(Updated September 2019)
The Center for Medicare and Medicaid Services has enacted final rules to authorize the participation of RDNs in the issuance of therapeutic diet orders in hospitals and long term care (LTC facilities) if consistent with state laws and facility policy. In most states, hospitals and LTC facilities are each governed by different regulations. Therefore, implementation of these privileges may differ depending on the care setting (hospital or LTC).
Accordingly, RDNs should read the Practice Tips referred to in each section to guide implementation of the CMS rules. Additionally, RDNs and state affiliate policy leaders should become familiar with their state facility licensing regulations.
The implications of state licensure or certification regulations on order writing privileges should also be considered. The information included on this page and at the linked webpages will provide state by state guidance. Facility legal counsel and/or a regulatory compliance officer should also be consulted to ensure the process is consistent with state laws and all facility policies and bylaws.
Therapeutic Diet Orders: Hospitals and Critical Access Hospitals
Therapeutic Diet Orders: Long Term Care Facilities
In 2014, CMS announced a final rule that includes the ability for "qualified dietitians and other qualified nutrition professionals" to order therapeutic diets if consistent with state law and authorized by the hospital's governing body. The Academy advocated for this rule, and continues to work with state affiliates to ensure state laws and hospital policies facilitate RDNs working to the full extent of their scope of practice.
Review the practice tips to determine next steps for obtaining privileges in your hospital:
If a regulatory impediment or uncertainty about implementing this privilege exists (as shown on our updated map), work with your affiliate policy leaders and the Policy Initiatives and Advocacy team to identify strategies for taking advantage of the new rule.
1. What does this final rule do?
The Centers of Medicare and Medicaid Services pre-published a final rule (effective July 11, 2014) that would "Save hospitals significant resources by permitting registered dietitians and other qualified nutrition professionals to order patient diets independently, which they are trained to do, without requiring the supervision or approval of a physician or other practitioner. This frees up time for physicians and other practitioners to care for patients." According to CMS in the final rule, "[t]he addition of ordering privileges enhances the ability that RDNs already have to provide timely, cost-effective, and evidence-based nutrition services as the recognized nutrition experts on a hospital interdisciplinary team." This change only applies to RDNs privileged by the hospital in which they work.
As CMS previously noted, "Our intent in revising the provision was to provide the flexibility that hospitals need under federal law to maximize their medical staff opportunities for all practitioners, but within the regulatory boundaries of their State licensing and scope-of-practice laws. We believe that the greater flexibility for hospitals and medical staffs to enlist the services of non-physician practitioners to carry out the patient care duties for which they are trained and licensed will allow them to meet the needs of their patients most efficiently and effectively."
Relevant portions of the final rule are on pages 5, 11, 13, 33, 43-52, 112, 144-145, 150-159, 177-178 and 186-187.
2. Who will be able to order therapeutic diets?
Under the rule, qualified dietitians or qualified nutrition professionals are explicitly permitted to become privileged by the hospital's medical staff to (a) order patient diets, (b) order lab tests to monitor the effectiveness of dietary plans and orders, and (c) make subsequent modifications to those diets based on the lab tests, if in accordance with state laws including scope of practice laws and specifically authorized by the medical staff. CMS made this change because it "believe[s] that RDs 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." CMS did note that lab ordering "privileges for dietitians and nutrition professionals are not required or specifically allowed by this requirement, but are instead an option left to hospitals and their medical staffs to determine in consideration of relevant State law as well as any other requirements and/or incentives that CMS or other insurers might have."
CMS's new rule is in accordance with longstanding federal law that has allowed qualified dietitians and qualified nutrition professionals the ability to work in hospitals to provide nutrition services. Under the new rule, hospitals have the authority to determine who will be privileged.
3. What is a "qualified dietitian or qualified nutrition professional"?
The CMS Conditions of Participation for hospitals do not clearly define the term "qualified dietitian," but the interpretive guidelines indicate that "Qualification is determined on the basis of education, experience, specialized training, State licensure or registration when applicable, and maintaining professional standards of practice." CMS defines "qualified dietitian" in other care settings that may be used for guidance in hospitals. In long term care facilities, a qualified dietitian is one who is qualified based upon either registration by the Commission on Dietetic Registration of the American Dietetic Association, or on the basis of education, training, or experience in identification of dietary needs, planning, and implementation of dietary programs. In transplant centers, "a qualified dietitian is an individual who meets practice requirements in the State in which he or she practices and is a registered dietitian with the Commission on Dietetic Registration." The final rule indicates it is CMS's "intention … to include all qualified dietitians and any other clinically qualified nutrition professionals, regardless of the modifying term (or lack thereof), as long as each qualified dietitian or clinically qualified nutrition professional meets the requirements of his or her respective State laws, regulations, or other appropriate professional standards."
