Arizona Court of Appeals Division One holds that an agency’s rules limiting the scope of midwifery practice were within the agency’s statutory authority.

In Arizona, statutes grant administrative agencies rulemaking authority.  Agencies cannot exceed that authority.  An agency cannot make a rule under a specific grant of rulemaking authority that exceeds the subject matter areas listed in the authorizing statute.  A.R.S. § 41-1030(C)(1).  Nor can an agency make a rule under a general grant of rulemaking authority to supplement a more specific grant of rulemaking authority.  A.R.S. § 41-1030(C)(2).

One agency, the Arizona Department of Health Services, has long had the general statutory authority to make rules regarding the licensing of midwives.  In 2012, the legislature enacted a statute directing the Department to “consider” adopting certain kinds of new rules, including rules “reducing the regulatory burden on midwives” and “revising the midwifery scope of practice.”  The statute also directed parties “interested in increasing the scope of practice of midwifery” to submit reports to the Department, after which the Department is required to establish an advisory committee to assist in rulemaking “related to midwifery scope of practice.”

After receiving two reports urging expansion of the scope of midwifery practice, the Department issued new rules that narrow the scope of midwifery practice.  A midwife challenged the new rules, arguing that, under the 2012 statute, the Department was authorized only to make rules “increasing” the scope of midwifery practice.  Thus, by narrowing the scope of practice, the Department exceeded its statutory authority.  The superior court dismissed her complaint. 

The Court of Appeals affirmed.  First, the 2012 statute does not require the Department to make any rules at all.  Rather, the Department must “consider” making rules.  Second, the only part of the 2012 statute that mentions “increasing” the scope of midwifery practice is found in the procedural requirement designed to give parties a voice in the rulemaking process.  That procedural requirement does not limit the Department’s discretion in determining the substance of any new rules.  Thus, the Department did not exceed its statutory authority by issuing rules narrowing the scope of practice.

Presiding Judge Johnsen delivered the opinion.  Judge Cruz and Judge Howe joined.