Physician Supervision Clause in California nurse & direct-entry mfry legislation — ~ part 2 (of 5)

by faithgibson on January 2, 2013

in AB1308, new regs & new legislative efforts, Physician Supervision Issues

Link to part 1

Historical background of California midwifery legislation in relation to physician supervision:

The 1993 LMPA repealed the original 1917 provision for the state-regulated practice of midwifery by non-medical, non-nurse practitioners. From its implementation in 1918 to the 1981 retirement of the last midwife certified under the original provision, there were 217 direct-entry midwives who practiced under this law over a span of 65 years. The majority were first and second-generation Japanese who graduated from one of the 27 formal training programs in Japan.

It should be  noted that the laws defining the state-certified practice of midwifery did not require physician supervision or mandate any specific a priora relationship between non-nurse midwives and physicians from 1917 to its repeal in 1993. The 1917 provision only required that certified midwives refer any pregnant woman, labor patient, new mother or newborn under their care who developed a complication to the care of a physician.

Mandatory physician supervision of professional midwives was first introduced in Nurse Midwifery Practice Act in the 1974. Prior to that, the practice of midwifery in California was an independent profession that did not require supervision by a member of the obstetrical profession. This independent status was noted in a July 8, 1949 Legislative Memorandum to Governor Earl Warren’s Office, which made the following clarifying comments:

“Some comment should be made … with regard to midwives and nurses, for the duties and powers of the two classes are quite different.

Section 2725 of the B&P Code outlines the duties which may be performed by nurses. All these duties are to be performed under the supervision of a physician.

Such is not the case with regard to midwives, for according to Section 2140 of the same Code this type of practitioner operate independently and not under the supervision of a physician.” 

Midwives ~ an Endangered Species

Unfortunately the mandatory physician supervision clause in the nurse-midwifery act of 1974 ended midwifery as an independent profession in California as described above

Nurse-midwifery was a relatively new category of maternity care professional trained in both nursing and midwifery. Nonetheless, it had a long and honorable tradition that started with an English midwife – Mary Breckenridge — who started the Frontier Nursing (and Midwifery) Service of Kentucky in 1929 and served the most impoverished of rural families in the isolated and mountainous regions of Appalachia. Its nurse-midwives traveled by horseback in all kinds of weather and all times of the day and night, providing prenatal care, attending normal births and providing general medical care to poor families.

Their services record was so extraordinary as to cause Dr. Louis Dublin, President of the American Public Health Association and Statistician of the Metropolitan Life Insurance Company to analyze the work of the Frontier Nurses’ midwifery service and make the following statement on May 9, 1932:

“We have had a small but convincing demonstration by the Frontier Nursing Service … of what the well-trained midwife can do in America.

They have delivered over 1,000 women with only two deaths — one from heart disease, the other from kidney disease. During 1931 there were 400 deliveries with no deaths. There is a hospital at a central point, with a well-trained obstetrician … and the very complicated cases are transferred to it for delivery”.

“The study shows conclusively that the type of service rendered by the Frontier Nurses safeguards the life of the mother and babe.

If such service were available to the women of the country generally, there would be a savings of 10,000 mothers’ lives a year in the US, there would be 30,000 less stillbirths and 30,000 more children alive at the end of the first month of life.” [1937-A]

The legislation proposed for California in 1974 was seen as a way to provide maternity care to underserved and impoverished rural and urban areas and greatly reduce the cost to the state for birth services to healthy low-income women under the MediCal program.

Sponsors of the bill hoped the new profession of  nurse midwifery would be able to offer low-income, MediCal-eligable women cost-effective midwifery care in hospitals, birth centers and OOH settings, with a cost saving of 1/3 to 1/2 less than the conventional obstetrical services. Approximately 40% of all births in California were paid for by MediCal, so this was a very significant opportunity for the state to control it’s healthcare costs.

However, organized medicine insisted that the nurse-midwifery licensing law include a mandatory physician supervision clause. The California Medical Association cited concerns about public safety and insisted this provision would provide a reliable stepping stone to physician care and that without this requirement, childbearing women or their babies would be unable to access the care they needed in a timely fashion.

Unfortunately, a combination of factors specific to mandatory supervision destroyed the potential of nurse midwifery to provide the promised cost-saving maternity care. The so-called “stepping stone” of physician supervision was quickly turned into a permanent stumbling block that made (and continues to make) it extremely difficult or impossible for CNMs to practice as expected and orders-of-magnitude harder for mothers and babies to access non-emergent medical services.

The American College of Obstetricians and Gynecologists interpreted the role and responsibility of the supervising obstetrician as having ultimate “authority, responsibility, and liability” for the midwife’s maternity patients. Med-mal carriers followed with policy statements insisting that the supervisory relationship created vicarious liability, which their contract prohibited.

