No. ( 1978 )

Anne M. Gough, R.N. Executive Director Colorado Board of Nursing 136 State Services Building 1525 Sherman Street Denver, Colorado 80203

Dear Mrs. Gough:

I am in receipt of your letter of February 6, 1978 in which you request an opinion concerning who is responsible for defining the practice of midwifery in Colorado with the passage of H.B. 1526 in the 1977 Session.

QUESTION PRESENTED AND CONCLUSION

Is the Board of Nursing or the Board of Medical Examiners authorized to promulgate rules defining the practice of midwifery?

The Board of Medical Examiners has the primary responsibility for the regulation of midwifery, including defining the scope of practice. The Board of Nursing has authority to promulgate rules regarding licensing.

ANALYSIS

To answer your question, it is important to analyze the amendments, passed in 1977, concerning nurse midwifery which are found in the 1977 Session Laws, Chapter 154, page 684. That amendment provides:

Section 1. 12-36-106(3), Colorado Revised Statutes 1973, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

12-36-106. Practice of medicine defined — exemptions from licensing requirements. (3)(n) The rendering of services by a nurse-midwife certified by the American college of nurse-midwives, whose services are performed pursuant to the responsible direction, supervision, and protocols of an identified and personally responsible physician and who is licensed pursuant to part 2 of article 38 of this title and in concurrence with the state board of medical examiners. The medical services of certified nurse-midwives shall be limited to those normally and routinely delivered by the supervisory physician or physicians.

Section 2. 12-36-106(1)(f), Colorado Revised Statutes 1973, is amended to read: 12-36-106. Practice of medicine defined — exemptions from licensing requirements. (1)(f) The practice of midwifery EXCEPT SERVICES RENDERED BY NURSE-MIDWIVES LICENSED PURSUANT TO PART 2 OF ARTICLE 38 OF THIS TITLE AND CERTIFIED BY THE AMERICAN COLLEGE OF NURSE-MIDWIVES.

It is clear from the above amendment that:

1. Nurse-midwives must be certified by the American College of Nurse-Midwives;

2. Nurse-midwife services must be performed pursuant to the responsible direction, supervision and protocol of an identified and personally responsible physician;

3. Nurse-midwives are required to be professional nurses licensed pursuant to part 2 of article 38 of title 12, C.R.S. 1973; and,

4. Nurse-midwife medical services shall be limited to those normally and routinely delivered by the supervisory physician or physicians and in concurrence with the State Board of Medical Examiners.

It appears from H.B. 1526 that the legislature intended the Board of Medical Examiners to have the primary responsibility for the regulation of nurse-midwifery. It is also quite evident that the legislature intended to define the scope of nurse-midwifery in the statute as those medical services normally and routinely delivered by the supervisory physician or physicians. Thus, there appears no room for the Board of Nursing to go beyond that definition through rule-making.

However, there does appear to be room for the Board of Nursing to provide for rule-making in the area having to do with licensing. The Board could promulgate rules concerning the authenticity of credentials for the individual who intends to practice as a nurse-midwife.

Before commencing rule-making procedures in this area, I would suggest that you confer with Gary Blum or Ken Fish concerning the details of the rules that the Board may think necessary to carry out its statutory duties in this area. They may have some suggestions on how to best formulate such rules.

SUMMARY

The Board of Medical Examiners is primarily responsible for defining and regulating the scope and practice of midwifery; however, the Board of Nursing has some authority over nurse-midwives in the area of licensing.

Very truly yours,

J.D. MacFARLANE Attorney General

PHYSICIANS AND SURGEONS MEDICAL PRACTITIONERS, LIMITED NURSES, REGISTERED

C.R.S. 1973, 12-36-106(3)(n) C.R.S. 1973, 12-36-106(1)(f)

REGULATORY AGENCIES, DEPT. Nursing, Bd. of

The Board of Medical Examiners is primarily responsible for defining and regulating the scope and practice of midwifery; however, the Board of Nursing has some authority over nurse-midwives in the area of licensing.