4. Is this final rule a good thing?
The final rule is a major policy success for the Academy and reflects the commitment of the Academy and its Board to achieving policy goals. Academy members consistently identified the regulatory impediment to ordering therapeutic diets as one of the most significant issues frustrating efficient, effective practice, as it prevented RDNs from performing at the height of their competencies.
The Academy's Policy Initiatives and Advocacy team, in conjunction with Quality Management, re-initiated efforts to produce a regulatory change within CMS beginning in 2010, by producing a detailed analysis of the legal and practice issues surrounding therapeutic diets on both federal and state levels with recommendations for effecting a regulatory change at CMS. The Academy worked with CMS during multiple meetings, evidentiary offerings, and regulatory comments to bring about this tremendous success. The Legislative and Public Policy Committee, the Quality Management Committee, and the Academy's CMS Workgroup provided significant member input, support and guidance throughout the process.
5. Does the rule do anything else in addition to making this change in diet ordering?
Yes. The final rule specifically clarifies that RDNs may be included on the medical staff, as they "have equally important roles to play on a medical staff and on the quality of medical care provided to patients in the hospital."
In addition, the final rule reviewed suggestions that would enable RDNs and other practitioners to furnish and bill for site telehealth services through rural health clinics (RHC) in a way that will not result in duplicate payment (once through the Medicare RHC cost report and again through the Medicare Part B physician fee schedule payment).
6. What is the history of this final rule?
This final rule responds directly to the President's instructions in Executive Order 13563 urging federal agencies to reduce or revise outmoded or unnecessarily burdensome rules and regulations. Many of the rule's provisions streamline the standards health care providers must meet in order to participate in the Medicare and Medicaid programs without jeopardizing beneficiary safety. The Academy submitted formal comments to CMS in December 2011 urging this very change, providing the evidentiary and scientific basis upon which CMS relied in drafting the rule.
7. How is "therapeutic diet" defined?
There is not presently a definition of therapeutic diet in the CMS Conditions of Participation regulating hospitals. CMS has acknowledged the Academy-approved "therapeutic diet" definition in interpretive guidance for the Resident Assessment Instrument Manual 3.0. The Academy will continue to work with CMS to encourage adoption of the definition for hospitals and across the continuum of care. In the Federal Register from May 12, 2014 announcing the hospital rule change, CMS stated they "consider all patient diets to be therapeutic in nature, regardless of the modality used to support the nutritional needs of the patient, and that the term would most certainly include enteral and parenteral nutrition support".
8. When will I be able to start ordering therapeutic diets for my patients?
Before an RDN will be legally permitted to order patient diets, the RDN must become part of the medical staff or be granted privileges by the hospital to order therapeutic diets. In addition, given the abundance of state laws and regulations that mirrored the restrictive regulation that CMS has revised, it is important to be aware of the progress state legislatures and regulatory authorities have made in ensuring consistency with this new rule. The Academy has provided an updated map of state regulatory status.
The Academy has also provided its members with two Practice Tips documents ("Hospital Regulation" and "Implementation Steps") that will help guide them through the implementation phase in their state.
9. What does it mean to have hospital privileges?
Privileging is the process by which a hospital's medical staff individually evaluates each practitioner and determines that he or she has the qualifications and demonstrated competence to perform all of the specific tasks for which privileges are granted.
10. Would this include the ordering of nutritional supplements, too?
Privileged RDNs should be able to order nutritional supplements for patients in accordance with state laws and regulations.
11. Our state does not license dietitians (or our state only certifies dietitians); does this rule change apply to RDNs in our state?
The Academy believes that RDNs in states that do not currently license dietitians will be able to become privileged to order patient diets. CMS clearly states that "[i]n order for patients to have access to the timely nutritional care that can be provided by RDs, a hospital must have the regulatory flexibility either to appoint RDs to the medical staff and grant them specific nutritional ordering privileges or to authorize the ordering privileges without appointment to the medical staff, all through the hospital's appropriate medical staff rules, regulations, and bylaws." (Emphasis added.) State surveyors in some states without licensure do not permit RDNs to become privileged predicated on their belief that without a dietetics licensure board, there was insufficient oversight for reporting improper dietetics practice. In this rule, CMS appears to rebut that premise, stating that whether through appointment to the medical staff or the granting of order writing privileges by the hospital, "medical staff oversight of RDNs and their ordering privileges would be ensured." The Academy will keep members apprised of specific developments on this topic.
All hospitals in every state that deals with and receives reimbursement from CMS must follow the regulations and interpretive guidelines in the CMS State Operations Manual - specifically § 482.28 - Conditions of Participation (CoPs): Food and Dietetic Services.
