Request By:
Paul F. Fauri, General Counsel
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You ask the following questions relating to the practice of midwifery, both lay midwifery and nursing midwifery:
"1. Does KRS 211.180(4) conflict with the statutes regulating the practice of medicine or of nursing? See KRS 311.550(9); KRS 314.011(6).
"2. Is 902 KAR 4:010 contrary to the statute under which it is issued, by requiring all new midwives to be licensed nurses? "
KRS 211.180(4) provides as follows:
"The department [department for human resources] shall enforce the rules and regulations adopted by the secretary for human resources for the regulation and control of the matters set out below and shall formulate, promote, establish and execute policies, plans and programs relating to all matters of public health, including but not limited to the following matters:
". . . .
"(4) The practice of midwifery, including the issuance of permits to and supervision of women who practice midwifery. " (Emphasis and additions supplied. )
We do not see where there is any conflict between the midwifery statute and the practice of medicine, because the Medical Practice Act itself in KRS 311.550(9) excludes midwifery from being considered the practice of medicine. KRS 311.550(9) provides in part:
"The 'practice of medicine or osteopathy' does not include . . . the practice of midwifery by women; provided, however, that KRS 311.550 to 311.620 [Medical Practice Act] shall not be construed as repealing the authority conferred on the department for human resources by KRS Chapter 211 to provide for the instruction, examination, licensing and regulation of all midwives through county health officers." (Emphasis and additions supplied. )
The Nurse Practice Act found in KRS Chapter 314, particularly KRS 314.011(6), defines "advanced registered nurse practitioner" as including a nurse midwife. Further, the Nursing Act in KRS 314.131(1) requires the Board of Nursing to register and designate those persons qualified to engage in advanced nursing practice. So, both the Department for Human Resources and the Board of Nursing require nurse midwives to register with their units of government. While we do not believe that KRS 211.180(4) conflicts with the quoted section of the Nurse Practice Act, we do believe that such sections are unnecessarily redundant. There is no need for two agencies to register and recognize the same group of people.
Historically, KRS 211.180(4) is an older statute and was enacted by the 1954 General Assembly in H.B. 222, Sec. 12. The Nurse Practice Act did not authorize advanced registered nurse practitioners until 1978. When the 1978 Act was passed, no amendment or repeal of KRS 211.180(4) occurred. So, both governmental entities register nurse midwives. Until this year (1982), a person could be a nurse midwife, issued a permit by the Department for Human Resources, and not be registered as an ARNP with the Board of Nursing (as long as that person did not hold herself out as an ARNP). However (including nurse midwives) without being registered with the Board of Nursing.
So, while by history and practice, the two agencies could have dual duties in regard to nurse midwives, there is no rational basis for such to continue after July 15, 1982. Perhaps, this could be settled by a governor's executive order transferring the function of registering nurse midwives from the Department for Human Resources to the Board of Nursing and avoid dual registration.
As to your second question, we do not see how DHR's regulation, 902 KAR 4:010 is contrary to KRS 211.180(4).
The statute is an authorizing one; it authorizes regulation of midwives and the issuance of permits. The regulation does that in a limited way. It has precluded the new issuance of permits to lay midwives who were not practicing one year before 1975 and who did not hold a permit from the former Department of Health. It has further limited lay midwifery to those who did practice one year prior to 1975 and did hold a valid permit from the former Department of Health if they have a recommendation from their local board of health certifying a need for such services (Section 5).
So, except for a very few individuals, there is, for all practical purposes, no recognized lay midwifery in Kentucky.
Again, we do not believe the regulation is contrary to the statute; it implements the statute in a very restrictive manner. If the regulation were questioned at all, it would be questioned on the rationale for restricting lay midwifery in Kentucky.
Undoubtedly, the Department for Human Resources could justify such restrictions for purposes of safety and health of its citizens on data available to it, such as the difference between infant mortality connected with lay midwife births and those connected with more skilled care.
In conclusion, we suggest that attempts be made in 1984 to amend KRS 211.180(4) or otherwise to prevent dual registration and to consider a governor's executive order in the interim transferring the registration function of nurse midwives solely to the Board of Nursing. When that is done, 902 KAR 4:010 will have to be revised limiting its application to lay midwives.