Commerce, Occupational and Professional Licensing

Rule R156-44a

Nurse Midwife Practice Act Rules

Notice of Proposed Rule

(Amendment)

DAR File No.: 37071
Filed: 11/20/2012 01:44:10 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

During the 2012 Legislative General Session, H.B. 190 was passed, clearly enabling midwives to practice without the necessity of a physician's signature on a practice and referral plan. Although not required by statute or rule, the signature line on the Division (DOPL)-generated "Practice and Referral Plan" form triggered some midwives, physicians, and employers to require a physician's signature in order for the midwife to practice and obtain hospital privileges. This perceived requirement caused great difficulty and hardship for midwives, particularly in rural areas, because they were unable to engage physicians to sign the form and had to then quit practicing as midwives. Some physicians assumed that by signing the "Practice and Referral Plan" form they would be accepting liability for the midwife's practice. Not wanting to accept liability for a midwife's actions, many physicians understandably declined to sign the "Practice and Referral Plan" form. H.B. 190 incorporated and defined the term, "Intrapartum Referral Plan." This bill also amended the unprofessional conduct provisions, necessitating the assignment of administrative penalties, which this rule filing does. Other amendments are made at the request of the Certified Nurse Midwife Board to update referenced documents and the accrediting body's correct name.

Summary of the rule or change:

Throughout the rule, "these rules" is updated to "this rule" and the term "Division" is capitalized where appropriate. Subsection R156-44a-102(1) is updated to reflect the correct name of the accreditation body affiliated with the American College of Nurse-Midwives. Subsection R156-44a-102(5) updates the most current editions of the "Core Competencies for Basic Midwifery Practice" and the "Standards for the Practice of Midwifery". Subsection R156-44a-102(6) is being added to clearly state that the signature of a physician is not required on the "Intrapartum Referral Plan", reflecting the mandate of H.B. 190 in Subsections 58-44a-102(6) and (9). Subsections R156-44a-402(27) and (28) are added to reflect administrative penalties for failing to have and maintain a safe mechanism for obtaining medical consultation, collaboration, and referral with a consulting physician; and for falsely representing that the certified nurse midwife does have and maintains a safe mechanism for obtaining medical consultation, collaboration, and referral with a consulting physician. Section R156-44a-502 updates the "Code of Ethics" published by the American College of Nurse-Midwives.

State statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Section 58-44a-101
• Subsection 58-1-202(1)(a)

This rule or change incorporates by reference the following material:

• Updates Core Competencies for Basic Midwifery Practice, published by American College of Nurse-Midwives (ACNM), June 2012
• Updates Standards for the Practice of Midwifery, published by American College of Nurse-Midwives, September 2011
• Updates Code of Ethics, published by American College of Nurse-Midwives, October 2008

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $100 to print and distribute the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget.

local governments:

The proposed amendments only apply to licensed certified nurse midwives and applicants for licensure in that classification. As a result, the proposed amendments do not apply to local governments.

small businesses:

The proposed amendments may enable solo practitioners who are licensed as a certified nurse midwife or small group midwifery practices, particularly in rural Utah, who have not been able to practice due to the signature "requirement", to once again begin providing services to Utah citizens. Additionally, new certified nurse midwife graduates will be more likely to stay in Utah to practice and will not have to contend with the "practice and referral plan" signature that became a barrier to practice. The Division is unable to reasonably quantify any costs or savings associated with these proposed amendments.

persons other than small businesses, businesses, or local governmental entities:

The proposed amendments may allow Utah citizens to obtain obstetrical and women's health care from certified nurse midwives at reduced cost when compared to physician practice costs. Health care systems may be able to provide more and expanded services to women, particularly in rural areas, with the addition of certified nurse midwives to their provider panels. Physicians will be more likely to serve as consultants and referral sources for practicing certified nurse midwives now that they do not have to sign a document that was perceived as accepting liability for a midwife's practice. The Division is unable to reasonably quantify any costs or savings associated with these proposed amendments.