12. What's the difference between membership on the medical staff and privileging?
As defined in the Academy Definitions of Terms, credentialing to be a member of the medical staff is more general, and a prerequisite to privileging, in which a professional's specific scope of practice in a particular facility is defined.
13. Does implementation of this rule differ in Critical Access Hospitals?
No, implementation is the same.
In 2016, the CMS announced a final rule that permits the resident's physician in long term care facilities to delegate the ability to order therapeutic diets to qualified RDNs, consistent with state laws. The Academy supports this new rule that will provide residents with better health care and help facilities function more efficiently, and is committed to working with state affiliates to ensure state laws and regulations facilitate a delegated order-writing process. The Academy has developed tips for use in LTC facilities.
If a regulatory impediment or uncertainty about implementing this privilege exists, work with your affiliate policy leaders and PIA team to identify strategies for taking advantage of the new rule.
1. What does this final rule do and what is the difference between the hospital and the long term care rule?
The Long-Term Care Final Rule, published October 4, 2016, outlined that the attending physician may delegate prescribing a resident's diet to a qualified dietitian or other clinically qualified nutrition professional. The Final Rule stated the regulations will be rolled out in three phases, with some stipulations for food service director becoming effective gradually.
Long term care facilities do not have the same governance structure as hospitals, which can grant RDNs and qualified nutrition professionals independent order writing privileges if consistent with state laws. Therefore, the attending physician or designee must first delegate the authority to the RDN to manage the dietary order. Technically, the physician remains responsible for the diet order, although co-signing is not required, except by state law.
2. Who will be able to order therapeutic diets?
Under this rule, therapeutic diets are ordered by a physician, nurse practitioner, clinical nurse specialist, or physician assistant, but this task may be delegated to a "qualified dietitian or other clinically qualified nutrition professional." The medical professional retains responsibility for the order.
3. What is CMS' definition of "therapeutic diet" for long term care facilities?
In §483.25(g), CMS defined a therapeutic diet as "a diet ordered by a physician or other delegated provider that is part of the treatment for a disease or clinical condition, to eliminate, decrease, or increase certain substances in the diet (e.g., sodium or potassium), or to provide mechanically altered food when indicated."
4. Would this include the ordering of nutritional supplements, too?
RDNs should be able to order nutritional supplements for patients in accordance with state laws and regulations if the authority has been delegated by the attending physician or designee.
5. Are "qualified dietitians" the only professions that can be authorized by LTC facilities to write dietary orders by delegation from the attending physician? What is a "qualified dietitian"?
No. CMS defines the qualifications of the professionals who can write dietary orders by delegation as "qualified nutrition professionals", which could have a different meaning in different states. In Pennsylvania, for example, RD/RDNs and Certified Nutrition Specialists (CNS) are the professions permitted to write dietary orders by delegation.
In section §483.60, CMS defines "qualified dietitian" as "a qualified dietitian or other clinically qualified nutrition professional [providing services] either full-time, part-time, or on a consultant basis. A qualified dietitian or other clinically qualified nutrition professional is one who:
6. The Federal Register stated that the attending physician must be the one to delegate the authority for writing therapeutic diet orders to the qualified nutrition professional. Has there been clarification on whether another licensed independent professional can delegate this authority to the RDN?
In the "Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues" effective November 28, 2017, CMS provided further guidance on this issue as part of F808. In LTC facilities, the terms "attending physician" or "physician" also include a non-physician provider (physician assistant, nurse practitioner, or clinical nurse specialist) involved in the management of the resident's care."
7. Can the CMS rule change be implemented now without doing anything else?
No. In order to implement the rule change, each facility must approve of the implementation and determine exactly what services the qualified dietitian or qualified nutrition professional can provide. This needs to be in writing and agreed upon between the nutrition professional, medical director, nursing director, administration, and other decision makers at each facility.
8. Does the rule do anything else in addition to making this change in diet ordering?
Yes, the rule stipulates that a nutrition professional be formally included on the interdisciplinary Care Plan team, revises requirements for assisted nutrition and hydration, specifies the role of non-physician medical providers, and clarifies the need to accommodate residents' food preferences.
9. Why don't I see a map of state restrictions similar to the hospital rule?
Since few states specifically prohibit physicians from delegating orders, or prohibit RDNs from receiving such orders, such a map would have little value. We note that the primary limits are facility-based.
10. Our state does not license dietitians (or our state only certifies dietitians); does this rule change apply to RDs in our state?
The Academy believes that RDNs in states that do not currently license dietitians will be able to receive delegated authority to order patient diets in LTC facilities. The Academy does not expect any differences in such states.