According to the medical malpractice world, customary insurance premiums did not cover this category of vicarious liability, which meant any obstetrician who supervised a midwife would have to pay a cost-prohibitive ‘surcharge’ — up to $50,000 a year — in addition to his/her normal premiums. In addition, nurse-midwives were seen as a source of economic competition, which gave obstetricians multiple reasons not to cooperate by offering to supervise CNMs.

In spite of these disincentives, a few OBs in urban areas were willing to supervise nurse midwives but only if they agreed NOT to attend any OOH births. In rural areas, where nurse midwives were expected to have the most positive impact on the State’s MediCal costs by providing maternity services to low-income women, doctors were not, in the main, willing to provide the required supervision.

Sometimes this was due to prohibitive policies of med-mal companies, or the doctors were simply unwilling to be involved with non-physician birth attendants. The medical profession in general sees all non-physician practitioners as having been inadequately trained compared to MDs, and nurse-midwives were no exception.

In addition, CNM were seen as an unwelcome sources of both economic competition and a lowing of the status of the obstetrical provision — the idea that if a mere nurse could deliver a baby, then what obstetricians did was not so special after all.

Because the nurse-midwfiery practice act was so extraordinarily dysfunctional. there was a considerable push by consumers and other childbirth activists to fix these problems by getting new legislation passed. The first of these 6 direct-entry licensing bills — the Midwifery Practice Act  of 1978 — was introduced into the California Legislature before the ink was thoroughly dry on the CNM law.

An official document Michael Krisman, Deputy Dir. Department of Consumers Affairs in supporting The Midwifery Practice Act  (AB 1896), identified the reason for another, newer bill to be the provision in the CNM law that restricted the practice of  nurse midwives to: “only those situations under a doctor’s supervision”:

“In 1974, the California Legislature authorized the practice of nurse midwifery. This new program reflected concern over a perceived shortage and mal-distribution of obstetrical services in rural areas and the lack of prenatal care through the state.

The nurse midwife is authorized to attend cases of normal childbirth and provide prenatal, intrapartum and postpartum care under the general supervision of physician. (The physicians need not be physically present, but are responsible for the actions of the nurse midwife.) 

Regulations have been established to implement the law; but for a number of reasons, including the restrictive nature of the regulations, only about 65 nurse midwives are presently certified in California.”  

“… the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant.

The fact that [3 yrs after passage] only 65 are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”.

As noted above, mandated physician supervision is interpreted as making the doctorresponsible for the actions of the … midwife. The legal term for this is ‘vicarious liability’ and is the specific situation that produced “structural barriers” and other unintended consequences referred to above.

Forty Years and counting:

~ The obstetrical profession’s national agenda to have legislative control over the nurse-midwifery profession in California 

In the 39 years since the passage of the California nurse-midwifery act, nurse midwives have been unable to directly serve  low-income populations and women seeking ‘alternative’ care, which was the stated intention of the nurse-mfry act as anticipated by its framers and votes cast by of the Legislature.

However, a combination of vicarious liability issues and fears by the obstetrical profession of economic competition meant and continues to mean that CNMs in are generally unable to get hospital privileges, not only in California but all across the country.

In more recent times (2004), the economic issues of physician supervision spurred the AMA’s “Scope of Practice Partnership”, which passed resolutions stating the medical profession’s absolute opposition to having any government program such as Medicaid or Medicare reimburse any nurse-practitioners (a category that includes CNMs).

The AMA and other SOPP ‘partner organizations’ continue to lobby for state and federal legislation that would prohibit any direct reimbursement of any “physician-extender” by insisting that payments for their professional services go directly to the ‘supervising physician’, and not to the professional who provided the care.

Except for a very few large teaching hospitals, nurse-midwifery services have been locked out  by decisions of hospital administrators or heads of obstetrical departments. Nurse midwifery services that successfully provided services low-income women were suddenly and inexplicably closed down.

This included the nurse-midwifery clinical training and hospital services at Columbia-Presbytarian in NYC, which had in continuous operation since 1953. For over half a century, nurse midwives on staff  had provided safe and cost-effective care to low-income women and functioned as the first and one of the most prestigious clinical training site for nurse-mfry students in the US.

However, more than a few obstetricians on staff at Columbia-Pres were unabashed about publicly stating their self-referent perspective — that every time a nurse-midwife delivered a baby, it meant one less delivery for themselves or their obstetrician colleagues, with a resulting loss of income.

Hospital administrators publicly defended their own decisions to close hospital-sponsored nurse-midwifery programs because nurse midwives, who focus on supporting normal childbirth without the routine use of medicalization, were not able to generate the same level of ‘billable units’ as the OBs on staff. Every time they listened to the unborn baby’s heartbeat with a fetascope or doppler, their actions were depriving the hospital of the $400 an hour reimbursement for the use of continuous electronic fetal  monitoring

In addition, the Medicaid reimbursement rate for nurse-midwife attended birth was at the time 1/3 less than the fee when an MD provided the same kind of service. This had since been was changed by the ACA of 2009, but for that, hospital profit from nurse-midwifery services were substantially less than that of obstetricians and obstetrical residents, who could bill for attending a delivery at the much higher MD rates.

