Administrative Rule Review Report  #AR11-006

Legislative Service Office

08-Mar-11

AGENCY: Board of Midwifery.

DATE SUBMITTED: February 9, 2011.

SUBJECT: Chapters 1 through 9, Appendices A and B, Board of Midwifery.

NATURE OF RULES:                     Legislative and procedural.

STATUTORY AUTHORITY:         W.S. 33-46-103(j)

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.  Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28-9-103(d). No comments have been received to date.

SUMMARY OF RULES: The Board of Midwifery was established by 2010 Wyoming Laws Chapter 46. Licensure of midwives is authorized to commence July 1, 2011.  These new rules :

• Provide for the Board of Midwifery's organization, structure and procedures;

• Specify  licensing, education and experience requirements for midwives;

• Provide license application and renewal procedures and fees;

• Adopt complaint and disciplinary procedures and a code of ethics;

• List the medical conditions which midwives are not authorized to treat, conditions which require a midwife to recommend physician involvement and conditions for which a midwife must facilitate hospital transfer;

• Itemize the medications that midwives may obtain and administer;

• Adopt the practice standards of the National Association of Certified Professional Midwives.

FINDINGS:  Chapter 5 of the rules purport to adopt a fee schedule for Board services.  However, the rules establish a “maximum” fee, and provide that “[a]ctual fees charged shall be adopted in the minutes of the Board….” (Chapter 5, Section 1).

The Midwives Licensure Act at W.S. 33-46-108 authorizes the Board to “…establish fees in accordance with W.S. 33-1-201….”  W.S. 33-1-201(a)(i), in turn,  provides that a board’s “[f]ees shall be established by rule or regulation promulgated in accordance with the Wyoming Administrative Procedure Act.”  By providing that actual fees will be established by the Board of Midwifery in its meeting minutes, these rules appear to violate both of the above statutory provisions.

Except as noted above, the rules appear to be within the scope of statutory authority and legislative intent.

STAFF RECOMMENDATION:  That the Council recommend that the Governor veto Chapter 5, Section 1 of the rules or rescind the rules and direct the Board of Midwifery to amend the rules in accord with W.S. 33-46-108 and 33-1-201.

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Gerald W. Laska

Staff Attorney

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Lynda G. Cook

Staff Attorney

GWL/