Compliance costs for affected persons:

The proposed amendments may enable solo practitioners who are licensed as a certified nurse midwife or small group midwifery practices, particularly in rural Utah, who have not been able to practice due to the signature "requirement", to once again begin providing services to Utah citizens. Additionally, new certified nurse midwife graduates will be more likely to stay in Utah to practice and will not have to contend with the "practice and referral plan" signature that became a barrier to practice. The proposed amendments may allow Utah citizens to obtain obstetrical and women's health care from certified nurse midwives at reduced cost when compared to physician practice costs. Health care systems may be able to provide more and expanded services to women, particularly in rural areas, with the addition of certified nurse midwives to their provider panels. Physicians will be more likely to serve as consultants and referral sources for practicing certified nurse midwives now that they do not have to sign a document that was perceived as accepting liability for a midwife's practice. The Division is unable to reasonably quantify any costs or savings associated with these proposed amendments. There is also no cost associated with obtaining updated documents which are incorporated by reference as the documents are available for free on the American College of Nurse-Midwives website.

Comments by the department head on the fiscal impact the rule may have on businesses:

The proposed amendments update terminology and statutory references, clarify that a physician's signature is not required as part of an intrapartum referral plan, and outline administrative penalties that may be assessed to a nurse midwife who fails to create a plan or who falsely represents to the Division that a plan is in place. Intrapartum referral plans were mandated by the Legislature in the 2012 General Session (H.B. 190). All compliance and enforcement costs were considered by the Legislature in passing the bill. No additional costs to small businesses are anticipated from this rule filing.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Debra Hobbins at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at dhobbins@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/14/2013

Interested persons may attend a public hearing regarding this rule:

• 01/09/2013 02:00 PM, Heber Wells Bldg, 160 E 300 S, Conference Room 475, Salt Lake City, UT

This rule may become effective on:

01/21/2013

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-44a. Nurse Midwife Practice Act Rule[s].

R156-44a-101. Title.

Th[ese]is rule[s are] is known as the "Nurse Midwife Practice Act Rule[s]."

 

R156-44a-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 44a, as used in Title 58, Chapters 1 and 44a or th[ese]is rule[s]:

(1) "Approved certified nurse midwifery education program" means an educational program which is accredited by the American Midwifery Certification Board (AMCB), affiliated with the American College of Nurse -Midwives (ACNM).

(2) "CNM" means a certified nurse midwife.

(3) "Delegation" means transferring to an individual the authority to perform a selected nursing task in a selected situation. The nurse retains accountability for the delegation.

(4) "Direct supervision" as used in Section 58-44a-305 means that the person providing supervision shall be available on the premises at which the supervisee or consultee is engaged in practice.

(5) "Generally recognized scope and standards of nurse midwifery" means the scope and standards of practice set forth in the "Core Competencies for Basic Midwifery Practice", [May 2002]June 2012, and the "Standards for the Practice of Midwifery", [March 2003]September 2011, published by the American College of Nurse -Midwives which are hereby adopted and incorporated by reference, or as established by the professional community.

(6) "Intrapartum referral plan":

(a) is as defined in Section 58-44a-102; and

(b) as provided in Section 58-44a-102, does not require the signature of a physician.

([6]7) "Supervision" in Section R156-44a-601 means the provision of guidance or direction, evaluation and follow up by the certified nurse midwife for accomplishment of tasks delegated to unlicensed assistive personnel or other licensed individuals.

([7]8) "Unprofessional conduct," as defined in Title 58, Chapters 1 and 44a, is further defined in Section R156-44a-502.

 

R156-44a-103. Authority - Purpose.

Th[ese]is rule[s are] is adopted by the [d]Division under the authority of Subsection 58-1-106(1)(a) to enable the [d]Division to administer Title 58, Chapter 44a.

 

R156-44a-303. Renewal Cycle - Procedures.

(1) In accordance with Subsection 58-1-308(1), the renewal date for the two-year renewal cycle applicable to licensees under Title 58, Chapter 44a is established by rule in Section R156-1-308 a(1).

(2) Renewal procedures shall be in accordance with Section R156-1-308 c.

(3) Each applicant for licensure renewal shall hold a valid certification from the American Midwifery Certification Board, Inc.

 

R156-44a-402. Administrative Penalties.

In accordance with Subsections 58-44a-102(1) and 58-44a-402(1), unless otherwise ordered by the presiding officer, the following fine schedule shall apply.

