California College of Midwives

Making Legislation about Mothers and Affordable Maternity Care,
and not about midwives, and the doctors who refuse to provide supervision

I think we are served by not focusing tightly on us, as midwives or about midwifery per se — that is, I think there is considerable advantage to not using the word “midwife” or “midwifery” as the identified focus of our legislative efforts. 

For the public, midwifery is as a word generally invokes mental images of Scarlett O’Hara’s maid saying that she didn’t know “nothing about birth’n no babies”, as Atlanta burned in the background. For the medical profession, midwifery is about who ‘delivers’ the baby, and therefore triggers the century-long food-fight over which profession is most qualified to ‘control’ the second stage of labor.

Maternity care is far more, but never less, than attending births

However what midwives actually do is SO MUCH MORE than the few minutes we function as legally-responsible birth attendants. Only about 5% of the total time (typically about 25 hours) we spend providing care to childbearing families is about ‘catching the baby’ — that is, managing the last few minutes of the perineal stage and the baby’s first breath, which is the medical definition of the surgical procedure of a ‘delivery’, which is the only part that obstetricians play in the course of labor, birth and postpartum-neonatal care.

By making access to affordable MATERNITY care by California families our issue of concern, we refocus the discussion on the whole spectrum of maternity care as a vitally important aspect of HEALTH care — access to maternal-infant health education, nutrition and dietary counseling, breastfeeding advise, child development issues, family planning information, avoiding intergenerational hypertension, type II diabetes and obesity, etc.

This includes pre and post-natal appointments that are a minimum of 30 minutes in length and scheduled house calls before, during and after the birth (irrespective of the designated place-of-birth). The goal is high-quality, high-value individualized health care at this key time in the life of women and unborn/newborn babies

These maternity services are something that even people who don’t have kids and/or aren’t ever planning to get pregnant can understand. As for the number$, every state employee and member of the Legislature knows that money saved by preventing the need for medical services is money available for pre-K education, community college system, infrastructure maintenance, anti-terroism security, whatever.

By labeling ‘supervision’ as a policy that prevents the provision of affordable maternity care in California by professionally-regulated midwives, we have a very significant advantage over other, earlier efforts to ‘repeal’ supervision. These turned out to be fights between doctors and midwives over who was going to control the actions of midwives based on spurious claims of ‘safety’, whether midwives carried liability insurance and whether med-mal carriers would “let” doctors consult or collaborate with LMs.

These earlier legislative efforts were about what doctors did and didn’t want. Unfortunately organized medicine used this focus on doctors and midwives and medical malpractice issues to obscure or distract us all from the most crucial piece of the story – affordable care for mothers and babies. Its useful to note that supervision as constructed by ACOG does not apply to care of the neonate, which is a totally different discipline. Obviously obstetricians and organized medicine did not lobby for mandatory supervision by perinatologist or pediatrician. I guess its safe to assume that they are not concerned about the economic fortunes of the pediatric profession or the ‘safety’ of neonates.

So far the licensed mfry profession has missed the boat 3 times when we attempted to repeal supervision – first with Assemblywoman Strom-Martin in 1999 and the two under Figureoa. The way these legislative attempts were structured made them primarily seen as merely amendments to the LMPA, which made it look like its purpose was to better the working conditions of midwives.

Unfortunately, this made efforts to fix ‘our’ problem of supervision into a turf war against a well-financed and tactically superior group that turned it into a showdown at High Noon. At the appointed time, we midwives showed up at their gun fight with a pee-shooter and chanted “please be nice to midwives, cause we’re so nice to you, if you’ll be nice to midwives, we’ll be nice to you”.

The real issue relative to mandated-but-systematically-unobtainable obstetrical supervision was that it blocked access to the full spectrum of affordable maternity care by essentially healthy women.   But that wasn’t what midwives were saying — we kept talking about how we couldn’t find a physician who was willing to supervise us. That made the public conversation about midwives, and how hard we ‘tried’, the relative safety of OOH birth and whether or not we had our own med-mal coverage.

Supervision created and maintained a monopoly by the obstetrical profession over all maternity care revenue streams, but we didn’t say that either. Like a good battered wife, we didn’t want to piss ’em off by telling a bold-faced Truth in public. After all, we depended on the good will of a tiny sliver of OBs to be nice to us or our moms.

Then AMA-CMA and the obstetrical professional manipulated the state-federal reimbursement system for the 40% of low-income women, so it cut licensed midwives out of the picture and the ONLY care available to Medicaid/Medical pregnant women was the most costly, most highly interventive type of hospital-based obstetrics.

But we didn’t notice, or didn’t care, or didn’t think it was ‘wise’ to discuss ‘welfare’ issues in public. From the perspective of public health policy and balancing the state budget, this was the big ticket item — the most compelling reason for fixing the problem.

I don’t know why we didn’t talk about it, but the answer doesn’t much matter anymore. Collectively it was a serious tactical error.

For instance, talking about our efforts as  “The California Affordable MaternityCare Act of 2013” tells you that affordable maternity care is good and that we don’t currently have it in California. No need to teach or preach.

Describing the biil’s intent as “to make physiologically-based midwifery care easily available to Medicaid-MediCal eligible women in birth centers and other non-medical settings“, tells us that currently there is no mechanism to provide cost-effective physiologic care to healthy, low-income populations in California.

Each of the specific provisions listed — allowing LMs to qualify as Medicaid/MediCal providers (note that our law already defines the status of LMs as “equivalent to CNMs“), requiring insurance companies to reimburse LMs for legally provided services, requiring physicians to collaborate as normal part of their MD license, requiring med-mal carriers to cover incidental liability for care provided to clients of midwives as a normal part of their coverage, requiring medical service providers to provide medical services without discrimination (what a concept!), authorizing access to the drugs required by our own licensing act (mind-blowing idea!) — each of these statements tells the reader exactly what the problem is — i.e., that these things are not happening. 

This makes the legislative ‘remedy’ itself a description of the problem it is crafted to solve.

The question that remains in the mind of the readers is why California doesn’t already have those things?

The answer is ‘structural barriers’ built into the law that currently block LM from being able to be reimbursed when providing care to low-income women, that allow insurance companies to refuse to pay for legitimate services provided by LMs, and allow doctors, other medical service providers, and med-mal companies to systematically refuse to cooperate with midwives and their client families. Obviously, there is a pattern here that singles out midwives/mfry clients to refuse services that are otherwise ‘business as usual’ decisions.

The question behind that question is a simple binary yes/no:

Is this structural barrier inserted into the law by organized medicine to ‘safe guard’ innocent childbearing women from crazy, lazy, money-grubing, know-nothing midwives (Scarlett O’Hara’s maid)?

Or

Is it about historical prejudices against midwifery and maintaining the contemporary economic advantage of mainstream medicine?

When you connect up the dots, the answer is obvious and as close as the bill’s title: the California Affordable Maternity Care Act. Its name and its provisions tell us that all the structural barriers are (surprise!) all to the economic advantage of those controlling the system, that is, not to the advantage of midwives or childbearing women.

