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Committee rejects extension of Board of Nursing rule that referenced American College of Nurse Midwives standards
Summary
The Committee on Legal Services voted not to extend State Board of Nursing Rule 1.28K1, finding the rule failed to meet Colorado's incorporation-by-reference requirements for adopting outside standards related to certified midwife scope of practice.
The Committee on Legal Services voted not to extend Rule 1.28K1 of the State Board of Nursing rules, a provision adopted last year as part of implementation of 2023 legislation authorizing the board to regulate certified midwives.
Christy Chase of the Office of Legislative Legal Services told the committee that Rule 1.28K1 incorporates the American College of Nurse Midwives' scope-of-practice standards but does not comply with the incorporation-by-reference statute because it fails to (1) fully identify the incorporated material by citation and date, (2) state whether later amendments are included, and (3) provide a reliable location for public inspection of the material. Chase said the rule therefore conflicts with section 24-4-103(12.5) of the Colorado Revised Statutes and recommended the rule not be extended.
Sam Delp, director of the Division of Professions and Occupations at the Department of Regulatory Agencies, told members the Board of Nursing has noticed a rulemaking hearing for April 23 and intends to adopt revisions by emergency rule so those changes can become effective as permanent rules on June 14.
Representative Mabry moved to extend Rule 1.28K1 and urged a no vote; the committee recorded multiple “no” votes and the motion failed, meaning the rule was not extended. The committee then proceeded to other items on its agenda.
Why it matters: Agencies commonly incorporate professional standards published by national organizations into licensing rules. Legal services told the committee that when an agency incorporates external standards it must satisfy statutory identification and public-inspection requirements. The Board of Nursing indicated it will hold a public rulemaking hearing and plans emergency adoption to address those requirements.
Next steps: Board of Nursing rulemaking hearing scheduled for April 23; agency expects emergency rules effective June 14 if adopted as planned.