(1) Engaging in practice as a CNM or RN when not licensed or exempt from licensure: initial offense: $2,000 - $5,000

subsequent offense(s): $5,000 - $10,000

(2) Representing oneself as a CNM or RN when not licensed:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(3) Using any title that would indicate that one is licensed under this chapter:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(4) Practicing or attempting to practice nursing without a license or with a restricted license:

initial offense: $2,000 - $5,000

subsequent offense(s): $5,000 - $10,000

(5) Impersonating a licensee or practicing under a false name:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(6) Knowingly employing an unlicensed person:

initial offense: $500 - $1,000

subsequent offense(s): $1,000 - $5,000

(7) Knowingly permitting the use of a license by another person:

initial offense: $500 - $1,000

subsequent offense(s): $1,000 - $5,000

(8) Obtaining a passing score, applying for or obtaining a license, or otherwise dealing with the [d]Division or board through the use of fraud, forgery, intentional deception, misrepresentation, misstatement, or omission:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(9) Violating or aiding or abetting any other person to violate any statute, rule, or order regulating nurse midwifery:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(10) Violating, or aiding or abetting any other person to violate any generally accepted professional or ethical standard:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(11) Engaging in conduct that results in convictions or, or a plea of nolo contendere to a crime of moral turpitude or other crime:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(12) Engaging in conduct that results in disciplinary action by any other jurisdiction or regulatory authority:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(13) Engaging in conduct, including the use of intoxicants, drugs to the extent that the conduct does or may impair the ability to safely engage in practice as a CNM:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(14) Practicing or attempting to practice as a CNM when physically or mentally unfit to do so:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(15) Practicing or attempting to practice as a CNM through gross incompetence, gross negligence, or a pattern of incompetency or negligence:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(16) Practicing or attempting to practice as a CNM by any form of action or communication which is false, misleading, deceptive, or fraudulent:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(17) Practicing or attempting to practice as a CNM beyond the individual's scope of competency, abilities, or education:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(18) Practicing or attempting to practice as a CNM beyond the scope of licensure:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(19) Verbally, physically, mentally, or sexually abusing or exploiting any person through conduct connected with the licensee's practice:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(20) Disregarding for a patient's dignity or right to privacy as to his person, condition, possessions, or medical record:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(21) Engaging in an act, practice, or omission which does or could jeopardize the health, safety, or welfare of a patient or the public:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(22) Failing to confine one's practice to those acts permitted by law:

initial offense: $500 - $2,000

subsequent offense(s): $2,000 - $10,000

(23) Failure to file or impeding the filing of required reports:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

(24) Breach of confidentiality:

initial offense: $200 - $1,000

subsequent offense(s): $500 - $2,000

(25) Failure to pay a penalty:

Double the original penalty amount up to $10,000

(26) Prescribing a Schedule II-III controlled substance without a consulting physician or outside of a consultation and referral plan:

initial offense: $500 - $1,000

subsequent offense(s): $500 - $2,000

(27) Failure to have and maintain a safe mechanism for obtaining medical consultation, collaboration, and referral with a consulting physician, including failure to identify one or more consulting physicians in the written documents required by Subsection 58-44a-102(9)(b)(iii):

initial offense: $500 - $1,000

subsequent offense(s): $500 - $2,000

(28) Representing that the certified nurse midwife is in compliance with Subsection 58-44a-502(8)(a) when the certified nurse midwife is not in compliance with Subsection 58-44a-502(8)(a):

initial offense: $500 - $1,000

subsequent offense(s): $500 - $2,000

([27]29) Any other conduct which constitutes unprofessional or unlawful conduct:

initial offense: $100 - $500

subsequent offense(s): $200 - $1,000

 

R156-44a-502. Unprofessional Conduct.

"Unprofessional conduct" includes failure to abide by the "Code of Ethics " [of]published by the American College of Nurse-Midwives["], [December 2004, published by the American College of Nurse Midwives]October 2008, which is hereby adopted and incorporated by reference.

 

KEY: licensing, midwifery, certified nurse midwife

Date of Enactment or Last Substantive Amendment: [January 5, 2006]2013

Notice of Continuation: February 5, 2009

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-44a-101