Cleckner v. Arizona Department of Health Services, 011019 AZAPP1, 1 CA-CV 17-0749

Docket Nº:1 CA-CV 17-0749
Opinion Judge:JOHNSEN, JUDGE
Party Name:WENDI CLECKNER, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF HEALTH SERVICES, et al., Defendants/Appellees.
Attorney:Law Office of Julie Gunnigle, PLLC, Scottsdale By Julie R. Gunnigle Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Aubrey Joy Corcoran Counsel for Defendants/Appellees
Judge Panel:Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Maria Elena Cruz and Judge Randall M. Howe joined.
Case Date:January 10, 2019
Court:Court of Appeals of Arizona
 
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WENDI CLECKNER, Plaintiff/Appellant,

v.

ARIZONA DEPARTMENT OF HEALTH SERVICES, et al., Defendants/Appellees.

No. 1 CA-CV 17-0749

Court of Appeals of Arizona, First Division

January 10, 2019

Appeal from the Superior Court in Maricopa County No. CV2015-053512 The Honorable John R. Hannah, Jr., Judge

Law Office of Julie Gunnigle, PLLC, Scottsdale By Julie R. Gunnigle Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix By Aubrey Joy Corcoran Counsel for Defendants/Appellees

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Maria Elena Cruz and Judge Randall M. Howe joined.

OPINION

JOHNSEN, JUDGE

¶1 A midwife appeals the superior court's dismissal of her complaint challenging rules the Arizona Department of Health Services issued regulating the practice of midwifery. We conclude the Department had authority to issue the rules and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Under Arizona law, anyone other than a registered nurse, a licensed physician or someone supervised by a physician usually must be licensed as a midwife to deliver a baby or to provide "health care related to pregnancy, labor, delivery and postpartum care of the mother and her infant." Ariz. Rev. Stat. ("A.R.S.") §§ 36-751 (2018), -752 (2018).[1] The legislature has granted the Department broad authority to "[d]efine and describe . . . the duties and limitations of the practice of midwifery [and] [a]dopt standards with respect to the practice of midwifery designed to safeguard the health and safety of the mother and child." A.R.S. § 36-755(B) (2018). In 1994, the Department issued detailed rules for the licensing of midwives, circumscribing the services a midwife may perform and imposing requirements for documenting and reporting patient information. See generally Ariz. Admin. Code ("A.A.C.") R9-16-101 to -117.

¶3 In 2012, after lobbying by the Arizona Association of Midwives, the legislature passed and the governor signed House Bill ("H.B.") 2247, which, in relevant part, provided as follows: A. On or before July 1, 2013, the [Department] shall consider adopting rules regarding midwifery that concern the following:

1. Reducing the regulatory burden on midwives who are licensed [by the Department] . . . and streamlining the regulation process.

2. Consistent with the requirements of title 36, chapter 6, article 7, Arizona Revised Statutes, revising the midwifery scope of practice pursuant to subsections B, C and D of this section.

B. Any party that is interested in increasing the scope of practice of midwifery must submit a report to the director of the [Department] that contains the following: 1. A definition of the problem and why an increase in the scope of practice is necessary.

2. The available evidence-based research that demonstrates that the interested current practitioners are competent to perform the proposed scope of practice.

3. The extent to which an increase in the scope of practice may harm the public.

C. On receipt of the report prescribed in subsection B of this section, the director shall appoint a midwifery scope of practice advisory committee to assist the director in adopting and amending rules related to midwifery scope of practice.

H.B. 2247, 2012 Ariz. Sess. Laws, ch. 93, § 1 (2d Reg. Sess.). The measure also provided that, upon receipt of a report proposing an increase in the scope of practice, the "scope of practice advisory committee" must hold a public meeting to receive comments and thereafter must make recommendations concerning "proposed rules relating to a change in the scope of practice." H.B. 2247 § 1(C) & (E). Finally, upon receipt of the advisory committee's recommendations, the Department "shall conduct a public...

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