Midwifery Council Report ~ March 14th ~ ACOG introduces Bill to amend LMPA: changes in LMAR & require malpractice insurance for CaLMs

  • Sunset Review reports provided by Medical Board staff, ACOG lobbyist, and the CMA
  • TIme line for Sunset Review bill ~ language not available until April, must be passed by June 6th
  • ACOG introduces AB 1308 to amend LMPA and ideas for malpractice coverage of midwives under the Affordable Care Act 2009 (Obama care)
  • Faith Gibson resigns from the Midwifery Advisory Council
  • Next Council meeting scheduled for August 8th, 2913

The Midwifery Advisory Council met yesterday at the State office of the Medical Board in Sacramento. There was no simultaneous webcast, but a member of staff did video tape the meeting. Board staff said it will be posted on the Medical Board’s website in a day or two (today or Monday.

I really urge midwives to watch the video and hear what was said for themselves.

The meeting was well-attended by midwives and mfry supporters (19), by MedBd staff (9) by representative of organized medicine (3) and of course, 5 members of the Council (total 37 persons present). It was also unusually short, as there was no work session on a particular topic.

Instead the bulk of the one and a half hour meeting consisted of reports by about the Sunset Review Committee hearing on Monday, March 11th and proposed introduction of legislation. The staff reported that there would be no further Senate Business and Professions Committee meetings. I found this to be a chilling bit of news. It means they actually scheduled the ONLY hearing in such a way that midwifery was never on the public agenda. It seems to have been a fluke that our issues got included in the legislative action plan.

As for the B&P Committee’s recommendations for midwfiery-related legislation, we currently know nothing except that it will come out in mid-to-late April. As a one-year bill, rules require that it be passed by June 6th. This means our ability to influence its contents will be very short (late April and month of May).

Legislative Proposals by CMA-ACOG

ACOG lobbyist Shannon Smith-Crowley gave a report on the actions of her group and the CMA to carry a bill to amend the LMPA by redefining the relationship between midwives and physicians and expanding the Licensed Midwives Annual Report (LMAR).

ACOG’s wants to make their midwifery bill a collaborative product between our two professional groups.  But so far CAM president Constance Rock has only had one conversation with Shannon, which consisted of Shannon providing information on what ACOG’s plans were and that no legislative language was available yet. On another occasion, Mfry Council chair Carrie Sparrevohn had the same experience, which is to say that mutual dialogue between our two groups may (we all hope) happen in the future but has not been realized so far.

As we all milled around after the meeting Shannon generally commented to all of us that it was possible midwives would not like all the provisions of ACOG’s bill, but hoped we would accept their bill as a 90% fix and support the final product as a joint venture.

Unfortunately ACOG still did not have any specific language to share, so the various individual conversations between Constance and Shannon and Carrie and Shannon have yet to offer any opportunity to actually negotiate  the content of ACOG’s proposed legislation. Shannon said AB 1308 could be accessed at www.leginfo.ca.gov either today (Friday -3-15-13) or Monday. Using the URL, I found AB 1308 by Assembly woman Susan Bonilla today, but at 1 pm there was still absolutely NO usual information.

LMAR & Possibility of replacing OSHPD on-line form with MANA stats projects

As for ACOG’s position on the LMAR , they are suggesting we use the “Vermont model”, which requires licensed midwives to file both a state form (for us the current OSHPD form) as well submitting MANA stats. They think this is a better option, as there are questions and topics on the state form (such as the number of midwives that attend births under physician supervision) that are not currently part of the MANA collection of statistics. Personally, I would suggest asking MANA to add those questions to their form.

Physician Supervision Provision of the LMPA

As for the relationship between midwives and physicians, they believe the current inability of obstetricians to supervise and collaborate with midwives is essentially a professional liability problem. Shannon did not address the physician-end of the issue in detail, but did mention the Insurance Commissioner. On another occasion, Julia De Angelo-Felmeth spoke at a Medical Board meeting and stated that if the law requires midwives to be supervised by physicians, the State department of insurance could require the professional liability carriers to cover that arrangement as a normal aspect of the standard coverage.

Malpractice insurance problems for ACOG fellows as focus of AB 1308

Shannon pointed out that as things stand now, any OB who supervises or collaborates with a midwife providing OOH care, or voluntarily accepts a transfer of care of a midwifery client, is doing so at great peril to his/her own professional career. For the last 39 years (since passage of the 1974 nurse-midwifery licensing law) official policies of all three California med-mal carries have prohibited any voluntary working relationship between physicians and midwives or between the doctors and midwifery clients who are planning an OOH birth.

In 1994 and 1995, the Medical Board held a total of 7 six-hour meetings of their Midwifery Implementation Committee. The lobbyist representing the California Association of Professional Liability Insurers (CAPLI) attended every meeting.  Judge Cologne was an attorney, former judge, one-time employee of the US Justice Department’s Anti-trust unit and a very recent lobbyist for the CMA. We asked him to explain the factual basis of the exclusionary policy by all  CAPLI members, and provide information about actuarial data being used. Judge Cologne cheerfully admitted that none of the companies had any actuarial data.

He described the prohibitive policy as an executive decision made the Boards of Directors of each of the three carriers. They generally believed that childbirth was a very dangerous affair, and that it was “just common sense that home birth would be even riskier than hospital birth”. As a result, their companies could not possibly cover  their insured doctors unless they were paying a steep ‘surcharge’ in addition to their regular premiums.

When asked how expensive  that would be, Judge Cologne estimated as much as an additional $50,000 per physician (average OB was paying about $45,000 for their med-mal insurance). He also mentioned the fiduciary obligation of med-mal carriers to drop the insurance of these physicians during the annual renewal. He identified the involvement of these doctors with such obviously risky practice (i.e., consulting and collaborating with PHB midwives and accepting intrapartum transfers of care) as confirming the physican’s poor judgement, at least from the standpoint of the insurance company’s interests.

For the last 4 decades, insurance carriers have to refused to defend a physician who was sued or pay out any claims involving the client of a licensed midwife. Since 1975, ACOG’s official policies have not supported PHB, or any individuals or groups that support PHB. For some reason ACOG is now quite concerned about the professional well-being of ACOG fellows who are currently cooperating with midwives.  At this point ACOG reps have not publicly proposed any specific solution or provided any information  except for the mention that perhaps the Insurance Commissioner should be contacted and a very casual remark by Shannon that perhaps a relationship that did not include supervision would be acceptable.

Mandating Malpractice Insurance for LMs

However, Shannon did talk about the midwife-end of the issue in some depth. ACOG believes that a serious stumbling block to workable arrangements between midwives and obstetricians is because midwives don’t generally carry liability insurance. ACOG is suggesting that a joint underwriters group be created to cover the liability risks incurred by midwives.

A joint underwriters association (JUA) is formed when laws require a group to be insured, but the insurance companies don’t see the economics of doing business with this group as profitable — for example, selling car insurance to those with a really bad driving record. This lack of profitability is generally due to a very high claims rate, or because the pool is too small to generate enough premiums to cover claims made.

In this case the malpractice premiums paid by midwives would go into a joint account shared by all three California-based med-mal carriers, and the cost of any claims would be jointly shared by all these carriers. Members companies of the JUA also get to set the rules (or in our case, the protocols) for what insured members of the JUA are ‘allowed’ to do (issues such as post-dates, PROM and VBAC, etc.

ACOG is suggesting that it might be able to make the premiums paid by midwives to the State-sponsored JUA  more affordable if ‘someone’ can figure out a way to use funds from the Affordable Care Act subsidize the insurance coverage of midwives.

Continued tomorrow ~ “I am troubled by ACOG’s proposals for a couple of reasons”