The LMPA set the stage not only for the licensing and practicing of LMs but also for the many facets of midwifery training and the educational relationship between practicing professionals and students of the art and discipline of direct-entry midwifery.
The MBC’s Midwifery Licensing Implementation Committee ~ 1994-95
The LMPA identified the MBC as the licensing and regulatory agency for direct-entry (non-nurse) midwives and mandated that such licensing be in place by July 1, 1994. In March of 1994 the MBC convened the Midwifery Licensing Implementation Committee to assist in the process of implementation per the requirements of the statute. This committee met six times between March and September of 1994 and a seventh meeting was held in September of 1995. Each of the seven meetings was approximately six hours in length.
Medical Board member Dr. Thomas Joas, MD was appointed to be chair of the Committee. Other Medical Board officials included lay Board member Stewart Shaw (note: this is a phonetic spelling of an Chinese surname), MBC agency deputy director Doug Lauey, senior counsel Anita Scuri, legislative analyst Linda Whitney and several other former and current MBC staff. The California Medical Association (CMA) was represented by lobbyist Joan Hall and Tim O’Shay. The California Association of Professional Liability Insurers (CAPLI) was represented by retired Judge Cologne. Approximately 12-15 midwives in leadership roles attended these meeting, including myself. The midwives also audio taped the last four meeting (June 1993 to September 1994). These tapes were transcribed and transcripts made publicly available on the Internet at www.collegeofmidwives.org.
During the approximately 40 hours of lively and frequently contentious discussions on a wide range of thorny issues, the topic of midwifery students, the legal implication of student status and/or any Medical Board policies relative to the legal relationship between midwifery students and other licensed professionals (midwives or physicians) was never discussed or identified as a problem to be addressed on a future occasion. There were no Board-approved midwifery training programs in the state at that time and the only route to licensing available to California residents was through the LMPA’s “challenge mechanism”. This permitted ‘qualified’ applicants to challenge the educational requirements of the LMPA and, after satisfying other regulatory criteria, to become licensed midwives under the authority of the MBC.
The Educational ‘Challenge’ Mechanism
The first hundred direct-entry midwives licensed in California since 1949 did so through this challenge process. The law stipulated that the challenge mechanism be administered by a Board- approved midwifery school which would, in essence, require the candidate to test out of a three-year training program. The Seattle Midwifery School (SMS) in Washington State applied for and was approved to administer the challenge program in California.
Applicant midwives were required to establish their eligibility to challenge the educational requirements of the LMPA by documenting the necessary clinical experience as stipulated in regulations promulgated by the MBC. Prerequisite clinical experiences had to be within the previous 10 years and required the applicant to document 235 comprehensive patient-care experiences — 95 initial and follow-up prenatal visits, 40 labors, 20 births as primary attendant and follow-up care for 40 postpartum exams, 40 neonatal exams and 20 well-woman gyn visits. The documentation process required that an MD and a certified nurse midwife both review and sign off on the midwife’s records, which included the names and addresses of all patients.
This paperwork was then carefully reviewed by SMS (including independent verification via letter or phone calls to identified childbearing family). If approved, the candidate was permitted to sit for a series of days-long didactic and clinical exams administered by SMS. These exams conformed to the educational curriculum as stipulated in the LMPA and were equivalent to those passed by SMS graduates. Successful competition of the first three steps qualified the candidate to sit for the state’s midwifery licensing exam. Only after passing the fourth and final hurdle of state boards could the candidate become licensed as a direct-entry midwife.
How or where the prerequisite clinical experiences were acquired by applicant midwives was not stipulated in either the LMPA or pertinent regulations. It was the agency itself that determined the technical configuration of the challenge process via regulations that it promulgated. However, the agency staff informally stated to me (and to agents of Seattle Midwifery School administering the challenge process) that all documents identifying the experiential background that established each applicant’s eligibility must be kept confidential by the midwifery school.
The explanation given was this: If the Board were to be in receipt of any of the documents identifying the applicant’s lay practice of midwifery in California prior to the candidate’s completion of the challenge process and receipt of her license, the agency would be forced to either prosecute the applicant for the unlicensed practice of medicine or the Board would be technically guilty of aiding and abetting the unlicensed practice of medicine. Obviously, this was a ‘catch-22’ premise, as the applicant could not qualify for licensure without the stipulated clinical experience and yet the MBC insisted that such perquisite experience without a licensed was itself a crime. As a result, the challenge process took on an air of “don’t ask, don’t tell” as the MBC attempted to logically administer a program based on this incongruent premise.
The MBC’s Dilemma
The Medical Board found it nearly impossible to harmonize the three fundamental elements of the LMPA, i.e., the professionalization of midwifery through 1) education 2) testing and 3) licensing. Either the LMPA was inconsistent and contradictory OR the MBC interpretation of the statutory scheme created internal conflicts not intended by the framers of the legislation. On one hand, the LMPA described an elaborate and complex system for the comprehensive training, testing, licensing and regulation of the professional discipline of direct-entry midwifery. This was presumed by the MBC to mean that the legal practice of midwifery required that all the various aspects of professionalism be met before any one individual midwife was lawfully “authorized” to practice. However, a plain reading of the text of the LMPA does not actually say this in black letter law.
On the other hand, the challenge mechanism of the LMPA clearly acknowledged in black letter law that traditional (ie, direct-entry, non-nurse) midwifery was, at the time the LMPA was being written, an on-going practice that had existed in a legal limbo ever since the repeal of the midwifery application process in 1949. None of the three statutes dealing specifically with direct- entry midwifery licensing (1917, 1949 or 1993) ever criminalized the practice of midwifery by persons not holding a midwifery license or extended exclusive entitlement to licensed midwives relative to their identified scope of practice – maternity care to healthy women with normal pregnancies. Exclusive entitlement language for midwives was also not included in the LMPA. By convention, it is that exclusivity of licensing that generates the various crimes of practice without such a license.
The LMPA not only acknowledged these simple facts but emphasized professionalizing the formally ‘lay’ practice of direct-entry midwifery via a legislative scheme which permitted “qualified” midwives (who obviously had been practicing midwifery prior to passage of the law) to challenge the three-year educational process. If one ponders that for a moment, it is plain that the Legislature presumed that the hundred or more empirically trained and experienced California midwives could adequately demonstrate the technical skills and a knowledge base equal to a graduate of a formal three year training program. Such an assumption speaks of a basic confidence in this formally disenfranchised and frequently denigrated group. It also appears to recognize that a significant number of healthy childbearing families wanted and had a constitutional right to choose normal birth under the medically non-interventive principles of midwifery.
Implementation of the Licensing Process 1996 to December 2004
In the fall of 1996 a small test group of midwives were walked thru the licensing process by the MBC. This included documents from the Seattle Midwifery School attesting to the successful completion of the challenge process and administering the newly minted state boards in midwifery. By January of 1997 licensing was opened up to all qualified midwives. This was almost 3 years behind July 1, 1994 date set by the LMPA. The midwives felt that the Board was working hard to meet the deadline but frequent changes in the personnel assigned to the midwifery program negatively impacted the Board’s ability to meet these goals.
With the exception of two midwives licensed by reciprocity from Washington State, all California LMs qualified under the challenge process until sometime in 2002 (research date). In 2002 the MBC approved several out-of-state three-year training programs. However, there are still no approved midwifery programs in California. It was not until Board-approved training programs became available that ‘students’ of midwifery became part of the responsibility of practicing LMs. The majority of the Board-approved midwifery programs do not provide internships or resident training, thus all the “hands on” or clinical experience of the student is acquired under a preceptorship arrangement with a practicing LM. Agreeable LMs formally contracted with an individual training program to be designated as a specific student’s ‘preceptor’, and thus to take on the clinical training of that student.
Prior to this, licensed midwives were informally involved as a source of clinical experience for women who were in the process of acquiring the necessary clinical experience for the challenge process. The majority of midwives practicing prior to the passage of the LMPA had many times more clinical experience than necessary and had no reason to acquire additional clinical experience under the tutelage of an already licensed midwife. However, the challenge process continued to be the only pathway into the profession and that eventually generated a small but steady stream of ‘challenge’ applicants who could informally be considered students. The LM- challenge applicant relationship did not have any well-defined ‘rules’ beyond those generated by the common sense of the parties.
In general, these relationships were defined more by the conventions of the LM’s contract with her own clients, which is to say that the student/applicant under the challenge process functioned as an assistant to the LM and did not independently take over the care of the LM’s client. However, within the context of the role of ‘assisting’ the LM, the challenge applicant did perform the full range of clinical skills (vital signs, fetal heart tones, vaginal exams, etc) including being the initial person to go to the mother’s home to determine her status or assess her progress and then report by phone to the senior LM. It also included, at the discretion of the LM and with the permission of the mother, managing the labor and birth and technical procedures such as suturing a minor perineal laceration. It must be noted that this was a necessary prerequisite under the regulations which required the applicant to demonstrate her experience as the primary attendant for a specified number of births.
I cannot emphasis enough that these arrangements had absolutely no antecedent policies or other forms of guidance from any other source – nothing in the LMPA, the regulatory process or any formal or informal policies of the MBA. In particular, the MBC continued to insist that they not want to know what we midwives were doing – “We don’t ask and you better not tell us”.
On many occasions, applicants and candidates for the challenge process and practicing LMs contacted the staff member in charge of the midwifery program with what they considered to be legitimate questions. Many reported that they left 5 or more phone messages without a response and that it often took 2 months before they were called back and even then they had to argue mightily to get the help they were seeking. When the midwifery staff person was particularly unavailable or unhelpful, these women would call me and ask if I could somehow get the midwifery program to be responsive to their issue. Most LMs interpreted the agency’s unwillingness to “help” midwives as an expression of disrespect or even a bias against midwives. All of us felt like that midwifery was the ugly step-sister at the Medical Board.
I tried to mitigate this impression by explaining that some of the expectations of licensed midwives were unrealistic, as the Medical Board didn’t “help” doctors or other licentiates either. Their official role was to simply administer the licensing process – applicants send in the appropriate paperwork and the staff processes it. Until about 18 months ago, this stiff-arm approach consistently communicated the idea that we midwives were “on our own”. Whatever the problem, it seemed that the MBC wanted us to figure it out for ourselves and not bother them.
As a result, California LMs adopted a pragmatic approach in which we sought out advice from one another in an informal network that took the place of official guidance from the Medical Board. I was frequently one of those consulted for an opinion or advice.