DAR File No. 44117
This rule was published in the November 1, 2019, issue (Vol. 2019, No. 21) of the Utah State Bulletin.
Commerce, Occupational and Professional Licensing
Rule R156-44a
Nurse Midwife Practice Act Rule
Notice of Proposed Rule
(Amendment)
DAR File No.: 44117
Filed: 10/07/2019 12:17:53 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The Certified Nurse Midwife Board recommends these proposed amendments to clarify and update this rule, and to add a fine for a Certified Nurse Midwife (CNM) who fails to provide an opiate prescription consultation in accordance with new Section 58-37-19 enacted by H.B. 191, passed in the 2019 General Session.
Summary of the rule or change:
In Section R156-44a-402, these proposed amendments replace the fine schedule language with a table, and add the following sanctions for failure to provide an opiate prescription consultation as required by Section 58-37-19: initial offense $250; second offense $500; third and subsequent offenses $1,000. In Subsection R156-44a-502(1), this proposed amendment updates the referenced "Code of Ethics" published by the American College of Nurse-Midwives to the new June 2015 edition. Subsection R156-44a-502(2) is a new subsection that adds to the list of unprofessional conduct for a CNM, failing to provide an opiate prescription consultation as required by Section 58-37-19.
Statutory or constitutional authorization for this rule:
- Subsection 58-1-106(1)(a)
- Subsection 58-1-202(1)(a)
- Section 58-44a-101
This rule or change incorporates by reference the following material:
- Updates Code of Ethics, published by American College of Nurse-Midwives, June 2015
Anticipated cost or savings to:
the state budget:
The fiscal note for H.B. 191 (2019) estimated that two prescribers annually would pay a fine of $500 to $1,000 for non-compliance, for aggregate revenue of approximately $1,500 annually. The fiscal note for H.B. 191 (2019) estimated the impact and it is available at: https://le.utah.gov/~2019/bills/static/HB0191.html. Any fines levied would be paid into the Certified Nurse Midwife Education and Enforcement Account. The Division of Occupational and Professional Licensing (Division) estimates that these proposed amendments may result in two additional investigations of violations or complaints at a cost of $300 each for a total of $600. These amendments are not expected to impact any existing state practices or procedures, and as described below in the analysis for small businesses and non-small businesses, the Division does not expect any state agencies that may be acting as employers of licensees to experience any measurable fiscal impacts. No other impact to the state is expected beyond a minimal cost to the Division of approximately $75 to disseminate this rule once these proposed amendments are made effective.
local governments:
The Division estimates that these proposed amendments will have no measurable impact on local governments. None of these amendments are expected to impact existing local governments' practices or procedures. Additionally, as described below in the analysis for small businesses and non-small businesses, the Division does not expect any local governments that may be acting as employers of licensees to experience any measurable fiscal impacts.
small businesses:
These proposed amendments will regulate CNMs practicing in Utah, which may indirectly affect the estimated 22 small businesses in Utah comprising establishments of licensed CNMs or who employ CNMs, such as private or group practices, clinics, hospitals, private mental health practices or medical centers (NAICS 621399, 621498, 621111). However, these amendments are not expected to result in any measurable fiscal impact to small businesses. First, the amendments only impose a penalty for noncompliance with Utah Code requirements, and the practices of most small businesses are, or should be, already consistent with existing requirements. Second, these amendments will only affect licensees who violate the statute and are sanctioned, and as described below for other persons, for the typical licensee these amendments will have no fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most small businesses will never be impacted. Finally, although a small business employing a licensee who is sanctioned may face indirect financial costs, it is impossible to estimate what those costs might be because any such violations are unforeseeable, and because any indirect costs that a small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer, and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.
persons other than small businesses, businesses, or local governmental entities:
There are approximately 180 licensed CNMs who may be affected by these proposed amendments. No measurable fiscal impact to these persons are expected. First, these amendments will only affect licensees who violate the statute(s) and are sanctioned, so that most licensees will never be impacted. These amendments only impose a penalty for noncompliance with existing Utah Code requirements, and the practices of most licensees are, or should be, already consistent with existing professional practice requirements. Further, the goal of this rule is to provide a deterrent, such that there is a $0 net impact on all parties involved and minimal occasions to sanction a licensee for noncompliance. Therefore for the typical licensee these amendments are expected to have no direct or indirect fiscal impact. Second, although a licensee who is sanctioned may experience a fiscal impact, it is impossible to estimate what such costs might be with any accuracy at present, both because they would apply only in cases of unforeseeable violations, and because any potential costs would depend on the unique characteristics and actions of each individual licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.
Compliance costs for affected persons:
As described above for other person, the Division does not anticipate any compliance costs for any affected person from these proposed amendments.
Comments by the department head on the fiscal impact the rule may have on businesses:
These proposed amendments replace the fine schedule language with a table. These amendments clarify and update this rule, and add a fine for a CNM who fails to provide an opiate prescription consultation in accordance with new Section 58-37-19, enacted by H.B. 191 (2019). These proposed amendments update the referenced "Code of Ethics" published by the American College of Nurse-Midwives to the more recent June 2015 edition. Finally, the amendments add to the list of unprofessional conduct for a CNM, the failure to provide an opiate prescription consultation as required by Section 58-37-19. Small Businesses (less than 50 employees): These proposed amendments will regulate CNMs practicing in Utah, which may indirectly affect the estimated 22 small businesses in Utah comprising establishments of licensed CNMs or who employ CNMs, such as private or group practices, clinics, hospitals, private mental health practices, or medical centers (NAICS 621399, 621498, 621111). However, these amendments are not expected to result in any measurable fiscal impact to small businesses. First, these amendments only impose a penalty for noncompliance with Utah Code requirements, and the practices of most small businesses are, or should be, already consistent with existing requirements. Second, these amendments will only affect licensees who violate the statute and are sanctioned. For the typical licensee, these amendments will have no fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most small businesses will never be impacted. Finally, although a small business employing a licensee who is sanctioned may face indirect financial costs, it is impossible to estimate what those costs might be because any such violations are unforeseeable, and because any indirect costs that a small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive. Regulatory Impact to Non-Small businesses (50 or more employees): These proposed amendments will regulate CNMs practicing in Utah, which may indirectly affect the estimated 10 non-small businesses in Utah comprising establishments of CNMs or who employ CNMs, such as private or group practices, hospitals, or medical centers (NAICS 621498 and 621111). However, these proposed amendments are not expected to result in any measurable fiscal impact for non-small businesses for the same reasons as described above for small businesses. They are either inestimable, for the reasons stated, or there is no fiscal impact.
Francine A. Giani, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:
CommerceOccupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316
Direct questions regarding this rule to:
- Jeff Busjahn at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at jbusjahn@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:
12/02/2019
Interested persons may attend a public hearing regarding this rule:
- 11/06/2019 10:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 475 (fourth floor), Salt Lake City, UT
This rule may become effective on:
12/09/2019
Authorized by:
Mark Steinagel, Director
RULE TEXT
Appendix 1: Regulatory Impact Summary Table*
|
Fiscal Costs |
FY 2020 |
FY 2021 |
FY 2022 |
|
State Government |
$675 |
$600 |
$600 |
|
Local Government |
$0 |
$0 |
$0 |
|
Small Businesses |
$0 |
$0 |
$0 |
|
Non-Small Businesses |
$0 |
$0 |
$0 |
|
Other Person |
$0 |
$0 |
$0 |
|
Total Fiscal Costs: |
$675 |
$600 |
$600 |
|
|
|
|
|
|
Fiscal Benefits |
|
|
|
|
State Government |
$1,500 |
$1,500 |
$1,500 |
|
Local Government |
$0 |
$0 |
$0 |
|
Small Businesses |
$0 |
$0 |
$0 |
|
Non-Small Businesses |
$0 |
$0 |
$0 |
|
Other Persons |
$0 |
$0 |
$0 |
|
Total Fiscal Benefits: |
$1,500 |
$1,500 |
$1,500 |
|
|
|
|
|
|
Net Fiscal Benefits: |
$825 |
$900 |
$900 |
*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.
Appendix 2: Regulatory Impact to Non-Small Businesses
These proposed amendments will regulate CNMs practicing in Utah, which may indirectly affect the estimated 10 non-small businesses in Utah comprising establishments of CNMs, or who employ CNMs, such as private or group practices, hospitals, or medical centers (NAICS 621498 and 621111). However, these proposed amendments are not expected to result in any measurable fiscal impact for non-small businesses. First, these amendments only impose a penalty for noncompliance with the Utah Code requirements, and the practices of most non-small businesses are, or should be, already consistent with existing requirements. Second, these amendments will only affect licensees who violate the statute and are sanctioned, and as described above for other persons, for the typical licensee these amendments will have no fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most non-small businesses will never be impacted. Finally, although a non-small business employing a licensee who is sanctioned may face indirect financial costs, it is impossible to estimate what those costs might be because any such violations are unforeseeable, and because any indirect costs that a non-small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer, and the individual characteristics and actions of each licensee. The relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.
The head of the Department of Commerce, Francine Giani, has reviewed and approved this fiscal analysis.
R156. Commerce, Occupational and Professional Licensing.
R156-44a. Nurse Midwife Practice Act Rule.
R156-44a-402. Administrative Penalties.
In accordance with Subsections
58-44a-102(1)
, [and ]58-44a-402(1),
and 58-44a-503(3), unless otherwise ordered by the presiding
officer, the following fine schedule shall apply[.]:
TABLE
FINE SCHEDULE
VIOLATION FIRST OFFENSE SUBSEQUENT OFFENSE
58-44a-501(1) $ 2,000 - $ 5,000 $ 5,000 - $10,000
58-44a-501(2) $ 100 - $ 500 $ 200 - $ 1,000
58-44a-501(3) $ 100 - $ 500 $ 200 - $ 1,000
58-44a-501(4) $ 2,000 - $ 5,000 $ 5,000 - $10,000
58-44a-502(1) $ 100 - $ 500 $ 200 - $ 1,000
58-44a-502(2) $ 500 - $ 2,000 $ 2,000 - $10,000
58-44a-502(3) $ 500 - $ 2,000 $ 2,000 - $10,000
58-44a-502(4) $ 100 - $ 500 $ 200 - $ 1,000
58-44a-502(5) $ 200 - $ 1,000 $ 500 - $ 2,000
58-44a-502(6) Double the original penalty amount,
up to $10,000
58-44a-502(7) $ 500 - $ 1,000 $ 500 - $ 1,000
58-44a-502(8)(a) $ 500 - $ 1,000 $ 500 - $ 2,000
58-44a-502(8)(b) $ 500 - $ 1,000 $ 500 - $ 2,000
58-1-501(1)(b) $ 500 - $ 2,000 $ 2,000 - $10,000
58-1-501(1)(c) $ 500 - $ 1,000 $ 1,000 - $ 5,000
58-1-501(1)(d) $ 500 - $ 1,000 $ 1,000 - $ 5,000
58-1-501(1)(e) $ 500 - $ 2,000 $ 2,000 - $10,000
58-1-502(2)(a) $ 500 - $ 2,000 $ 2,000 - $10,000
58-1-502(2)(b) $ 500 - $ 2,000 $ 2,000 - $10,000
58-1-502(2)(c) $ 500 - $ 2,000 $ 2,000 - $10,000
58-1-502(2)(d) $ 100 - $ 500 $ 200 - $ 1,000
58-1-502(2)(e) $ 100 - $ 500 $ 200 - $ 1,000
58-1-502(2)(f) $ 100 - $ 500 $ 200 - $ 1,000
58-1-502(2)(g) $ 500 - $ 2,000 $ 2,000 - $10,000
58-1-502(2)(h) $ 100 - $ 500 $ 200 - $ 1,000
58-1-502(2)(i) $ 100 - $ 500 $ 200 - $ 1,000
58-1-502(2)(j) $ 100 - $ 500 $ 200 - $ 1,000
58-1-502(2)(k) $ 100 - $ 500 $ 200 - $ 1,000
R156-44a-502(1) $ 100 - $ 500 $ 200 - $ 1,000
R156-44a-502(2) $ 250 $ 500 - $ 1,000
Ongoing offense(s) $ 1,000 per day but not less than the
second offense.
Any other conduct which constitutes unprofessional or
unlawful conduct: $ 100 - $ 500 $ 200 - $ 1,000
[(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 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
(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 :
(1) failure to abide by the "Code of Ethics"
published by the American College of Nurse-Midwives, [October 2008]June 2015, which is hereby adopted and incorporated by
reference;
(2) failing to discuss the risks of using an opiate with a patient or the patient's guardian before issuing an initial opiate prescription, in accordance with Section 58-37-19.
KEY: licensing, midwifery, certified nurse midwife
Date of Enactment or Last Substantive Amendment: [May 11, 2015]2019
Notice of Continuation: August 28, 2018
Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-44a-101
Additional Information
More information about a Notice of Proposed Rule is available online.
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For questions regarding the content or application of this rule, please contact Jeff Busjahn at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at jbusjahn@utah.gov. For questions about the rulemaking process, please contact the Office of Administrative Rules.