Telling our story through the language of our bill is also an effective mechanism to expand public and personal understanding of the institutionalized discrimination against the midwifery profession and non-allopathic forms of healthcare.

Judge Roman’s findings clearly identify the midwifery model of physiological management as “not a medical model”. As a method that is separate and distinct, he also stated that physiologically-based midwifery care is NOT available from within the current mainstream medical system.

This formally acknowledges the ‘natural’ economic competition btw the two professions. It identifies a financial motive behind the CMA-authored control over the midwifery profession by the obstetrical profession via the supervision clause. And it explains the institutionalized lack of cooperation by the obstetrical profession in subsequent years, as it universally refused to provide the very supervision that it legally imposed.

Here is what that looks like:

A personal invitation to 40 LMs to join me for the next 40 days in “furthering” the political action in the right direction!

Dear CaLMs,

I love thinking of California licensed midwives as a CaLM – calm, caring, competent, compassionate, good for California’ childbearing families.

Right now the politics of licensed midwifery in California is part of the Senate’s Sunset Review process. It’s an opportunity that it will introduce changes in California law that would remove the decades-long barriers to affordable maternity care by changing the professional relationship between Ca LMs and physicians so that it worked for all of us.

As a former quilter and video-editor, I see the politucal problem/goal of affordable maternity care in California as a large complex quilt with many pieces. As a quilter/video editor I know that the secret to making a big project is a plan bigger than I think can ever be accomplished, followed by consistent, persistent, one-at-a-time attention to each individual piece.

While video-editoring is a solitary experience, quilting bees are not. In the 1980s, a Santa Cruz-Palo Alto group of mothers and midwives called “MotherSong” meet in my backyard on the first Friday of every month for a quilting bee/gabfest/sing alone. We all sat side by side and worked together on a big quilt stretched over a stand-alone wooden frame, each of us putting in our share of tiny quilting stitches while we chatted and discussed the meaning of life.

When we do this kind of work well, we are eventually rewarded with something of beauty that far exceeds the limitations of our individual mental skills.

When it comes to a revolution in California maternity care for healthy women, I am suggesting two entwined ideas.

First is a new way to think about these issues — that as individual midwives we take a small ‘corner’ of the quilt and work on that piece to the best of our ability. As we slowly integrated our unique contribution into the overall process, we will be doing our part to end the stale status quo by politically empowering mothers and midwives and taxpayers.

Since passage of the nurse midwifery practice act in 1974, California taxpayers have been systematically taken to the cleaners by organized medicine. By insisting on the obstetrical supervision of midwives, they were able to institutionalize their monopoly over all revenue streams for maternity care in California. Midwifery was technically ‘legal’, but insurance companies wouldn’t reimburse families for maternity care provided by independently practicing professional midwives and Medicaid-MediCal wouldn’t pay for their OOH birth services.

The second part of this strategy is seeking out new, highly innovative ideas for getting what we need from the political process. Think of the “Arab Spring” and other political situations that have recently toppled one-sided power.

Think Wayne Le Pierre  and his’s extreme brand of NRA politics — his type of rhetoric use to rule the roust, no matter how illogical or reprehensible. The NRA lobby even controlled who got elected by defeating candidates for public office that supported responsible gun laws. After decade of what seemed so immutable that many of us had given up altogether, we are seeing a dramatic shift in this problem, which had many political characteristics in common with the ‘midwife problem’ of 1910. It seems to me that both of these ‘hopeless causes’ are experiencing a dramatic positive shift into the not only possible but probable!

I am convinced that now is the time for affordable maternity care for California families. Here are my ideas for how to ‘further the action’, one midwife, one mother, one ‘quilt square’ at a time.

The goal:

* Affordable maternity care in California by making physiologically-based midwifery care in birth centers and other non-medical settings easily available to Medicaid-MediCal eligible women by licensed midwives.

What does this means? Promoting legislation that:

** Includes the independent practice of licensed midwifery in the Medicaid reimbursement scheme so LMs qualify as Medicaid providers

** Requires health insurance companies (once again) to reimburse families for birth services provided by LMs

** Provides LMs with access to the consultative and collaborative services of physicians as a normal obligation of the doctor’s licensed to practice medicine in the state of California

** Requires med-mal carriers to cover any incidental liability as a normal part of the physician’s liability coverage

** Provides mfry clients with normal unfettered access to necessary obstetrical services, by insuring non-discrimination by other medical services providers (labs, ultrasound, referral to perinatal regional centers, etc)

** Establishes a mechanism for filing an ‘incident report’ for any circumstances in which denied or delayed medical services  result in a problematic outcome for the client family

** Authorizes independent access for LMs to necessary prophylactic and emergency drugs for the responsible practice of midwifery

How? — We need to turn politics on its head by putting mothers, midwives and California taxpayers in the driver’s seat. Here are my ideas for making that happen:

*** Support CAM’s lobbying efforts and all the time-tested avenues for political activism — letter-writing, personal visits to district offices, etc

*** Think Outside the Box by making creative and targeted use of social media — YouTube, Facebook, Twitter, other web-based opportunities for organizing our activism, including Skype and video conference calls

Action Plan:  

I’m asking for 40 midwives to sign up for doing something everyday (when we are not at a birth or sleeping afterward) that will quietly, with careful tiny stitches, propel the political process forward a bit each day for 40 days.

It would be helpful if we each knew what others were doing so we can cover all our bases. I suggest using the California-midwives site to post our ideas, our activities and eventually, the ‘product’ of our efforts.

What follows are several specific, but certainly NOT the only, possibilities. This “plan” assumes that things unthought of will naturally arise, and new, undreamed of opportunities will open up, such has already occurred with CAM’s experienced and talented lawwyer-lobbyist, who is providing his services pro bono.

I suggest that each of us find some little part of this quilt (or puzzle) that interests us and figure out how to communicate it to those that really matter:

• The seven California senators who sit on the Sunset Review Committee,
• Governor Jerry Brown’s administration
• The zeitgeist or court of public opinion — now called “crowd-sourcing” or the 99%

Personal Letters & Written Testimony for Sunset Review Committee: This can be done directly by sending brief letters (if possible from midwives and client families who live in their districts) to each of these 7 senators (especially Sen. Hernandez). It can also mean writing longer documents that focus on a single issue and  submit this material to the Sunset Review Committee prior to the March 11th hearing as written testimony.

Social Media: Another avenue for effective political activity is social media — collectively we need to fill Facebook, and blogs with 30 second to 3 minute videos (also send via email to the offices of the seven Senators on SR committee) that make a short but cogent case for the legislative ‘remedies’ enumerated above.

I have already posted extensive material on the historical and contemporary events and will add more as time goes by. But obviously there is too much of this material for any one legislator to read in its entirety. However if midwives each choose a small topic as their one ‘square’ of the quilt, the entirety of this valuable information would eventually find its target.

For example, there is the issue of MONEY. By refusing to provide the legally essential service of  supervision to midwives for the last 20 years (40 for CNMs), obstetricians were able to eliminate their only source of ‘competition’ and maintain a virtual monopoly over all maternity services. Lets be blunt here — supervision is not about the activity of providing medical services to client families, but having the right paperwork with a doctor’s name on it. Without this paperwork, midwives and their clients are boxed out of the mainstream system, but we still are able to lawfully provide care.

As mentioned in the material prepared for the Senate B&P Committee, Judge Roman’s ruling provides a method that is legal and also effective at the practical level. It ensures that each client family has appropriate and timely access to necessary medical services, as well as satisfying the intent or “ambit” of the supervisory provision. The LMAR for the last 5 years confirms that we are generally able to meet the non-economic needs of childbearing families.

The only truly effective aspect of supervision is how efficiently it preserves the dominance of obstetrics over an unnecessary medicalized (and expensive) system, while at the same time preventing midwives from being part of mainstream healthcare system or being able to serve low-income women.

For the last 40 years, 40% of Cal families and 100% of California professional midwives have been locked out of the Medicaid/MediCal reimbursement system due the ‘systemic’ barrier (poison pill) of OB supervision. If you read the 1977 document from Gov. Brown’s first administration (MfryBill-AB1896_DCA_4MedBd_Sept1977) and used the State’s  own math over the subsequent 36 years, its easy to see how much money California taxpayers have lost by NOT allowing either midwives or mothers access to the Medicaid program.

It’s shocking and it means that sick people didn’t get care they needed, and school teachers didn’t get paid what they were worth and thousands of other state services were not available available because the money was going to expensive obstetrical care for healthy women. Personally, I think supervision has unconstitutional consequences and is a white collar form of organized crime perpetrated on the taxpayers of California.

Having this story go viral via Facebook and YouTube

Midwives need to interview Medicaid-eligible women and get them to tell their story on audio or video tape. The midwife can either create a written transcript to email to the 7 SV members, or publicly post the short video on Facebook & YouTube. This makes it real clear — no question that obstetrical supervision is a great success at locking healthy, low-income women into the most expensive and interventive possible form of care — the strict obstetrical model — which is currently is their only choice.

The experience of these women have with prenatal and postpartum care in the many MediCal mills is usually a handful of 5-minute appointments with an overworked nurse practitioner or professional midwife. It means the doctor who ‘delivered’ you was someone you never met before or after the 12 minutes he (or she) spent telling you to push harder and then ‘catching’ your baby.

It means that maternity care under the Medicaid-MediCal program is NOT part of California’s health care system — that is, as a process for educating families in healthy life styles that eliminates or reduces disease. For example, high quality prenatal care reduces the likelihood of developing high blood pressure and type II diabetes during the pregnancy, or having an undetected breech at term.

As the gift that keeps on giving in the years following the birth, high-value prenatal and post-partum care helps with family planning and to reduce intergenerational obesity and diabetes in later in that new baby’s life. The average time nationally for an office visits by non-physician primary care practitioners is 20-30 minutes. This make it obvious that 5-minute ‘drive-thru’ appointments of Medicaid mills are a shame — pretend care organized around making a profit for the medical practice.

Legislators need to know these simple facts. 

Likewise, we need to tell the stories of PHB clients who were turned down by OB service providers. This would be the same kind of  brief letters to the gang of seven committee members, or posting taped or written account w/ a picture of the family on Facebook and weblogs.

We need stories from LMs who were denied services (labs, US, etc) or bore the brunt of discriminatory actions by hospitals and the medical profession — for example, not being able to refer women with an affected fetus to perinatal regional centers. It is especially helpful if you have a letter documenting the offensive actions or accusations.

Helpful tactics to organizing our political efforts: 

I’d like to begin a dialogue with other midwives via email or Skype. This would give us a way to identify the little jewels of information from the material that has already been amassed and create a logical process to find a ‘home’ for each of these gems. There is so much to choose from — the independent legacy practice of mfry, the current excellent record of ‘unsupervised’ LMs as revealed in 5-years of stats from the LMAR, our extraordinarily low prematurity and C-section rate, and the exciting future as LM contribute to affordable maternity care for low-income families by being compensated under the Medicaid/MediCal program.

Another potential gold mine is Judge Roman’s incredibly useful ruling, which identifies the legislative intent of the LMPA (i.e., that childbearing women in California have access to the services of trained, state-regulatied LMs). He continues by making a very specific legal case that the care of licensed midwives is different from that of nurses, nurse-midwives and physician assistants, as LMs and ONLY licensed midwives provide the a non-medical or ‘midiwfery’ model of care (i.e. physiological management).

This is itself a logical reason to eliminate any form of pre-determined, pre-defined physician relationship from the LMPA except as based on the medical needs of mother or baby.

Legislators, the public and Governor Brown’s administration all NEED to KNOW these FACTS and its our job to tell them. We can do that pretty efficiently if each LM would commit to communicating just one of these many important ideas.

I hope today will be the first of 40 exciting days with 40 excited midwives, working to make sure that 2013 is a lucky (blessed) year for California — its midwives, its childbearing families, its taxpayers, and the shape of its state budget.

We can do better and we will — I’m confident of it.

Excepts from my communications with employee GV Ayers of the B&P Committee of California Legislature:

When it comes to the legal, legislative and political history of obstetrical supervision of midwifery, I am the idiot savant. In preparation with for a meeting in 2007 with then-Attorney General Jerry Brown on this topic, I created a document archive for his office. My copy of that binder weighs over 4 pounds and its historical and contemporary documents paint a disturbing picture of a law that has never been in the public interest.

Perhaps the best proof of that statement was provided by Gov. Jerry Brown’s first administration in a document from the Department of Consumer Affairs dated September 8, 1977. In the 3 years since passage of the nurse-midwifery statute, the mandatory supervision clause had already proven itself to be unworkable and a new licensing law was deemed necessary by his administration (the Midwifery Practice Act of 1978).

The 11-page document by deputy director Michael Krisman specifically identified mandatory supervision as a ‘structural barrier’ to the intent of the nurse-midwifery practice act, which was to make professional midwifery care available to underserved populations, families seeking an ‘alternative’ to highly medicalized obstetrical care and most especially, eligible-Medicaid low-income women living in unserved areas of the state:

“… by limiting the practice of midwifery to only those situations under a doctor’s supervision … the practice of nurse midwifery has been effectively limited to large metropolitan hospitals where obstetrical services are most abundant.

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

Mr. Krisman described mandated supervision as generally making the doctor “responsible for the actions of the … midwife”. The legal term is ‘vicarious liability’, and it is the specific situation most responsible for these “structural barriers” and other unintended consequences referred to throughout in this document. As long as the 11-letter word ‘supervision’ is in either one of the midwifery licensing laws, the med-mal carriers can continue to cite the artificially-created ‘vicarious’ liability as permitting them to legally discriminate against the practice of midwifery.

Imagine how different it would be if medical doctors, who are trained in medicine but not midwifery, were only responsible for their practice of medicine, and midwives, who are trained in midwifery but not medicine, were only responsible for their practice of midwifery? Imagine if our two professions could freely collaborate with each based on the simple and straightforward needs of client families? Imagine how much money this would save taxpayers under the MediCal program!

Oddly enough, this is exactly where the traditional or ‘legacy’ practice of midwifery in California was during the 105 year period from California’s statehood in 1876 to 1981, which is when the last midwife licensed by the MBC under the original provision retired. Another document in the AG’s office 2007 archive is a July 8th, 1949 Legislative Memo from Gov. Earle Warren. It confirms that the legacy practice of California midwifery was never under the control the medical profession, nor was any pre-determined physician relationship or obstetrical supervision required for practicing midwives.

“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 operates independently and not under the supervision of a physician.”

With the exception of a one physician assistant who is also a licensed midwife (PA & LM) and provides hospital-based services under physician supervision, no California LM who attends births has been able to secure the mandated ‘direct and accountable’ physician supervision in the 20 years since passage of the LMPA in 1993.

According to a personal conversation in the summer of 1993 with Sen. Killea (author of the LMPA), the CMA promised that if she would permit them to insert the same mandatory supervision clause in the LMPA as in the 1974 nurse midwifery law (despite the fact that it had already been proven to not work), the CMA would “see that physicians provided supervision” to LMs.

We all know that was a promise they couldn’t and didn’t keep. While the CMA claimed the supervisory requirement was a necessary stepping-stone to timely medical care, its entire 39-year history has been that of an unnecessary stumbling block with a major negative impact on childbearing families and midwives.

While the federal Emergency Medical Treatment & Active Labor Act (EMTALA) requires hospitals receiving federal funds to provide emergent care to all women in active labor (including the clients of midwives), EMTALA does not apply to routine obstetrical evaluation, or to laboratory, ultrasound and other diagnostics services. There have been a number of bad outcomes directly attributable to refusal of obstetricians and other service providers because the patient in question was receiving care from a LM.

This makes the safe care of over 100,000 mothers and babies by licensed midwives during this long dark period a truly remarkable feat. Even in the face of such overwhelming odds, the outcome statistics from the California’s Licensed Midwives Annual Report (2007-2011) are excellent. The average C-section rate over the past 5 years for LM clients who transferred to the hospital was only 8%, compared to 32.82% for California’s overall rate.

Less than 1% of women served by California LMs had premature births, as contrasted with a 12% prematurity rate nationally. According to my calculation from the LMAR for 2011, a less than 1% rate of prematurity means 325 fewer hospitalized premature babies than would have occurred if those same women had been part of the obstetrically-treated population. Just imagine what that saves the State in MediCal charges for respiratory distress syndrome (RDS) and other costs of neonatal intensive care of premature babies.

However it appears to me that the actual facts don’t really matter, nor do any of the usual reasons for fixing a problem of this magnitude. So far the politics of organized medicine always seem to trump reason, as they lurk behind a smoke screen of plausible deniability.

1999 OAL Pro-midwifery Ruling and Legal Practice by LMs 

Fixing this problem is even more important when one factors in the economic impact to the citizens of California who have to pay a drastically inflated bill for highly interventive obstetrical care in an essentially healthy population of low-income families. Many of these women would otherwise prefer to give birth in the hospital under the care of a midwife, or would have chosen the cost-effective option of midwifery care in birth centers or other non-medical setting.

While organized medicine never talks about this in public, the hidden agenda behind their insistence on supervisory control over midwifery is money. By first insisting that midwives be supervised by obstetricians, and then refusing to provide that supervision, the obstetrical profession and hospital industry has an unopposed monopoly over ALL maternity care reimbursement streams. 

This is particularly important in regard to the Medicaid-MediCal program, as 40% of all maternity care in the state is paid for by taxpayers.

The supervision clause offers the following economic advantages to the obstetrical profession:

• provides health insurance companies with a lawful excuse to not reimburse families for maternity services provided by midwives
• prevents professional midwives from independently qualifying as MediCal providers to low-income families
• prevents healthy MediCal eligible women from choosing the cost-effective options of midwifery care and birth center services (with an average C-section rate well under 10%)
• blocks access to all other options thus forcing low-income families into the most expensive, most interventive obstetrical model of care, with the very highest operative delivery rate (average rate over 32%)

Shocking Numbers for childbirth services under the Medicaid/MediCal program:

Hospitalization during childbirth is the single largest category of services provided in California hospitals. Maternity care is the single most expensive service provided by California hospitals, with Cesarean deliveries approximately twice as expensive as normal vaginal birth. Costs associated with premature babies are the single most expensive line-item for the Medicaid program. This in turn contributes disproportionately to California’s huge budget deficit.

Obviously mandatory supervision is a smashing success for organized medicine, as it guarantees business-as-usual in perpetuity. While this makes the obstetrical profession very happy, the rest of us know that it is a crazy idea — the notion that refusing to provide obstetrical care to childbearing women under care of a midwife will make things safer for mothers and babies in some magical way. These pig-head policies and turf wars have resulted in easily preventable mortalities and unnecessary medical expenses, and they will continue to do so until this problem is fixed .

The legal discrimination created and perpetuated by the supervisory provision is a special kind of hell for licensed midwives and their client families. Its like being functionally deported to a third world country, where the black market is the only market. A particularly offensive (and expensive!) example are the anti-cooperative policies of many of California’s perinatal regional centers. Even though these centers are funded by state and federal tax dollars, they won’t accept a referral from professional midwives who cannot provide proof of a physician-supervision arrangement.

Even though a mother-to-be already has an ultrasound or genetic testing that diagnosed her baby with a serious structural problem, such as a heart defect or gastroschisis (intestines of the fetus have spilled out of its body through a defect in the unborn baby’s umbilical cord), that mother must wait (and she must pay) for an appointment with an obstetrician before she can get a referral to the perinatal center. When something is horribly wrong with your baby, such as the gastroschisis referred to above (a true story), it is an already agonizing experience without being treated like a football in a turf war by the very healthcare professionals who are suppose to be helping you.

A similar instance is the refusal by Stanford’s Lucille Packard Children’s hospital to send their specially equipped and MD-staffed perinatal transport van to a sick neonate who needs hospital transfer after being born at home under the care of a licensed midwife. Based again on their internal policy that that they don’t provide services to a midwife unless she is providing care under the supervision of the obstetrical profession, the parents are instructed to call 911 to transfer by paramedic ‘rig’.

This general purpose ambulance is definitely NOT equipped for neonates and the EMTs who man it also do NOT have any special training for critical care of newborns. For several years I provided the annual in-service education class on ‘obstetrical emergencies’ to all the EMTs for a very large metropolitan area. This three-hour class did not include any clinical training and due to time constraints, included only the briefest mention of the transport needs of a compromised newborn.

