Administrative Rule Review Report  #AR11-044

Legislative Service Office

29-Aug-11

 

AGENCY:                                       Board of Midwifery

 

DATE SUBMITTED:                     8/24/2011

 

SUBJECT:                                       Chapter 5, Fees; and Chapter 7, Professional Responsibility.

 

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.

 

SUMMARY OF RULES:      The Board of Midwifery was established by 2010 Wyoming Laws, Chapter 46, with licensure of midwives authorized to commence July 1, 2011.  In February, 2011, the Board adopted initial rules for its operations and licensure of midwives (Rule Review Report AR11-006), however the Governor, upon recommendation of Council, vetoed those rules to the extent they provided for establishment of fees by later Board action rather than by rule as required by W.S. 33-46-108 and W.S. 33-1-201(a)(i).[1]

 

These rules establish fees for the Board's licensing activities (replacing emergency rules adopted after the Governor's line item veto).  The Board is also amending its February, 2011 rule to clarify that a licensed midwife must facilitate the immediate transfer of a patient to a hospital for emergency care after the rupture of membranes unless delivery is imminent.

 

FINDINGS:    These rules purport to establish fees, and this version has deleted the "not to exceed" language of the prior rules.  However, the rules at Chapter 5, Section 1, continue to include the statement, "Actual fees charged shall be adopted in the minutes of the Board and shall be readily available to the public."  This would appear to still violate W.S. 33-1-201(a)(i).  If the intent is to treat the published fees as not-to-exceed levels, then the provision may also violate W.S. 33-1-201(ii) by establishing fees in excess of actual administrative costs.

 

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 the above-quoted sentence 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.

 

 

                                                                        _______________________

                                                                        Gerald W. Laska

                                                                        Staff Attorney

 

 

                                                                        _______________________

                                                                        David K. Gruver

                                                                        Assistant Director

 

 

 

 

GWL



[1] 33-1-201.  Fees generally.

(a)  Except as otherwise specifically provided by statute, a board or commission authorized to establish examination, inspection, permit or license fees for any profession or occupation regulated under this title or under title 23 shall establish those fees in accordance with the following:

(i)  Fees shall be established by rule or regulation promulgated in accordance with the Wyoming Administrative Procedure Act;

(ii)  Fees shall be established in an amount to ensure that, to the extent practicable, the total revenue generated from the fees collected approximates, but does not exceed, the direct and indirect costs of administering the regulatory provisions required for the profession or occupation under this title;

(iii)  The board or commission shall maintain records sufficient to support the fees charged.