medicine.” Id. at 9223. CMS further stated that dietitians are “the professionals who are best qualified to assess a patient’s nutritional status and to design and implement a nutritional treatment plan in consultation with the patient’s interdisciplinary care team.” Id. at 9222.
In CBNS’ comments, it recommended that a “qualified nutritionist” also be allowed to order a patient’s diet. CBNS explained that some nutritionists have far more advanced training in Medical Nutrition Therapy and therapeutic diets than some dietitians. CBNS also pointed out that a person’s status as a dietitian does not guarantee that he possesses the level, degree, quality or quantity of education, training, and experience needed for reliably competent and effective ordering of therapeutic diets and Medical Nutrition Therapy.
In response to comments CMS received, it revised section 482.28 to allow “registered dietitians and other clinically qualified nutrition professionals to be privileged to order patient diets under the hospital conditions of participation (CoPs).” Specifically, CMS amended the rule to now require that all patient diets, including therapeutic diets, must be ordered by a practitioner responsible for the care of the patient of by a qualified dietitian or qualified nutrition professional as authorized by the medical staff and in accordance with State law governing dietitians and nutrition professionals.” (Emphasis added.) In explaining the reason for this change, CMS stated:
Our use of the term “registered dietitian,” in the proposed regulatory language, along with our use of this term and the terms “qualified dietitian” and “RD” in the preamble, was not meant to be exclusive of other nutrition professionals qualified to practice in the hospital setting. We agree with commenters that the regulatory language for § 482.28 should be inclusive of all qualified nutrition professionals. We do not agree with commenters who requested that we use the term “registered dietitian” or define “qualified dietitian” as an individual specifically registered with the Commission on Dietetic Registration. We agree that a more flexible approach would be the best way to ensure that patients benefit from the improved quality of care that these professionals can bring to hospital food and dietetic services. Additionally, we believe that it is best left to individual States to determine the regulatory processes by which these professions are governed and that hospitals, through their medical staff privileging processes, should be allowed the flexibility to determine the credentials and qualifications for dietitians and nutrition professionals, in accordance with their respective State laws if and when they choose to grant ordering privileges to these professionals.
CMS’ decision is a blow to the Academy of Nutrition and Dietetics (“AND”), which has worked towards establishing a monopoly of registered dietitians.
