Admin Law Agency YES! Agency NO! Think of an agency that we have to have and why Think of an agency that should be abolished and why Introduction Why Agencies? How and why agencies are created; How they exercise their powers to carry out their assigned duties; and How they are controlled. Every Level Federal State
Local Every Type Department Commission Service Bureau Office
Board Branch & Powers Executive But legislatively created Creation Constitution Statute Executive Action Creatures of statute Agencies Regulate private conduct (including through licensing);
Regulatory Distribute government benets; or Benet/ Social Welfare Provide public services, manage public land, or manage populations with a special relationship with the government (such as government employees). Caretaking/ Cultivating/ Utilities Many exhibit all three facets Powers Executive Interpreting
The scope of the agencys authority under the statute; The precise meaning of statutory language creating legal rights or imposing legal duties on the public; The legislative goals to be achieved; and The methods that the agency is to use to achieve those goals. Investigations Punitive (violations) Eligibility (benets) Prosecuting
Prosecutor Judge Judicial Adjudicate cases Legislative Rulemaking Inquiry Suppose a state legislature enacted a law that created a state agency to regulate tattoo parlors. Based on the description above of the various types of agency powers quasi-legislative, executive, and quasi-judicial please consider these questions: 1. How would you classify the agencys power to issue standards to ensure the
hygienic operation of tattoo parlors, such as standards regarding use of tattoo needles? 2. How would you classify the agencys power to inspect a particular tattoo parlor to determine if it is complying with the standards described in question 1? 3. How would you classify the agencys power to hold a trial-type hearing to determine whether a particular tattoo parlor has violated a standard described in question 1, and, if so, to impose a ne? Tattoo Parlor Tort Law Criminal Law Ban Tattoo Parlors Licensing/ Inspection/ Health Requirements Justifications for Administrative
Agencies Economic justications for regulation: Control of monopoly power (We dont like monopolies because monopolies arent price-competitive or responsive to customers.) Control excess prots (e.g., during war-time scarcity) Compensate for externalities (e.g., polluting industries impose a cost that the industry itself otherwise wouldnt bear except through nes or regulatory costs for, e.g., pollution control technology) Compensate for inadequate information (e.g., drug companies can be required by regulation to disclose side effects to consumers that the consumers otherwise would not easily be able to learn about by themselves) Inhibit excessive competition (to prevent eventual death of all competition except last competitor standing, who then becomes a monopoly) Unequal bargaining power (e.g., between large capitalists and workers) Non-economic justications:
Moral (e.g., gambling and liquor regulations) Tradition (e.g., preserving small, family-owned farms; historic preservation; cultural preservation) Political (e.g., campaign nance regulation) Aesthetic (e.g., zoning) Two questions: Does the agency have the power for its action? Has the agency failed to act where it has affirmative duty to do so? Agency Power: The Hierarchy of
Law U.S. Constitution Valid federal legislation Valid federal executive-branch laws (e.g., agency Valid federal common law Valid state constitution Valid state legislation Valid state executive-branch laws Valid state common law Private ordering rules/executive orders) Limits on Agency Power Internal Limits
External Limits Why is it important to know whether a limit is internal or external? Substantive Limits Procedural Limits Does it really matter whether a limit is substantive or procedural? Enforcing Limits on Agency Power Legislative Controls Executive Controls Judicial Review Agency Internal Controls Popular Controls Analysis of Administrative Law Questions
What am I looking for? Enabling statutes Agency-specic statutes Across-agency statutes Where should I look? Internet Other resources Timing IS everything. Statutes in chronological codication US Statutes State Session Law Statutes in permanent codications
US Code State Legal Code One Fish, Two Fish, Red Fish, Blue Fish Reading agency law: not a once and done proposition. What do I need to learn? Why was the legislation enacted? What does the agency look like in terms of composition and location?
What is the agency supposed to do? Do the courts play any role? Are other statutes relevant here? 54-5501. LEGISLATIVE PURPOSE AND INTENT. [Effective until July 1, 2024] CONTEXTUAL The legislature nds and declares that the practice of midwifery has been a part of the culture and tradition of Idaho since before pioneer days and that for personal, religious and economic reasons some Idaho citizens choose midwifery care. The purpose of this chapter is to preserve the rights of families to deliver their children in a setting of their choice, to provide additional maternity care options for Idahos families, to protect the public health, safety and welfare and to provide a mechanism to assure quality care.
54-5502. Definitions. [Effective until July 1, 2024] CONTEXTUAL As used in this chapter: (1) "Board" means the Idaho state board of midwifery. (3) "Certied professional midwife" or "CPM" means a person who is certied by the North American registry of midwives or any successor organization. (12) "NACPM essential documents" means the documents adopted by NACPM that identify the nature of and standards of practice for responsible midwifery practice. (13) "North American registry of midwives" or "NARM" means the international certication agency that establishes and administers certication for the CPM credential. (14) "Practice of midwifery" means providing maternity care for women and their newborns during the antepartum, intrapartum and postpartum periods. The postpartum period for both maternal and newborn care may not exceed six (6) weeks from the date of delivery.
54-5503. Board of midwifery created. [Effective until July 1, 2024] STRUCTURAL INFORMATION (1) There is hereby established in the department of self-governing agencies, bureau of occupational licenses, a board of midwifery. (2) The board shall consist of ve (5) members appointed by the governor, three (3) of whom shall be licensed pursuant to this chapter, one (1) of whom shall be a licensed physician who is board certied in either obstetrics/gynecology or family medicine, maintains current hospital privileges and has provided primary maternity care for at least twenty (20) births in the twelve (12) months prior to the appointment and one (1) of whom shall be a member of the public with an interest in the rights of consumers of midwifery services. (3) One (1) member of the initial board shall be appointed for a one (1) year term of office, one (1) member of the initial board shall be appointed for a two (2) year term of office, one (1) member of the initial board shall be appointed for a three (3) year term of office, one (1) member shall be appointed for a four (4) year term of office and one (1) member of the initial board shall be appointed for a ve (5) year term of office. Thereafter, the term of office for each board member shall be ve (5) years.
(4) In making appointments to the board, the governors selection shall not be limited to nominations he receives; however, consideration shall be given to recommendations made by the Idaho midwifery council and Idahoans for midwives. 54-5504. Board of midwifery powers and duties. [Effective until July 1, 2024] AGENCY RESPONSIBILITY The board shall have the authority and the responsibility to: (1) Receive applications for licensure, determine the qualications of persons applying for licensure, provide licenses to applicants qualied under this chapter and renew, suspend, revoke and reinstate licenses; (2) Establish and collect fees for examination of applicants, for licensure and for renewal of licenses; (3) Establish the minimum amount and type of continuing education to be required for each licensed midwife seeking renewal of the midwifes license; (4) Investigate complaints against persons who are licensed under this chapter; (5) Undertake, when appropriate, disciplinary proceedings and disciplinary action against persons licensed under this chapter;
(6) Promulgate and adopt rules, pursuant to chapter 52, title 67, Idaho Code, necessary to administer this chapter. To the degree they are consistent with this chapter, rules shall be consistent with the current job description for the profession published by NARM and consistent with standards regarding the practice of midwifery established by the NACPM or a successor organization; APA APPLICABILITY (7) Authorize, by written agreement, the bureau of occupational licenses to act as agent in its interest; and (8) Provide such other services and perform such other functions as are consistent with this chapter and necessary to fulll its responsibilities. 54-5505. Rulemaking. [Effective until July 1, 2024] BOARD DUTY/ RESTRICTIONS ON POWER/ LIMITS? (1) The rules adopted by the board shall: (a) Allow a midwife to obtain and administer, during the practice of midwifery, the following:
(i) Oxygen; (ii) Oxytocin and cytotec as postpartum antihemorrhagic agents; (iii) Injectable local anesthetic for the repair of lacerations that are no more extensive than second degree; (iv) Antibiotics to the mother for group b streptococcus prophylaxis consistent with guidelines of the United States centers for disease control and prevention; (v) Epinephrine to the mother administered via a metered dose auto-injector; (vi) Intravenous fluids for stabilization of the woman; (vii) Rho(d)immune globulin; (viii) Vitamin K; and
(ix) Eye prophylactics to the baby. (b) Prohibit the use of other legend drugs, except those of a similar nature and character as determined by the board to be consistent with the practice of midwifery; provided that, at least one hundred twenty (120) days advance notice of the proposal to allow the use of such drugs is given to the board of pharmacy and the board of medicine and neither board objects to the addition of such drugs to the midwifery formulary; (c) Dene a protocol for use by licensed midwives of drugs approved in paragraphs (a) and (b) of this subsection that shall include methods of obtaining, storing and disposing of such drugs and an indication for use, dosage, route of administration and duration of treatment; (d) Dene a protocol for medical waste disposal; and (e) Establish scope and practice standards for antepartum, intrapartum, postpartum and newborn care that shall, at a minimum: (i) Prohibit a licensed midwife from providing care for a client with a history of disorders, diagnoses, conditions or symptoms that include: 1. Placental abnormality; . 54-5506. Licensure penalty. [Effective until July 1, 2024] LIMITS? (1) The board shall grant a license to any person who submits a completed application, pays the required license fee
as established by the board and meets the qualications set forth in section 54-5507, Idaho Code. (2) All licenses issued under this chapter shall be for a term of one (1) year and shall expire on the birthday of the licensee unless renewed in the manner prescribed by rule. Except as set forth in this chapter, rules governing procedures and conditions for license renewal and reinstatement shall be in accordance with section 67-2614, Idaho Code. (3) It is a misdemeanor for any person to assume or use the title or designation "licensed midwife," "L.M." or any other title, designation, words, letters, abbreviations, sign, card or device to indicate to the public that such person is licensed to practice midwifery pursuant to this chapter unless such person is so licensed. Any person who pleads guilty to or is found guilty of a second or subsequent offense under this subsection (3) shall be guilty of a felony. (4) Except as provided in section 54-5508, Idaho Code, on and after July 1, 2010, it shall be a misdemeanor for any person to engage in the practice of midwifery without a license. Any person who pleads guilty to or is found guilty of a second or subsequent offense under this subsection (4) shall be guilty of a felony. 54-5507. Qualifications for licensure. [Effective until July 1, 2024] LIMITS?
(1) A person shall be eligible to be licensed as a midwife if the person: (a) Provides proof of current certication as a CPM by NARM or a successor organization; (b) Files a board approved application for licensure and pays the required fees; and (c) Provides documentation of successful completion of board approved MEAC accredited courses in pharmacology, the treatment of shock/IV therapy and suturing specic to midwives. (2) For any midwife who has been continuously practicing midwifery in Idaho for at least ve (5) years prior to July 1, 2009, the qualications for licensure in subsection (1)(a) of this section may be waived by the board if such midwife provides the following documentation to the board: (a) Primary attendance at seventy-ve (75) births within the past ten (10) years, ten (10) of which occurred in the two (2) years immediately preceding the application for licensure; and (b) In addition to the completion of the courses listed in subsection (1)(c) of this section, successful completion of board approved courses in CPR and neonatal resuscitation; and (c) Complete practice data for the two (2) years preceding the application for licensure, on a form provided by the board.
(3) Any midwife who wishes to qualify for the waiver provided in subsection (2) of this section shall apply for licensure and provide the required documentation before July 1, 2010. 54-5508. Exemptions. [Effective until July 1, 2024] LIMITATION ON EXTENT OF BOARDS JURISDICTION This chapter shall not apply to any of the following: (1) Certied nurse midwives authorized under the board of nursing to practice in Idaho, unless a certied nurse midwife chooses to become a licensed midwife. Certied nurse midwives who are licensed midwives shall be subject to the provisions of chapter 14, title 54, Idaho Code, as well as to the provisions of this chapter; (2) Student midwives in training under the direct supervision of licensed midwives as required by NARM; (3) A person, in good faith, engaged in the practice of the religious tenets of any church or religious act where no fee is contemplated, charged or received, whose license to practice midwifery has not been revoked and who has not plead guilty to or been found guilty of a felony for a violation of the provisions of section 54-5506, Idaho Code;
(4) A person administering a remedy, diagnostic procedure or advice as specically directed by a physician; (5) A person rendering aid in an emergency where no fee for the service is contemplated, charged or received; (6) A person administering care to a member of such persons family; (7) The practice of a profession by individuals who are licensed, certied or registered under other laws of this state and are performing services within the authorized scope of practice. 54-5509. Fees. [Effective until July 1, 2024] FUNDING SOURCE FOR AGENCY (1) All fees received under the provisions of this chapter shall be paid to the department of self-governing agencies, bureau of occupational licenses and deposited in the state treasury to the credit of the occupational licenses fund. All costs and expenses incurred under the provisions of this chapter shall be a charge against and paid from said fund. In no case may any salary, expense or other obligation of the board be charged against the general fund.
(2) The fee for licensure may not exceed one thousand dollars ($1,000). 54-5510. Client protection unprofessional conduct. [Effective until July 1, 2024] LIMIT A licensed midwife or applicant for licensure, renewal or reinstatement may not: (1) Disregard a clients dignity or right to privacy as to her person, condition, possessions or medical record; (2) Breach any legal requirement of condentiality with respect to a client, unless ordered by a court of law; (3) Submit a birth certicate known by the person to be false or fraudulent, or willfully make or le false or incomplete reports or records in the practice of midwifery; (4) Fail to provide information sufficient to allow a client to give fully informed consent; (5) Engage in the practice of midwifery while impaired because of the use of alcoholic beverages or drugs; and
(6) Violate any other standards of conduct as determined by the board in rules adopted for the regulation of the practice of midwifery. 54-5511. Disclosure and recordkeeping license renewal. [Effective until July 1, 2024] (1) Before initiating care, a licensed midwife shall obtain a signed informed consent agreement from each client, acknowledging receipt, at minimum, of the following:
(a) The licensed midwifes training and experience; (b) Instructions for obtaining a copy of the rules adopted by the board pursuant to this chapter; (c) Instructions for obtaining a copy of the NACPM essential documents and NARM job description; (d) Instructions for ling complaints with the board; (e) Notice of whether or not the licensed midwife has professional liability insurance coverage; (f) A written protocol for emergencies, including hospital transport that is specic to each individual client; (g) A description of the procedures, benets and risks of home birth, primarily those conditions that may arise during delivery; and (h) Any other information required by board rule. (2) All licensed midwives shall maintain a record of all signed informed consent agreements for each client for a minimum of nine (9) years after the last day of care for such client. (3) Before providing care for a client who has a history of disorders, diagnoses, conditions or symptoms identied in section 54-5505(1)(e)(ii), Idaho Code, the licensed midwife shall provide written notice to the client that the client shall obtain care from a physician licensed pursuant to chapter 18, title 54, Idaho Code, as a condition to her eligibility to obtain maternity care from the licensed midwife. Before providing care for a client who has a history of disorders, diagnoses, conditions or symptoms identied in section 545505(1)(e)(iii), Idaho Code, or who has had a previous cesarean section, the licensed midwife shall provide written notice to the client that the client is advised to consult with a
physician licensed pursuant to chapter 18, title 54, Idaho Code, during her pregnancy. The midwife shall obtain the clients signed acknowledgment of receipt of said notice. (4) Any licensed midwife submitting an application to renew a license shall compile and submit to the board complete practice data for the twelve (12) months immediately preceding the date of the application. Such information shall be provided in form and content as prescribed by rule of the board and shall include, but not be limited to: (a) The number of clients to whom care has been provided by the licensed midwife; (b) The number of deliveries performed by the licensed midwife; (c) The apgar scores of the infants delivered by the licensed midwife; (d) The number of prenatal transfers;
(e) The number of transfers during labor, delivery and immediately following birth; (f) Any perinatal deaths; and (g) Other morbidity statistics as required by the board. 54-5512. Immune from vicarious liability. [Effective until July 1, 2024] No physician, hospital, emergency room personnel, emergency medical technician or ambulance personnel shall be liable in any civil action arising out of any injury resulting from an act or omission of a licensed midwife, even if the health care provider has consulted with or accepted a referral from the licensed midwife. A physician who consults with a licensed midwife but who does not examine or treat a client of the midwife shall not be deemed to have created a physicianpatient relationship with such client. 54-5513. Severability. [Effective until
July 1, 2024] The provisions of this chapter are hereby declared to be severable and if any provision of this chapter or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this chapter. Federal APA Structure and purpose interrelated General purposes are: Ensure that public has access to information on how government operates Allow public participation in the rulemaking process Prescribe uniform procedures for conduct of hearings and rendering of decisions Authorize judicial review
Other APA Analysis Denitions Applicability Does APA (Federal or State) apply to THIS problem? APA denition of agency Agency legislation addressing applicability of APA to agency If APA applies, does it apply in whole or in part? APA provisions addressing various agency activities Agency legislation and rules addressing applicability of APA to agency action If APA applies, how does APA interact with other applicable laws?
Rulemaking and Adjudication Federal APA: Rule making: process for formulating, amending or repealing a rule Adjudication: process for the formulation of an order State APA: Order: action of particular applicability that determines legal rights, duties, privileges, immunities, or other legal interests of one or more specic persons. Rule: whole or part of a statement of general applicability that implements, interprets, or prescribes law or policy or the organizational requirements of an agency (includes amendment, repeal or suspension of an existing rule).
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