In California, obstetricians have for the last 40 years been unable or unwilling to provide supervision to CNMs who wanted to provide OOH birth services (free-standing birth centers and planned home births) due both to med-mal carries prohibitions and the issue of economic competition.

The structural barriers to practice that are still inherent in the California law leaves nurse midwives in our state with few if any career opportunities to do that they were actually trained for — to function as trained birth attendants who provide safe and cost-effective services to essentially healthy women.

Instead, the majority of California nurse-midwives now work in doctors’ offices, clinics and as maternity care or have jobs as labor and delivery room nurses. California’s problems are made worse by Medicare-Medicaid rules that have for decades prohibits direct reimbursement to ‘midlevels’ practitioners, including nurse midwives.

Equally unfair,  nurse-midwives are being blocked from independently providing non-childbirth services to low-income population unless the woman (or her family) are able to pay out-of-pocket.

Strangely enough, these same federal laws governing authorize physicians to be reimbursed for care provided by nurse-practitioners at the rate the doctor would have charged he or her personnally provided the care. Under this irrational system, there is no cost saving to the taxpayer when they are cared for by nurse-midwives.

Reference: Medical Board of California – Status Report: Health Policy and Resources Task Force [October 5, 1993] 

Although California has experienced a dramatic increase in health care professionals, this has not solved or even alleviated the problem of underserved areas.

California has more doctors per capita than any other state …. (and) …the hiring of additional allied health care professionals has not really done anything to benefit patients.

Although … the concept in principle is that allied health professionals can provide additional access to health care …. the manner in which they are being hired and used ….. they are really only serving to increase the income of physicians.

Although physicians are hiring more Physician Assistants and Nurse Practitioners, and often patients never see the physician, the patients are charged the same amount for an office visit. This is income for the physician but there is no cost-savings to the patient.

In general, this cumulative effect of all these institutionalized barrier all across the country to the unfettered ability of CNMs to function and/or be properly reimbursed  has had a devastating toll on the nurse midwifery profession. Annual enrollment in nurse-midwifery training programs has fallen from a national average of 500 new students to an all-time low last year of only 200 students (oral statement of CNM educator LW at the “Interested Parties” meeting on March 29, 2012).

However the death blow to nurse-midwifery did not change the interest and intention of many childbearing families to seek out traditional (supportive, non-medical) midwifery care.

ACT II ~ failure of California’s nurse-midwifery law triggers push to license direct-entry midwives

Over the last 40 or so years, 1% of California families have consistently preferred and sought out physiologically-based maternity care. To their frustration, this traditional type of care was not available within the standard “system”  of  obstetrical care, which is hospital-based and routinely medicalizes labor and birth. These healthy women were motivated to labor spontaneously at home (and if everything went normally), give birth under their own steam, even it that meant choosing an ‘alternative’  setting, such as a planned home birth and a midwife instead of a doctor.

With an annual birth rate in the State of approximately 600,000, 1% represented about 6,000 families a year seeking care in an out-of-hospital settings. Eventually an alternative and informal system of caregivers — traditional lay midwives, those providing care under the religious exemptions clause (Sec. 2063) and a tiny handful of CNMs and MDs stepped into the gap to be sure these families were not forced to choose between the Devil and the Deep Blue Sea — risky unattended births versus the risks of routine medicalized that they neither needed, wanted and in some cases could afford to pay for.

What began as a trickle of 6,000 families a year swelled over the next two decades to approximately  120,000 highly motived families who had sought and received ‘alternative’ childbirth services. Augmented by the friends and family members of childbearing parents, childbirth educators, midwives of all kinds (including CMNs and a few supportive and outspoken physicians) a grass-roots movement was formed.

They were joined by citizen groups that supported the right of self-determination by mentally competent adults in regard to all forms of health and medical care.  There was also support from citizen groups working to improve the fiscal policies for all health and medical services paid for by the State under MediCal, thereby reducing the State’s budget deficit while maintaining a safe level of cost-effective services.

[see MBC document 10-05-1993 above, which notes:  “the hiring of additional allied health care professionals has not really done anything to benefit patients”.]

Gradually this group became a politically entity effectively able to promote legislation designed to authorize and support the community-based practice of midwifery (i.e., physiological care in non-medical settings).

After 6 failed attempts (1977-1992), the cumulative effect of this political activism eventually resulted in passage of SB 350 — the LMPA of 1993 —  a full 19 years after the ill-facted nurse-midwifery practice act became law.

Link to part 3

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