My question is how bad does this problem have to get and for how long – a whole century instead of a mere 4 decades – before someone actually does something effective?

link to part 4

Legislative barriers to implementing the nurse-midwifery and licensed midwifery practice acts of 1974 and 1993

In his 1999 ruling Judge Roman pointed out that ACOG-based policies and protocols referred to above would of themselves prohibit the provision of planned home birth by qualified midwifery practitioners, making it impossible for a childbearing woman to have a professionally-attended OOH birth in the state of California and essentially negating the very practice authorized by the LMPA in 1993.

Based on a considerable body of evidence, Judge Roman established a legal foundation for the practice of midwifery under the LMPA.  In essence, his ruling stated that the Legislature, in passing the Licensed Midwifery Practice Act, acknowledged the right of childbearing women in California to choose maternity care that is ‘alternative’ to the medical model of obstetrics and furthermore that the Legislature determined that access to physiologically-based (i.e., traditional, non-medical) midwifery care by professionally-trained and state-regulated midwives was both appropriate and necessary to substantively and realistically support the constitutional choices of healthy childbearing women in a manner that was also consistent with the principles of public safety.

Under this legal theory, such fundamental patient rights and associated issues of public safety cannot be abridged or functionally nullified by company policies of med-mal carriers, competing professional organizations (such as ACOG and CAPLI) or what were described in Judge Roman’s own words as the evident “hostility” of the obstetrical profession – all situations that ultimately deny LMs access to obstetrical supervision as mandated by the same organizations which insisted that such a requirement be added to SB 350 in June of 1993

Under Judge Roman’s decision, licensed midwives are responsible for making a “good faith effort” to find a supervising physician – an MD with obstetrical privileges who practices in their geographical area who is able (according to his med-mal carrier) to provide supervision and is willing to voluntarily take on the legal burdens of vicarious liability and any substantially increased insurance premiums that is med-mal carrier may impose.

However, when no physician-obstetrician in the LM’s geographical area is willing and able to provide the mandated supervision (the case for the vast majority of LMs), then the LM, in conjunction with each of her clients, are authorized to develop an alternative plan that provides appropriate and timely access to both elective and emergent medical services. This document is then signed by both client and LM and included in the patient’s chart.

The 1999 ruling by the OAL judge was followed in the year 2000 by an amendment to the LMPA (SB 1479 ~ Figueroa). This new provision removed some requirements of the original supervisory clause and replaced them with a requirement that closely approximated Judge Roman’s decision. SB 1479 required the MBC to create a document to be used by LMs to create a specific plan in conjunction with each of their clients for medical interface (elective and emergent) during ante, intra, and postpartum-neonatal periods. This written document must be signed by both client and LM and included on the mother’s chart. SB 1479 also expanded the requirements for informed patient consent relative to OOH midwifery care, disclosure and documentation of whether or not the midwife carries professional liability insurance, and consumer info on how to file a complaint with the Medical Board about a licensed midwife who care was somehow unsatisfactory.

In 2003, the LMPA was amended again. SB 1950 (~ Sen. Figueroa) directed the MBC to adopt into regulation a midwifery standard of care and a second regulation defining the ‘appropriate level of supervision’ between LMs and MDs. A regulation defining supervision was proposed by the Medical Board in 2003, but eventually dropped because organized medicine declined to support the wording recommended by the MBC’s Midwifery Committee. However, a formal midwifery standard of care for planned home birth as mandated by SB 1950 was approved by the OAL in March of 2006.

At the February 3^rd 2012 Board meeting, the two proposed regulations presented to the Board were authorized under the legislative mandate of SB 1950. The goal of these regulations is to provide a workable solution that that is in the interest of pubic safety, consistent with the intent of the LMPA and with Judge Roman’s ruling in 1999.

To accomplish this requires two specific changes.  ACOG’s definition that obstetricians have “final authority, responsibility and liability” has been accepted as a pro-forma or de facto regulation by all California med-mal carriers since the passage of the LMPA in 1993. ACOG’s unofficial or de facto definition as adopted by CAPLI must be rejected as the basis for organizational policy because it unnecessarily creates vicarious liability. Supervision-vicarious liability resulted in a ‘categorical’ discrimination against licensed midwives and their clients because it prevents obstetricians from collaborating with licensed midwives and also prevents them from providing non-emergent obstetrical services to midwifery clients. It also prevents midwives from accessing necessary lab and ultrasound services on behalf of pregnant women they are caring for.

The other needed change in regulatory language is defining the “appropriate level of supervision” so it can actually and practically ‘promote the public safety’. The only realistic option is a consultative and collaborative relationship between the obstetrical profession and midwives relative the medical needs of the midwife’s clients. Because this collaboration regulation eliminates vicarious liability, it simultaneously provides midwives and their clients with reliable and timely access to comprehensive obstetrical services. Access to medical care is undeniably in the interest of public safety. 

As responsible citizens, we are ever mindful that ideologies about safety in relation to women’s health — whether called ‘public’ safety or ‘patient’ safety — must be supported by more than rhetoric and claims of possible benefit. To validate these claims, they must be accompanied by actions that realistically and effectively reduce harm, while protecting, preserving and promoting states of health. In the 19 years since supervision was inserted in the LMPA as ‘stepping stone to obstetrical services’, the concept of physician supervision has, in actual fact, created an insurmountable barrier to the very quality of care it was suppose to facilitate.

In addition, the imposition of this particularly flawed ‘safety’ measures as a prerequisite for access to the lawful practice of midwifery, also fails to acknowledge and account for the constitutional autonomy of healthy, mentally-competent adult women relative to their reproductive healthcare needs.

Midwifery clients are by legal definition healthy women who choosing midwives as their providers for maternity care. Since the inception of maternity care in the early 1900s, its goal and purpose has been to preserve and protect the health of already healthy childbearing women without introducing any unnecessary harm or unproductive expense. Healthy women choose midwives to meet their maternity care needs because they sincerely believe that the current standard obstetrical care in the US involuntarily exposes them to unnecessary, unwanted risks they wish to avoid. The routine use of medical interventions included increased number of inductions, invasive procedures, rate of premature births, a 32.8% Cesarean section rate.

Cesarean surgery-specific complications and post-Cesarean reproductive risks include a 6% secondary infertility rate and increased maternal mortality associated with complications in subsequent pregnancies. This includes increased risk of post-Cesarean embryo implantation in the uterine incision requiring a hysterectomy. For viable post-Cesarean pregnancies, serious complications are abnormal placenta placement or invasive growth into the uterine wall, torrential hemorrhage at the time of surgery requiring blood transfusions and emergency hysterectomy, a pulmonary embolism, drug or anesthetic reactions, admission to the ICU, and a host of more mundane post-op complications and problems such as MERSA infections and surgical adhesions.

Under an amendment of the LMPA (SB 1479, Figueroa, 2000) childbearing women in California have the right to choose ‘alternative’ forms of care for a normal birth, including PHB. Even if supervision did not create a risk to their physical well-being, it would, if implemented as ACOG defines its, deny women access to that very ‘alternative’ form of care by making them into involuntary de facto obstetrical patients. This force them back into the ACOG-defined standard obstetrical model of care, which restricts care to hospital-only birth services.

As judged by these criteria, the insurmountable barriers for both midwives and childbearing women that result from the present, untenable situation are inconsistent with the legal function of supervision as a protective measure in the interest of public safety and accounting for the right of healthy women to choose the manner and circumstance of their normal childbirth.

Link to part 3

New regulations needed because of ACOG’s de facto definition of “supervision”

One of the reasons the proposed ‘regulatory remedy’ is necessary is because the LMPA does not itself define ‘supervision’.

This was originally done to avoid inappropriate legislative entanglement (i.e. unintended consequences) and allow maximum freedom between each individual LM and her supervising MD. In theory this was a good idea, but in practice, it provided an opportunity for organized medicine to use the provision’s un-enumerated latitude to disseminate its own preferred definitions of supervision, which states that:

1. The physician is ‘ultimately responsible for patient outcome’

2. The supervising physician has ‘final authority, responsibility and liability’ 

Since passage of the LMPA in 1993, American College of Obstetricians and Gynecologists (ACOG) has repeatedly defined supervision in this language, while the California Association of Professional Liability Insurance (CAPLl) and other med-mal entities adopted ACOG’s definition to determine their own organizational policy.

While ACOG does not use the actual word ‘agency’, its unilateral definition creates a professional arrangement that is legally known as agency-agent – the outdated category called “Captain of the Ship/Borrowed Servant”. This de facto definition of obstetricians as having ‘final responsibility’ makes the midwife’s client into the de facto patient of the obstetrician, with the LM functioning as the physician’s agent.

However, obstetrics is obviously a hospital-centric surgical specialty. By insisting that the supervising obstetrician has “final responsibility”, a hospital-based obstetrical standard of care would have to be imposed on each childbearing woman the obstetrician was “ultimately responsible” for. But it is equally apparent that the clients of midwives are women who specifically chose physiological management (i.e., non-medical midwifery care) for normal childbirth in an out-of-hospital setting.

How could such a conflicted and non-consensual arrangement possibly meet the needs of the 3 entities brought together in an involuntarily relationship controlled by an absent 4^th party — organized medicine’s own policy definition of supervision:

1. The childbearing woman
2. The physician as supervisor
3. The midwife

From the perspective of the obstetrical profession, the supervisory role as defined by ACOG ultimately requires obstetricians to provide their most valuable professional asset for free.

The legally mandated co-management of the midwifery client/obstetrically–supervised OB patient is based on contract between the childbearing woman and her professional midwife. However there is no such contract between the pregnant woman and supervising OB, which means the obstetrician is volunteering to accept ultimate (legally-binding) responsibility for patient outcome and take on ‘final authority, responsibility and liability’ without any economic compensation.

The language in the LMPA’s  supervisory clause does not square with AOCG’s preferred definition, which artificially and purposefully-created vicarious liability. Since 1974 official policies of all three California mutual med-mal companies have prohibited physicians under contract with them from providing any professional services to a pregnant woman known to be planning a home birth. Any obstetrician who provides supervision faces a $25,ooo to $50,000 a year increase in their malpractice premiums and they risk having their liability coverage cancelled. If a physician were to lose his malpractice insurance, they would also lose their hospital admitting privileges and would no longer be able to practice obstetrics.

While it is ACOG and CAPLI that insist on this complex and entangling definition, neither organization is offering to compensate obstetricians for increased liability premiums or prevent the med-mal carriers from dropping their coverage. In theory supervising obstetricians could bill each supervised patient but that would increase the costs of their maternity care by many thousands of dollars. Since a very large proportion of midwifery clients are specifically choosing not to receive care from an obstetrician, billing them for obstetrician services they do not want would be untenable on several levels. Even this would not address the obstetrician’s enormous expense of defending him or herself against possible disciplinary charges relative to taking on the “final authority, responsibility and liability” for the community-based practice of midwifery.

In addition to compensation, the supervisory provision does not address a most practical issue – that midwifery is a distinct professional discipline based on physiologic (non-medical) care, while medical education in the US during the twentieth century does not teach the physiological management of childbirth as a part of their medical school curriculum. Medical students do not receive clinical training in non-medical management in during their internship or residency, nor do they have any post-graduate experience unless they’ve worked in other countries where physiologic childbirth is the norm. It would be illogical for an MD who trained in the US to assume responsibility and liability for a midwife’s practice of midwifery

Documenting 38 years of anti-midwife, anti-PHB policies by organized medicine:

In addition, ACOG’s published policies have prohibited ACOG fellows from participating in planned home birth since 1974, with the same language being re-issued in 1979, 1999, 2002, 2006, 2008. The most recent version was make even more Draconian by adding this paragraph:

 “ACOG does not support programs that advocate for, or individuals who provide, home births. Nor does ACOG support the provision of care by midwives who are not certified by the American College of Nurse-Midwives (ACNM) or the American Midwifery Certification Board (AMCB).” [NOTE: California licensed non-nurse midwives (LMs) are not certified by either of these nurse midwifery groups]

For decades ACOG policies have clearly defined any participation in planned home birth – including groups that support PHB – to be the equivalent of unprofessional conduct. This means no ACOG fellow would be willing to testify on behalf of a supervising physician in any disciplinary proceeding that included OOH midwifery care.

In the OAL case referred to earlier in this letter, the presiding judge did not address the onerous burden this provision places on supervising obstetricians. He did however identify the insurmountable barriers faced by California LMs and the childbearing women who sought out midwifery care. During the week-long administrative hearing, it came to light that organized medicine insisted Senator Killea, sponsor of the 1993 licensing bill, add the same ‘supervision’ language used in the nurse-midwifery law to SB 350, even though this provision had already proven to be an insurmountable barrier to practice for nurse midwives.

As early as September 1977 – 16 years before passage of the LMPA — the supervisory provision was well known the failure.

Nurse midwifery licensing was expected to provide cost-effective midwifery care in hospital, birth center and OOH settings that would be only 1/3 to 1/2 as expensive as the services provided by obstetricians but the poison pill of supervision kept the law from being implemented, thus destroying any hope of the much anticipated cost-savings.

This information was documented in a letter from Department of Consumer Affairs advocating AB 1896, which was a new licensing bill for both nurse and non-nurse midwives that specifically did not require any type of supervisory relationship. [read original document MfryBill-AB1896_DCA_4MedBd_Sept1977] According to the DCA’s position paper on the Midwifery Practice Act of 1978 by Deputy Director Michael Krisman:

“ … by limiting the practice of midwifery to only those situations under a doctor’s supervision … the practice of nurse midwifery has been … limited to large metropolitan hospitals where obstetrical services are most abundant. The fact that [3 yrs after passage] only 65 [CNMs] are presently practicing in California speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”. (emphasis added)

The unnecessary insertion of vicarious liability into SB 350 in 1993 at the insistence of the CMA resulted in exactly the same insurmountable barrier for LMs as befell CNMs as a result of their 1974 practice act. The reason was the same — med-mal insurance policy restrictions and/or personal preference – meant that individual obstetricians either could not or would not volunteer their services as a physician supervisor to licensed midwives.

That the intention of physician supervision was to function as a barrier to PHB services by licensed midwives was openly admitted by Dr. Vivian Dickerson, then president of ACOG, when interviewed by ObGynNews in September of 1993 about the passage of the LMPA:

“ACOG has been strongly opposed to home births for more than a dozen years. What that means, in practical terms, is physicians held out for a guarantee of supervision rather than a more collegial sort of relationship, which was, we felt, an invitation to home births. What that means, in practical terms, is that instead of the midwife being in charge and telephoning physicians for consults or referrals, the physician is ultimately responsible for the patient and sets protocols in a formal relationship”. [Sept 15, 1993]

continued — link to part 

link to part 2

Amendments and other changes to the LMPA since 1993

In the 19 years since the LMPA was passed, the original black-letter law has been legislatively modified by three amendments authored by Senator Liz Figueroa — SB 1479 ~ 2000, SB 1950 ~ 2003 and SB 1638 ~ 2006, and legally modified by a ruling in 1999 by the Office of Administrative Law (OAL).

The 1999 case brought by the MBC grew out of the inability or unwillingness of obstetricians to provide supervision to licensed midwives. A direct-enty midwife (Alison Obsorn, LM) was charged with unprofessional conduct based, in part, on her ‘failure’ to have secured the supervision of an obstetrically-trained physician, and disciplinary action was taken by the Medical Board to revoke her license.

After a week-long administrative hearing, a ruling by OAL Judge Roman provided a legal framework for practicing midwifery when all the obstetricians in a geographical area are either unwilling or unable to provide the legally essential service of supervision.

Equal-opportunity exploitation — StatutoryUncompensated Statutory Role and Burden of Supervising Obstetricians as Negotiated by :

Under the statutory provision for obstetrical supervision as described in the LMPA, physicians who volunteer to supervise LMs have no statutory duty to provide any kind of prior medical oversight to the clients of midwives. An obstetrician supervisor is not required to personally examine or otherwise pre-approve childbearing women before they can be accepted for care by the LM. Nor do supervising physicians co-manage or otherwise direct the care of midwifery clients during prenatal care, active labor, the birth or mother’s 6-week course of postpartum care. Supervising obstetricians also do not have a role in providing care or advice about the neonate at birth or during the first 6 weeks of life while it is under the care of the midwife.

The professional or ‘supervisory’ skills of the MD only come into play if or when the childbearing woman needs some form of medical service – evaluation or treatment –that falls outside of the licensed midwifery scope of practice or beyond the individual midwife’s level of skill. In these cases, the midwife or client seeks medical assistance from the physician because the pregnant or newly-delivered mother needs to be medically evaluated or treated.

At an operational level (i.e., functionally-speaking) these circumstances are, in point of fact, a consultative and collaborative relationship between the midwife, mother and medical doctor. Under these circumstances, the licensed midwife, who is trained in midwifery but not in allopathic medicine, is responsible for her practice of midwifery, while the MD, who is trained in allopathic medicine but not midwifery, is only responsible for services provided in his area of training and expertise – the practice of obstetrical medicine.

However, official documents from med-mal carriers, CAPLI and ACOG (from 1974 to the present), attest to the fact that physician supervision of licensed midwives as currently interpreted by organized medicine is a relationship of agency — one legally known as “captain-of-the-ship/borrowed servant”. The same California med-mal carriers who promoted the idea that physician supervision is an agent-agency relationship, turned around and prohibited insured MDs from participating due to the vicarious liability that ‘agency’ inevitably creates.

The following comment is quoted directly from a letter written May 18, 1999 by the NORCAL Mutual Insurance Company to Dr. Connie Basch, MD, director of a medical clinic in McKinleyville, Ca:

Re: Risk management recommendation on the supervision of midwives.

EXCLUSIONS AND LIMITATION ON COVERAGE
a. physicians cannot supervise, consult with, or back-up any midwife for a *homebirth

If an unlicensed or a home birth midwife calls for advice of any kind, explain that *you cannot give advice (otherwise you are engaging in supervision, which is not covered under your policy, as discussed above). {*emphasis in original}

If an unlicensed or a homebirth midwife calls to report an emergency situation, tell him/her to call 911 in order to have the patient transported to the hospital. Do not give any other advice. Document the conversation.

Legislative History & Background of the Current Impasse

According to published records of the legislative hearing in August of 1993 (Assembly Health Committee), lobbyists for CMA described physician supervision as a relationship that was specifically in the interest of the public by increasing ‘patient safety’. The CMA promoted physician supervision of midwives as a ‘safety measure’, which they described as a stepping-stone to comprehensive obstetrical services in case a midwife’s client developed a complication during pregnancy or in relation to childbirth.

From the perspectives of midwives, it doesn’t matter what the relationship is called. However, midwives do care deeply (and so should everyone else) that the arrangement between MDs and LMs lives up to the patient safety goals identified by the CMA officials who subsequently insisted that ‘supervision’ be added to SB 350 [press release Senator Killea’s office, June 7, 1993].

If the process worked as the CMA described, LMs could easily consult and collaborate with obstetricians, and individual physicians with obstetrical privileges would be able to provide the midwife’s PHB clients with direct access to required medical care and hospital-based services.

During negotiations between  the CMA and the bill’s author (Sen. Killea), she only agreed to the last-minute addition of the supervision clause after the CMA personally promised her that they would “see that physicians provided the necessary supervision”. This was a promise they could not (and did not) keep. Equally important, the supervision-vicarious liability status is as onerous and detrimental to obstetricians and childbearing women, as it is to professional midwives.

Health care professionals are far more interested in seeing that physicians are able and willing to cooperate with midwives and childbearing women who choose their services than arguing about the legal wording of this arrangement. Nonetheless, it should be noted that the word “supervision” has an economic meaning that is troubling. Any health care profession whose license mandates physician supervision falls into a legal category known to as “mid-level practitioners”.

Current law prohibits mid-level practitioners from being directly reimburses by the federal Medicaid (MediCal) program. WHen it come to maternity care,  40% of all births in California are reimbursed by the federal government’s “Medicaid” program and matching funds from the state. Using the word “supervision” means MediCal eligable women can’t choose to give birth with professional midwives who provide OOH care and the State (i.e., its taxpayers) can’t take advantage of the substantial savings associated with non-institutional care.

 ~ The LMPA does not define ‘supervision’ but ACOG does.  It is ACOG’s preferred definition that makes supervision unworkable. 

Continued ~ link to Part 4

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 doctor “responsible 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

Please note — The information in this 5-part series is vital to attempts to amend the LMPA, whether by midwives, organized medicine or the Medical board.

Due to the important nature of the material I have posted draft versions of all 5 parts and every part needs additional attention. Anyone who wished to take this on (for one or all 5 parts) can email me at faithgibson at mac dot com. After I confirm your credentials, I’ll be happy to provide administrative privileges you can access and edit the material via WordPress on the internet.

You don’t need anything other than a computer, web connection, to be a good speller and have modest editing skills.

Part 1 (of 5): The Legislative History of California Midwifery Laws & the Licensed Midwifery Practice Act of 1993

Legislation creating the first state-regulated practice of  direct-entry midwifery practice (traditional non-medical, non-nurse practitioners was passed in 1917. This traditional (non-nurse, non-medical) discipline of midwifery included a Medical Board-approved curriculum that specified the same 165 hours of didactic education in obstetrics and hygiene as medical students, plus a specified period of clinical training. Midwives credentialed under this provision held an active license to practice midwifery in California until the last of these midwives retired in 1981.

In 1993 language in the LMPA repealed the 1917 provision. Like the original midwifery law, the LMPA identifies midwifery as distinct from the practice of medicine, stating that: “the holder of a licensed to practice midwifery is not authorized to practice medicine or surgery”. However, the LMPA modernized the traditional practice of midwifery by incorporating specific midwifery training and authorization for the use of a limited & specified number (7) of preventive and emergent drugs. This is not qualitatively different than the authorizing legislation of other categories of non-physician practitioners.

The LMPA defines the contemporary practice of traditional (non-medical, non-nurse) midwifery in California – physiologically-based care of pregnancy and normal childbirth in an essentially healthy childbearing population. This category, also known as ‘direct-entry’ midwifery, describes an educational pathway and comprehensive training program that directly teaches the body of knowledge and technical skills of midwifery without requiring the student to first become a nurse or be simultaneously trained in both nursing and midwifery.

However modern midwifery education does includes training in the many of the same technical and medical skills that are jointly shared by the medical, nursing and other healthcare professions. This include monitoring vital signs (maternal blood pressure, pulse, fetal heart rate, etc), starting IVs and giving injections. These skills are consistent with the LMPA, which authorizes LMs to use a specific list of prophylactic and emergent drugs and associated medical supplies. The 1993 licensing law includes the same scope of practice, a modern curriculum and clinical training as the nurse-midwifery practice act and defines that legal status of licensed midwifery practice to be “equivalent, but not identical,” to nurse-midwifery.

Midwives licensed under the Act are also trained to recognize signs of complications in pregnant and laboring women, unborn fetuses and newborn babies. In event of  a complication, or if requested by the mother, the LMPA requires that LMs transfer the childbearing woman or neonate to the care of a medical doctor for evaluation or treatment.

Midwifery ~ neither a ‘lay’ practice or a medical profession

The LMPA and all other midwifery-relative statutes make it clear that licensed midwifery is neither a ‘lay’ practice — what the W.H.O. calls ‘traditional birth attendants’ — or a sub-set of allopathic medical practice (drugs and surgery), which would put LMs into the category known as ‘physician-extenders’, such as physician assistants and nurse-practitioners.

‘Healing Arts’ statutes passed by the California legislature from 1876 to the present never defined care during normal childbirth (the universal definition of midwifery) to be a medical activity that was delegated by an MD to the midwife, nor was assisting a woman during normal childbirth identified as an activity restricted to those with a license to practice medicine. From 1876 to 1917, the words “childbirth”, “midwife” and “midwives” do not appear in anywhere in the Healing Arts legislation.

History of the 1917 Provision

The first provision for the state-certification of midwives was introduced in 1917 as part of an amendment to the 1913 Medical Practices Act. This provision also included a ‘grandmother’ clause for certifying currently practicing midwives and an educational curriculum and other qualifications for the state-certification of future midwives. However, this statutory scheme did not restrict the practice of midwifery to state-certified midwives, nor did it define assisting a woman during a normal childbirth to be any form of unauthorized practice of medicine or identify the lay or unlicensed practice of traditional midwifery to be illegal.

Penalties introduced by the 1917 provision were to prohibit midwives from using drugs or surgical procedures, such as forceps and reaching up into the uterus to remove an adherent placenta, and to punish any failure to make a timely referral to an MD for a laboring woman or newborn with one of the complications listed in the statute. These and other stipulated activities were formally deemed to be an illegal practice of medicine that would result in the revocation of the midwife’s state-certification (equivalent to a modern license).

In essence the 1917 statute legally established the categories of ‘boy toys’ (practice of medicine) and ‘girl toys’ (practice of midwifery) and plainly marked the former as off-limits to midwives. This was reiterated in the language of the 1917 provision — language also included in the 1974 nurse-midwifery act and the 1993 LMPA,  stating that “a license to practice midwifery does NOT authorize the the holder to practice medicine or surgery”

This legal status of midwifery established in the 1917 provision remained in effect until 1976, when a stare decisis — Latin for a binding decision by the State Supreme Court that ‘creates’ law via their interpretation — ruled that the unlicensed practice of midwifery was henceforth defined as an illegal practice of medicine, and therefore a criminal offense in the state of California. That ruling, known as the Bowland Decision, is the source of the Medical Board’s policy that identifies lay practice of midwifery as an illegal activity.

The LMPA clearly states that the holder of a license to practice midwifery is not authorized to practice medicine and surgery. This establishes midwifery as a professional discipline in its own right that is qualitatively different from the surgical specialty of obstetrics and puts midwifery in a legal category known as a “distinct calling”.

Historically the midwifery profession has had its own unique history, a discipline-specific educational curriculum that includes a clinical training component, an enumerated scope of practice, and its own standard of care that is distinct from the practice of medicine. The scope of practice and the educational requirements for training in the 1993 LMPA define licensed midwifery as having a legal status that is “equivalent but not identical” to the profession of nurse-midwifery.

Since full implementation of the law in 1996, approximately 27o midwives have been licensed, with about 125 LMs actively providing OOH birth services in 2011, the most recent years that statistics are available. By comparison, there are over a 1,000 certified nurse midwives (CNMs) who are licensed under the 1974 nurse-midwifery practice act. CNMs in this state are generally employed in clinics, doctor’s offices, birth centers, and hospital-based midwifery services. Due to the physician supervision issue, it’s rare for California nurse-midwives to provide out-of-hospital (OOH) birth services.

Under the regulatory authority of the LMPA, the Medical Board adopted a standard of practice for licensed midwives in March of 2006 that is consistent with providing professional midwifery care to healthy women in OOH settings. Since 2007 annual reports for all licensed midwives have been complied and published by the Officie of State-wide Health Planning and Development (OSHPD). During 2011 California LMs provided prenatal care to over 3,400 women and attended approximately 2,600 PHB.

The normal spontaneous birth rate for childbearing women attended by California LMs is 92%, with 7% Cesarean section rate among those women who were transfered to the hospital before or during labor. Premature birth rates for California mothers receiving prenatal care from LMs is under 1%, while the overall rate in the US is 12%. The reduced numbers of premature babies and Cesarean deliveries lowers the cost of medical care, which results in a substantial saving to the State’s Medi-Cal program. (get accurate numbers for all categories from last yrs LMAR and other references)

link to part 2: