California College of Midwives

Originally published in the California Watch 

Founded by the Center for Investigative Reporting

Access to Affordable Maternity Care in California by
Professionally-licensed Midwives

The re-classification of the midwifery profession as a medicalized discipline in 1974 was economically advantages to medical profession, but detrimental to midwives, childbearing families and California taxpayers.

A problematic aspect of midwifery as a medicalized discipline is the economic effect on these non-physician practitioners and on public policy and taxpayer supported healthcare programs such as Medicaid/MediCal. MD-centric midwifery licensing laws created to a professional role between midwives and physicians formally described by the AMA as ‘physician-extenders’.

Under a labyrinth of counter-intuitive law, doctors are allowed to bill government programs and insurance companies at MD rates for services provided by any ‘physician extender’ practicing under his or her supervision.  This dubious billing practice allows physicians to charge for a doctor’s office visit, even when the patients is cared for by a nurse practitioner and is never seen by the doctor.

According to a Health Task Force report from the Medical Board of California (Draft version – Oct 05, 1993), this dubious but legal practice is entrenched and widespread. While the follow material doesn’t mention professionally-licensed midwives, both CNMs and LMs are included in category of “allied health care professionals”:

• “…. Between 1980 and 1991, the population increased 26% while physicians increased 29%, chiropractors and Physician Assistants increased 171%. …
• Although California experienced a dramatic increase in health care professionals, this has not solved or even alleviated the problem of the underserved areas.
• ….the hiring of additional allied health care professionals has not really done anything to benefit patients.
• …the manner in which they are being hired and used now, 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 saving to the patient.”

This is a direct violation of the North American Free Trade Agreement and specific instructions from the California Department of Consumer Affairs. A memorandum to all its bureau chiefs refers to a request by the Governor’s Trade Representative and asks that each state agency prepare a plan to implement the NAFTA. The memorandum, dated 09/04/92, notes that the “anti-competitive” impact of NAFTA specifically disallows:

• “any licensing or certification statues, regulations or procedures which are not based on objective and transparent criteria, competence, and the ability to provide the services or which are more burdensome than necessary to assure quality of the services”.

NAFTA’s objective is to prevent licensing requirements from being “unnecessary barriers to trade” and that any state licensing requirement:

• “… not constitute a disguised restriction of the provision of services ….. Requirements should be based on competence”.

These views were reiterated in a letter from the Federation of State Medical Boards by Dorothy Harwood, (01-11-94) who noted that:

• “State medical board licensing standards are not pre-empted”.

Thus far, the medical profession has not been required to abide by the “objective and transparent” licensing criteria required by NAFTA.  As recently as October 2012, a popular website for physicians — Medscape  ~ posted an article called: “Ways to pump up your bottom-line”. Ideas included information about the supervision of physician-extender practitioners, third-party reimbursement policies and various other tips for increasing one’s medical business.

A proven strategy for ‘pumping up’ the profitability of a physician’s medical office was to take advantage of a legal situation engineered decades ago by organized medicine. The ‘physician-extenders’ classification impacts many states, including California, and means that it is illegal to practice independently (i.e. not under medical supervision).

Since these nurse-midwives are prevented from practicing independently, a hospital-based birth practice would seem to be the next best choice. However that also can’t be done without a physician ‘sponsor’. This is a particular category of medical supervision relative to hospital privileges, which are not independently available to midwives. In the last decade almost all of the largest, busiest, most long-running and most highly respected nurse-midwifery services in the US (including Stanford) were shut down by their hospital’s obstetrical department.

In some cases, local obstetricians were vocal about ‘not liking the competition’. In others, hospital administrators claimed midwifery services didn’t generate enough ‘billable units’ and thus were not profitable. Bases on the severely restrictive nature of these laws, the only viable choice left for a CNM is to become a physician-extender.  One not-so-surprising consequence is a precipitous drop in the annual number of nurse-midwifery students, which went from an average of 500 to merely 200 last year.

However, MD-friendly economic policies are still very much to the advantage of the medial profession, which is lawfully permitted and encouraged to exploit their ‘mid-levels’ as a profit center for their medical offices.

The Medscape article notes that: “mid-levels are paid less than physicians”. Then the article goes on to say that services provided by mid-levels who are “under direct supervision by a physician, mid-levels command the reimbursement as physicians”.

As the MBC’s October 1993 Health Taskforce Report makes clear, the ‘commanded’ Medicare reimbursement is not income for the nurse practitioners or professional midwives who work in the doctor’s office, but instead is additional revenue for the physician.

Here is an excerpt from Medscape’s primer on how doctors can pump up their bottom line by exploiting MD-friendly economic policies. These laws specifically allow physicians to benefit financially by exploiting the category of  “physician-extenders” — nurse practitioners, professional midwives and physician assistants:

“With more covered patients seeking doctors and the threat of declining reimbursements in the long term [under the new Affordable Care Act of 2009], doctors are under pressure to see more patients.

Hiring mid-level providers, mainly nurse practitioners and physician assistants, is a good way …

And because mid-levels are paid less than physicians, they can spend more time with patients. They can deal with less complex cases and give patients unhurried, personal attention…

When they are under direct supervision by a physician, mid-levels command the same Medicare reimbursement as physicians.

Bringing a new midlevel into the practice should be coordinated with a marketing campaign that bumps up the number of patients in the practice…” [ref: Medscape Oct 25, 2012 – advice MDs on “How to Pump up your bottom line” by hiring more ‘mid-levels’ to increase revenue.]

The idea of physicians profiting from the services another healthcare profession is a double standard as judged by the medical profession’s own tradition. The AMA considers it “unethical” for any non-physician to make a profit on the services of a physician.

In 1934, during one of the worst years of the Great Depression, the AMA’s Judicial Council amended their Principles of Ethics by making it:

 ‘unethical for any physician to dispose of his services to any lay body, organization, group or individual under conditions that would permit the lay body, organization, group or individual to receive a profit on the doctor’s services’ [from the AMA’s Web site Timeline data for 1934]

Obviously, the AMA’s ethics of non-exploitation only apply to physicians and not to those healthcare professional that they label “physician-extenders”.

They totally ignore this definition of  ‘ethical’ practice when it comes to non-physician practitioners, as documented by the Resolution recently passed by the House of Delegates, which is the AMA’s ruling body:

H-35.993 Opposition to Direct Medicare Payments for Physician Extenders

Our AMA reaffirms its opposition to any legislation or program which would provide for Medicare payments directly to physician extenders, or payment for physician extender services not provided under the supervision and direction of a physician. (CMS Rep. N, I-77; Reaffirmed: CLRPD Rep. C, A-89; Reaffirmed: Sunset Report, A-00)

H-35.988 Independent Practice of Medicine by “Nurse Practitioners”

The AMA, in the public interest, opposes enactment of legislation to authorize the independent practice of medicine by any individual who has not completed the state’s requirements for licensure to engage in the practice of medicine and surgery in all of its branches. (Sub. Res. 53, I-82; Reaffirmed: A-84; Reaffirmed: CLRPD Rep. A, I-92; Reaffirmed: BOT Rep. 28, A-03)

California College of Midwives

Contact: faithgibson@mac.com

California College of Midwives
Access to Affordable Maternity Care in California by Professionally-licensed Midwives

• What happens when the legacy practice of midwifery as a personalized form of care is reclassified as a medicalized, physician-dependent discipline?
• What happens when the traditionally non-medical skills of midwives are legally defined as ‘medical activities’ to be delegated and supervised by MDs?

Historical Background: Midwifery was an independent profession in California from its statehood in 1876 to 1981. Its practice was lawful but unregulated for the first 41 years. Then in 1917, the state-certified practice of midwifery as an independent profession was created by the California Legislature.

To qualify, students were required to complete a midwifery educational program approved the State Medical Board and pass a state-licensing exam. The 1917 law prohibited state-licensed midwives from practicing medicine or surgery, which meant they could not administer drugs, use forceps or other “artificial, forcible or mechanical means” during childbirth. The licensing law also required midwives to transfer any mother or baby who developed complications to the care of a physician.

However, laws governing the legacy practice of midwifery as a non-medical discipline never required medical supervision. This was noted in a Legislative Memo from Governor Earl Warren’s office dated July 8, 1949, which confirmed the independent nature of state-licensed direct-entry 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.”

Unfortunately the original 1917 provision did not permit the licensing of additional direct-entry midwives after 1949. The last legacy practitioner of midwifery retired her license in 1981. By this time, many states had replaced the traditional practice of midwifery with the new category of nurse-midwifery. These were registered nurses who successfully completed an additional year of hospital-based training in midwifery became certified nurse midwives (CNMs). California passed it’s own the Nurse-Midwifery Practice Act in 1974.

The Legislature’s Intent for the new profession was stated in the preamble to the nurse-midwife practice act. Accordingly, the legislative purpose was to make the midwifery model of care accessible in hospitals and out-of-hospital (OOH) settings by authorizing CNM to provide maternity services in underserved areas of the State and to low-income Medicaid-eligible women and families seeking alternatives to customary obstetrical services.

But unlike the legacy practice of midwifery, which was an independent profession in California for 105 years, the new law classified nurse-midwifery as a physician-dependent, medically-supervised discipline. The law stipulated supervision of CNMs by the medical profession as a prerequisite of lawful practice.

For the first time in California history, the ability to legally practice midwifery depended entirely on sympathetic physicians volunteering to provide supervision and agreeing to be vicariously liable for the nurse-midwife’s practice. This put the midwifery profession in the same physician-dependent category as the nursing profession.  Governor Earl Warren’s 1949 memo commented on the status of nurses, saying:

“All these duties are to be performed under the supervision of a physician.”

This functionally defined the all the professional activities of midwifery practice — from taking a pregnant woman’s blood pressure to attending normal childbirth — as delegated medical activity, which in turn grants control over the midwifery profession to the medical profession.  This produces a professional role for the midwife that the AMA and physicians describe as a ‘physician-extender’, which puts midwives in the same category as nurse practitioners, nurse anesthetists, and physical therapists.

Once midwifery is defined as a ‘delegated medical activity’, the authority to actually practice this profession does not derive from the state-issued midwifery license. While licensure is a necessary pre-condition, it is not an authorizing one. The authority to practice midwifery comes from, and ONLY from, the legally-identified physician supervisor of each specific midwife.

As described by organize medicine, each specific supervising MD is charged with the “ultimate authority, responsibility and liability” for the particular midwife under his control. This physician determines which of the midwifery-related ‘medical’ activities listed in the Nurse Midwifery Act of 1974 and the LMPA of 1993 will be delegated to the midwife under their supervision, and under what circumstances. At a practical level, the supervising physician is the origin of the midwife’ authority to provide prenatal care, listen to fetal heart tones during labor, or administer an anti-hemorrhagic drug to a postpartum mother who bleeds excessively.

While reclassifying midwifery as a medically-delegated activity controlled by the supervising physician, these very same laws do not require that any physician in California provide this legally mandated supervision. This allows the medical profession to decide if the midwifery model of care is or isn’t available in the state of California, and if so, under what MD-determined conditions. If 100% of the members of the medical profession decline to participate as a supervising physician, then 100% of the professionally-licensed midwives in California would be unauthorized to provide the delegates medical activity of midwifery, and 100% of childbearing women who reside in California would be unable to access midwifery care. Unfortunately the current laws grant members of the medical profession to override the intended implementation of the Legislature’s two midwifery practice.

According to the North American Free Trade Agreement of 1992, this constitutes a “disguised restriction of the provision of services”. NAFTA specifically prohibits:

 “any licensing or certification statues, regulations or procedures which are not based on objective and transparent criteria, competence, and the ability to provide the services or which are more burdensome than necessary to assure quality of the services”.

In order to prevent “unnecessary barriers to trade”, NAFTA decrees that state licensing requirements: “… not constitute a disguised restriction of the provision of services ….. Requirements should be based on competence”.

Nonetheless, the California Medical Association and ACOG continue to define professional midwifery as a delegated medical activity that can only be practiced under the authority of the medical profession. But simultaneous with the provision in both midwifery practice acts mandating physician supervision, obstetrical and pediatric groups issued official policy statements denouncing all childbirth-related care in non-medical settings. These policies prohibit obstetricians from supervising midwives that provide care in OOH locations.

In addition, all three California malpractice insurance carriers also prohibited physicians from supervising midwives who provide OOH care. As a result, obstetricians were either unable or unwilling to provided the legally essential service of medical supervision.

Within 3 years it became clear that classifying nurse-midwifery as a physician-dominated discipline was a dismal failure. The inability of CNMs to carry out the published ‘Intent’ of the Legislature was due to “structural barriers” that classified the midwifery profession as physician-supervised discipline and mandated medical supervision.

The fatally-flawed nature of this provision was well-documented by a 1977 letter from Department of Consumer Affairs, September 09, 1977. During his first administration, Governor Brown was an active supporter of several legislative attempts to correct this problem. However 36 years later, the situation is unchanged and all of these same ‘structural barriers’ continue to apply to CNMs and LMs both:

“ …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.

… speaks to the potency of these structural barriers in limiting the practice of nurse-midwifery”. [position paper on the Midwifery Practice Act of 1978; Michael Krisman, DCA]

These ‘structural barriers’ prevented CNMs from practicing independently, which would have allowed them to work with women living in places without access to maternity services and in free-standing birth centers that provided care to families looking for an alternative to conventional obstetrical care.

Instead, this restrictive law forced the majority of CNMs in California to work in clinics and the offices of obstetricians as “physician extenders”. Many other CNMs took jobs as nurses in the labor & delivery department of hospitals. As a result, the new healthcare profession created in 1974 did nothing to alleviate the very problems the nurse-midwifery law was designed to address.

In 1993, the Licensed Midwives Practice Act once more created the state-regulated profession of traditional or direct-entry midwifery.  The legislative intent of the LMPA expressed the same expectations outlined in the nurse-midwifery law — in this case, that the new profession of licensed midwives would make the Midwifery Model of care available in underserved parts of the state, to low-income Medicaid-eligible families and those wanted childbirth alternatives to conventional obstetrical practices.

Unfortunately, the political influence of organized medicine insisted that the legal relationship between direct-entry midwives and physicians mirror those in the nurse-midwifery licensing law. As a result, the LMPA simultaneously repealed the 1917 statue that had defined the legacy practice of midwifery as an independent profession, and re-classified the direct-entry midwifery to be a medicalized discipline that required physician-supervised, with the identical restrictions already placed on CNMs.

While the medical profession always insisted that physician supervision was a vital stepping-stone to timely medical services, it in fact has proven over the last 39 years to be a stumbling block of massive proportion. It creates ‘vicarious’ liability for physicians, it prohibits midwives from being able to consult and collaborate with doctors or and it often denies childbearing women access to non-emergent medical services such as ultrasounds and referrals to perinatal regional centers.

California College of Midwives
Contact: faithgibson@mac.com

BMC Pregnancy Childbirth. 2013 Apr 3;13(1):83. [Epub ahead of print]

A survey of access to trial of labor in California hospitals in 2012.

CONCLUSIONS:

Despite the 2010 NIH and ACOG recommendations encouraging greater access to TOLAC, 44% of California hospitals do not allow TOLAC. Of the 56% allowing TOLAC, 10.8% report fewer than 3% VBAC births. Thus, national recommendations encouraging greater access to TOLAC had a minor effect in California.

Barger MK, Dunn JT, Bearman S, Delain M, Gates E.

Abstract

BACKGROUND:

In 2010, the NIH and ACOG recommended increasing women’s access to trial of labor after cesarean (TOLAC). This study explored access to TOLAC in California, change in access since 2007 and 2010, and characteristics of TOLAC and non-TOLAC hospitals.

METHODS:

Between November 2011 and June 2012, charge nurses at all civilian California birth hospitals were surveyed about hospitals’ TOLAC availability and requirements for providers. VBAC rates were obtained from the California Office of Statewide Health Planning and Development (OSHPD). Distance between hospitals was calculated using OSHPD geocoding.

RESULTS:

All 243 birth hospitals that were contacted participated. In 2010, among the 56% TOLAC hospitals, the median VBAC rate among TOLAC hospitals was 10.8% (range 0-37.3%). The most cited reason for low VBAC rates was physician unwillingness to perform them, especially due to the requirement to be continually present during labor.

TOLAC hospitals were more likely to be larger hospitals in urban communities with obstetrical residency training. However, there were six (11.3%) residency programs in non-TOLAC hospitals and 5 (13.5%) rural hospitals offering TOLAC. The majority of TOLAC hospitals had 24/7 anesthesia coverage and required the obstetrician to be continually present if a TOLAC patient was admitted; 17 (12.2%) allowed personnel to be 15-30 minutes away. TOLAC eligibility criteria included one prior cesarean (32.4%), spontaneous labor (52.5%), continuous fetal monitoring and intravenous access (99.3%), and epidural analgesia (19.4%).

The mean distance from a non-TOLAC to a TOLAC hospital was 37 mi. with 25% of non-TOLAC hospitals more than 51 mi. from the closest TOLAC hospital.In 2012, 139 hospitals (57.2%) offered TOLAC, 16.6% fewer than in 2007. Since 2010, five hospitals started and four stopped offering TOLAC, a net gain of one hospital offering TOLAC with three more considering it. Only two hospitals cited change in ACOG guidelines as a reason for the change.

Conclusion (pasted at the beginning of post)

PMID: 23551909

[PubMed – as supplied by publisher]

http://www.ncbi.nlm.nih.gov/pubmed/23551909

For 20 years following the Bowland Decision we thought restoring the legacy practice of traditional midwifery was IMPOSSIBLE, but in 1993 we finally prevailed.  

For the next 20 years we were told that restoring the independent nature of midwifery was totally IMPROBABLE. While sustained efforts by midwives, Senator Figueroa, Dr Fantozzi, Anita Scuri and many others moved the ball down the way down the field, our ultimate goal remained frustratingly elusive.                                 

This time is different. I am throughly convinced that 2013 is our lucky year — our success now is INEVITABLE.

So in moments of doubt, remember these 3 “I” words:  Impossible,  …..  Improbable, ….. INEVITABLE !

At the Senate Business and Professions Committee’s Sunset Review hearing on March 11^th (2013), Senator Rich Gordon (chair of the Committee) referred to the legally required supervision of midwives by physicians as an issue of “changing the relationship issue between midwives and physician”.

The re-framing of this confusing and contentious issue by Senator Gordon was nothing short of brilliant. I’ve been involved in this struggle for 33 years and never figured out that simpler and far better way of talking about this issue. For decades our attempts to inform legislators, journalists, lawyers and the public about this problem has been elusive, but not any more!

But instead of the mind-numbing polysyllabic phrase “ eliminating physician supervision” (eyes glaze over) it’s possible to quickly and deftly describe this issue as a ‘relationship’ problem.  So here is the 40 year-old story of the legislatively-defined ‘relationship’ between midwives and physicians in California:

Four decades ago, the medical profession insisted that midwifery in California be re-classified from an independent profession to a physician-dependent medical discipline. [1] Legislative Memorandum- Gov. Earl Warren, July 8, 1949, on the topic of state-licensed midwives “… according to Section 2140, this type of practitioner operates independenty and not under the supervision of a physician”.

As a ‘physician-supervised’ activity, MDs are identified as having “ultimate authority, responsibility and liability” for the practice of midwives.[2] NorCal may 18, 1999 letter

This new ‘relationship’ conferred control over the practice of midwifery to the medical profession. As a medicalized discipline, representatives of organized medicine stated that the only appropriate standard of care for the practice of midwifery was one that conformed to the standards published by the American College of Obstetricians and Gynecologists (ACOG). [3] CAPLI letter August 2003 letter

As a physician-dependent medical discipline, professionally-licensed midwives are only authorized to provide midwifery care if they are able to locate a specific physician in their immediate area who will voluntarily provide the legally-essential services of obstetrical supervision. Physicians are limited supervising no more than four midwives at time. [4] Sec. 2507 & 2508, LMPA

Having authority, responsibility and liability over the actions of another professional inevitably creates ‘vicarious’ liability.  As a result of the increased liability risk, med-mal carriers in California prohibit their insured physician from entering into any type of professional relationship with a midwife providing OOH care, irrespective of what word is used to describe the relationship (collaboration, supervision, back-up, etc). [5] NorCal may 18, 1999 letter

If a midwife doesn’t have a supervisory relationship, or her specific physician is unavailable, the vicarious liability associated with a midwifery as a physician-dependent discipline prevents non-supervising doctors from consulting or collaborating with midwives. [5] NorCal may 18, 1999 letter

As a result the relationship between the two professions in California is one in which midwives depend on medical doctors in order to be able to practice.  If physicians are unable or unwilling to volunteer for this essential role, midwives are unable to satisfactorily provide care to childbearing women. It’s simple as that.

This small but crucial change in perspective — focusing on the relationship aspect instead of the issue of supervision — helped me to see things from the other end of the telescope.  As midwives, we each tend to think about the problem of supervision based on our personal experience:

(a) In my geographical area not a single OB or any other physician with obstetrical hospital privileges will voluntarily enter into a supervisory relationship me or other LMs, often citing policies of their med-mal carriers, which prohibit such arrangements

(b) When I try to order necessary labs and ultrasound exams for my clients or emergency medical supplies for our practice, many companies and service providers refuses to do business with me when I’m unable to either provide a requisition signed by an MD or give them the name of my supervising obstetrician

(c)  When I apply to be a Medicaid/MediCal provider, I learn that I can’t qualify because I don’t have documents identifying a specific obstetrician who has agreed to supervise my practice of midwifery

(d) When I bill a client’s health insurance provider for my professional services, my invoice is rejected unless I can provide the name of a supervising obstetrician. Some of these companies only reimburse the obstetrician for services provided by midwives under their supervision

(e) When I refer a pregnant woman with an abnormal finding to state-financed regional perinatal center for evaluation, they refuse to see her because I can’t provide the name of my supervising physician

(f)  When I call the regional perinatal center for a perinatologist-staffed special NICU equipped transport van to pick up a sick baby born at home, they refuse to come because I can’t provide the name of my supervising physician

(g) On those rare occasion when I have to transfer a client during labor, the OB on call demands to know who my supervisor is, bawls me out in front of the nurse and my client’s family for being irresponsible and practicing ‘illegally’.

On many occasions, they also threaten to call the Medical Board and report me. I feel humiliated and afraid, even though I am in compliance with the criteria established by Administrative Court Judge Roman in his 1999 ruling and the LMPA as amended by SB 1479 in 2000 (sec. 2508).

What is also immediately clear is that the mechanics of ‘supervision’ is not the actual issue. All three California med-mal carriers see all physician ‘relationships’ with all midwives who provide OOH birth services as potential source of vicarious liability.  It’s no surprise that all carriers domiciled in California prohibit ANY and all such relationships between insured physicians and midwives.

Of course, there are two very different ‘cures’ for this manufactured dilemma. The first is to maintain the current legislative scheme for the CNM and LM licensing acts, while adding the following provisions to the Medical Practice Act and laws regulating professional liability insurance in Caliornia:

* Require physicians with obstetrical privileges to provide consult, collaborate and supervise midwives as an obligation of their state license to practice medicine. 

** Require med-mal carriers to cover incidental liability associated licensed midwives as a part of the standard coverage of obstetricians covered in our state.

*** Create a legislative scheme to monitor the consequences of physician supervision of midwives to determine if this law is working in accordance with the overall intent of the LMPA and provide a report to the Legislature in 2 years on the following:

(a) to increase access to prenatal care and other maternity care services, and reduce the incidence of unattended childbirth, pregnant women in California, including low-income Medicaid/MediCal eligible families, must have unfettered access to state-regulated midwifery services  

(b) that it be determined that neither midwives nor physicians are being systematically exploited by any provision of these laws  

Personally, I don’t believe that physicians OR midwives would be very happy with the legislative “remedy” suggested above.

So my next suggestion is:

Return the practice of midwifery to its original classification as a independent profession. This would instantly eliminate the vicarious liability inherent in the current legislative scheme. This is consistent with the traditional historical and worldwide practice of midwifery as collegial and cooperative relationship between midwives and physicians.

In the UK midwives are recognized as professional practitioners in her their right.  Code #1 of the Code of Practice formally described the “Midwife/Doctor Relationship” by noting that:

“the responsibilities of the doctor and midwife are so inter-related and complementary that the necessary degree of co-operation can only be ensured by a mutual recognition of their respective professional positions.” [Rules of the Central Midwives Board, Handbook –  1962]

As a properly independent profession the risk of vicarious liability would no longer be a problem. A midwife, who was trained in midwifery (but not medicine) would only be responsible for her practice of midwifery and physicians, who are trained in medicine (but not midwifery) would only responsible for his area of professional training.

Continued to part 2: What to do with or about our midwife-physician “relationship” problem?

Introduced by Assemblywoman Susan Bonilla on Feb 22nd
Most recent up-date ~ 03.21.13

This is the latest version. It is moving through committees of both Houses of the Legislature as we speak.

The key to reading ‘mark-up’ language is simple:

Text in the color BLACK means ‘no change’ from existing law; BLUE means new and RED means ‘strike-through’ or replaced.

Happy trails and stay tuned for updates.

AB 1308:
SECTION 1. The Legislature finds and declares the following:

(a) Licensed midwives have been authorized to practice since 1993 under Senate Bill 350 (Chapter 1280 of the Statutes of 1993), which was authored by Senator Killea. Additional legislation, Senate Bill 1950 (Chapter 1085 of the Statutes of 2002), which was authored by Senator Figueroa, was needed in 2002 to clarify certain practice issues. While the midwifery license does not specify or limit the practice setting in which licensed midwives may provide care, the reality is that the majority of births delivered by licensed midwives are planned as home births.

No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.

This is a perfectly WONDERFUL document written by Nancy Chavez, Senator Killea’s legislative aide, in the weeks following passage of SB 350 (the LMPA of 1993).

NancyChavez_Advice_1993

I scanned and saved it as a PDF, so it has to be read page by page (total of 3) but it is so well worth your time. The document is too good for me to try to paraphrase — just read it and then go over it a second time so your mind can connect up all the dots.

However, I do want to point something out about what Nancy Chavez’ identifies as the tension between ‘opinions’ and ‘facts’. In the section she calls “Be Prepared”, she advises midwifery activists not to express interact with members of the Legislator or Medical Board based on our personal opinion of the situation (which for me can ONLY be fully expressed by screaming into a pillow!), but instead provide simple factual statements of the kind that can be backed up by  documents and records that would be admissible in a Court of Law.

I’ve  developed  a resonantly effective ways to do acquire, archive and am happy to share the kind of document that Nancy Chavez describes as the basis of a fact-based conversation.

Since I was arrested and prosecuted in August 9th, 1991, I have been come a first a student, and then an archivist of historical documents and legislation, as well as  legal records and contemporary publications (including ObGynNews with its little gems about how the OB were going to keep the newly licensed midwives from being able to legally provide PHB services). These documents and records were amassed are expressly for the purpose of establishing:

(a) the legacy practice of midwifery existed and was legally an independent practice that was NOT physician-supervised, but instead enjoyed a collegial relationship with MD, consulting, collaborating and transferring care as appropriate.

(b) The well-documented and systemic prejudice against women as providers of maternity (i.e. non-obstetric) care

(c) The well-fianced and systemic machinations and manipulations of the obstetrical profession to discriminate against, public insult and humiliate, criminalize, and eventually extinguish the independent practice of midwifery and all lawful option for OOH childbirth services.

For just about every conceivable topic, I  have either already posted an informative document somewhere on my websites. I am happy to direct you if it isn’t easy to find (Google searches are pretty efficient for locating these docs).  If not already on the Web,  usually have something helpful in my archive and can provided a scanned copy as an email attachment.

So I am very please to have this not-quite-historial (but it is 20 years old!) document, which is rich with exactly the advise we need in our Hour Of Peril. For the first time, a California legislator is carrying a bill by an opposing group that seeks to amend our LMPA. A midwife in North Carolina was just arrested for the equivalent of manslaughter (using laws that prohibit late-term abortion), and two CNMs who are very ‘mainstream’ (good access to friendly OB back-up) are being prosecuted by the BRN for practicing without physician supervision.

The is our “Arab Spring” or it will be a decade-long ‘smack-down’ that makes seals the fact of childbearing women to 10 or 20 more years in which normal childbirth is conducted and billed as a surgical procedure performed ONLY in hospitals by obstetricians or “physician-entender” CNM, as a “medically-delegated”  procedure to be managed under the protocols of the obstetrical department. Of course, a Cesarean rate over 50% will bankrupt the country but what the heck, its only money!

When thinking about the ‘relationship between midwives and physician’s as defineMPA’s mandated supervision requirement in the 1993 LMPA’s, I’d like to ask legislators and other policy-makers one important question:

“Does classifying the legacy (traditional, non-nurse) practice of midwifery as a medically-supervised discipline carry out the plainly stated Legislative Intent of the LMPA (SB 350) and Senator Figueroa’s amendment (SB 1479), or does it get in the way?

After reading the Legislature’s Intent for the LMPA and its firs amendment passed in the year 2000, I think you’ll agree with me that it does not help and it does create considerable harm.

faith gibson, LM ^O^

The Licensed Midwifery Practice Act of 1993

SECTION 1. The Legislature finds and declares all of the following:

(a) Over 40,000 babies die every year in the United States, many of them as a result of being born severely underweight. That rate, among the worst in the developed world, has been condemned by health experts as a preventable tragedy and a national disgrace.

(b) Research has shown for every dollar society might spend to reduce the number of underweight births, three dollars ($3) in medical-care costs could be saved.

(c) The increasing state budget deficit limits the amounts of state funds available to subsidize public health care.

(d) It is in agreement with the principle stated by the World Health Organization that each woman has a fundamental right to receive proper prenatal care, that the woman has a central role in all aspects of this care, including participation in the planning, carrying out, and evaluation of the care, and that social, emotional, and psychological factors are decisive in the understanding and implementation of proper prenatal care

(e) Prenatal care reduces the incidence of low birth weights.

(f) The number of available physicians and surgeons to serve low-income pregnant women has sharply decreased.

(g) Five nations with the lowest prenatal mortality rates have 70 percent of all births attended by midwives.

(h) In a 1982 report by the Department of Consumer Affairs, recommendations were made to actively promote nurse and non-nurse midwifery services as one means of providing cost-effective, comprehensive perinatal services which have been shown to be effective in lowering perinatal morbidity and mortality rates.

(i) The Office of Statewide Health Planning and Development (OSHPD) recommended in its 1986 study of Alternative Birthing Methods that a separate category of licensed midwives should be established in the Department of Consumer Affairs.

(j) The OSHPD further recommended that competencies for this new category should be comparable to those of nurse-midwives and physician assistant-midwives, although licensure as a registered nurse or physician assistant should not be required to become a licensed midwife.

(k) The Legislature supports a multifaceted, cost-effective approach which includes licensed midwives providing prenatal, delivery and necessary followup care to families.

SB 1479 ~ THE LEGISLATURE FINDS AND DECLARES THAT:

(a) Childbirth is a normal process of the human body and not a disease.

(b) Every woman has a right to choose her birth setting from the full range of safe options available in her community.

(c) The midwifery model of care emphasizes a commitment to informed choice, continuity of individualized care, and sensitivity to the emotional and spiritual aspects of childbearing, and includes monitoring the physical, psychological, and social well-being of the mother throughout the childbearing cycle; providing the mother with individualized education, counseling, prenatal care, continuous hands-on assistance during labor and delivery, and postpartum support; minimizing technological interventions; and identifying and referring women who require obstetrical attention.

(d) Numerous studies have associated professional midwifery care with safety, good outcomes, and cost-effectiveness in the United States and in other countries. California studies suggest that low-risk women who choose a natural childbirth approach in an out-of-hospital setting will experience as low a perinatal mortality as low-risk women who choose a hospital birth under management of an obstetrician, including unfavorable results for transfer from the home to the hospital. 

(e) The midwifery model of care is an important option within comprehensive health care for women and their families and should be a choice made available to all women who are appropriate for and interested in home birth.

AMENDED IN ASSEMBLY MARCH 21, 2013

California Legislature—2013–14 Regular Session

ASSEMBLY BILLNo. 1308

Introduced by Assembly Member Bonilla

February 22, 2013

An act begin insert to amend Sections 2507 and 2508 of the Business and Professions Code,end insert relating to professions and vocations.

LEGISLATIVE COUNSEL’S DIGEST

AB 1308, as amended, Bonilla. Midwifery.

Existing law, the Licensed Midwifery Practice Act of 1993, provides for the licensing and regulation of midwives by the Board of Licensing of the Medical Board of California. The license to practice midwifery authorizes the holder, under the supervision of a licensed physician and surgeon, as specified, to attend cases of normal childbirth and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn.

begin insert Under the act, a licensed midwife is required to make certain oral and written disclosures to prospective clients.end insert  A violation of the act is a crime.

begin insert

This bill would additionally authorize a licensed midwife to directly obtain supplies, order testing, and receive reports that are necessary to his or her practice of midwifery and consistent with his or her scope of practice and would require a licensed midwife to disclose to prospective clients the specific arrangements for referral of complications to a physician and surgeon.

end insert

begin delete — RED TEXT BELOW IS DELETED  

delete –>This bill would state the intent of the Legislature to enact legislation to remove barriers to care in order to provide a more efficient and safer delivery method for mother and infant by allowing licensed midwives to practice in a manner originally intended in prior legislation.

end delete   begin insert

Existing law requires the board, by July 1, 2003, to adopt regulations defining the appropriate standard of care and level of supervision required for the practice of midwifery.

end insert   begin insert

This bill would require the board, by July 1, 2015, to revise and adopt regulations defining the appropriate standard of care and level of supervision required for the practice of midwifery and identifying complications necessitating referral to a physician and surgeon.

end insert – begin insert

By expanding the disclosures a licensed midwife is required to make to prospective clients, this bill would expand the scope of a crime thereby imposing a state-mandated local program.  [editor FG.org ??????]

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

 Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end d

State-mandated local program: begin deleteno end delete

The people of the State of California do enact as follows: