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Cleckner v. Arizona Department of Health Services

Court of Appeals of Arizona, First Division

January 10, 2019

WENDI CLECKNER, Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF HEALTH SERVICES, et al., Defendants/Appellees.

          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 ...


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