Sunset Review of Midwifery Issues: Background Supervision ~ part 1

by faithgibson on February 14, 2013

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

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 

An excellent example of the entrenched politics of the problem can be seen in 1999 ruling from the Office of Administrative Law. This test case was brought by the MBC against licensed midwife Alison Osborn, based on her inability to secure what was commonly known to be unobtainable obstetrical supervision.

OAL Judge Roman ruled in favor of the midwife based on the legal theory that the legislative intent of the LMPA was that childbearing women in California have access to professionally trained and regulated midwives. Judge Roman cited barriers created by med-mal carriers and systematic hostility by obstetricians to licensed midwives as reason why the intent of the Legislature was not being carried out. He also opined that California LMs in general were “avidly seeking to be part and parcel of the healthcare team that serves the residents of California”.  So true!

Judge Roman’s decision stated:

“In reviewing a statutory scheme, this tribunal must be guided by an interpretation that would further the legislative purpose within constitutional limitations. Unlike physicians, physician assistants, physician assistant midwives, registered nurses, or certified nurse midwives who practice within the context of a medical model, licensed midwives practice within the context of a midwifery model [i.e., physiological management].

Were this tribunal to employ the medical model on licensed midwifery, as Complainant [MBC] urges, no home births could be competently assisted. Mindful that licensed midwives, with only one exception presented before this tribunal, possess no hospital privileges, the legislation would function to permit persons to possess a license that would not be functional anywhere within the State of California. This tribunal declines Complainant’s offer.” 

In an effort to practice their art, virtually all of California … licensed midwives have… developed a relationship that involves collegial referral and assistance, collaboration, and emergent assistance without direct or accountable physician and surgeon supervision of licensed midwives.

In an effort to promote the efficacy of the Act, this tribunal concludes, at this time, that a licensed midwife who possesses a relationship with a California physician and surgeon as referenced herein has feasibly and reasonably satisfied the ambit of the Act.

Accordingly, cause does not exist to revoke or suspend the license of Respondent pursuant to Business and Professions Code section 2519(e), in conjunction with sections 2507(a) and 2507(b), for unprofessional conduct arising from lack of supervision as set forth in Findings 13-14 and 17-23.

Under criteria stipulated in Judge Roman’s ruling and resulting in an amendment to the LMPA carried by Senator Figueroa (SB 1479-2000), state-licensed midwives legally satisfy the ‘ambit’ of the supervisory provision if they have made a ‘good faith’ effort to secure obstetrical supervision, and after establishing that such a relationship is not available to them, independently develop and maintain relationships that involve collegial referral, collaboration, and emergent assistance.

Per Figueroa SB 1479, each midwife must fully disclose the specific medical interface arrangement for each client relative to both routine evaluation & emergent medical needs during pregnancy, childbirth and the new mother-new baby period. These specified details must be documented and co-signed by mother-to-be and midwife as a permanent part of the patient’s chart.

This is the current legal basis for the practice of the 270 California LMs.  Don’t let anyone tell you the scary story that LMs are all breaking the law or practicing illegally, because neither is true.  Nonetheless, this discriminatory and unworkable law has many other negative consequence and absurdities. One particularly egregious example is an angry OB who called the police to report a LM for ‘attempted murder’ after an elective (non-emergent) transfer of a healthy laboring woman to his hospital’s L&D unit.

Doctors would never put up with this if our professional roles and gender predominance were reversed.

Following the Medicaid-MediCal Money Trail

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?

While the LMPA mandated that midwives to be supervised by the obstetrical profession, the law did not (and still does not) require that any California obstetrician provide such supervision, nor does this clause oblige med-mal carriers to cover the incidental liability exposure associated with such supervisory duties as a normal part of the doctor’s policy.

Simultaneously mandating the supervision of one profession by competing profession, while not requiring that a single member of the controlling profession provide the legally-essential service is, in my opinion, blatantly unconstitutional.

For the supervisory provision to merely pass the constitutional test (the lowest possible bar!) it would have to apply equally to obstetricians as well as midwives.  This would require obstetricians to uniformly and routinely provide the mandated supervision as a normal part of their license to practice medicine in California. This must also include a fee schedule that requires third-party payors (including Medicaid) to compensate obstetricians for these legally-essential additional services and med-mal carriers to include the incidental supervisory activities of obstetricians as part of their general liability coverage.

If the full responsibilities and actual expenses of supervision are unacceptable to physician groups, med-mal carriers or 3rd party payors, then the supervisory control over licensed midwives by the obstetrical profession must be immediately removed from the statutes.

I will be posting additional background information on a regular basis. This material, when combined with the information in part 1 of this series, will help anyone interested in the topic understand the historical politics and the direct and indirect consequences for midwives, mothers, and physicians who are (or would be!) willing to collaborate with our client families.

This will include directly addressing the huge and disproportion economic burden on taxpayers that this anti-competitive and unfair business practice (supervisory control by obstetricians over the professional of midwifery) exerts on the State’s Medicaid-MediCal program.

I plan to send hard copies of this material to Senator Hernandez’s office, as he is currently carrying several bills to remove supervision from the licensing laws of four non-physician primary healthcare licentiates.  As a courtesy, I will also forward copies to Governor Brown’s office and the on-line news journal “California Watch”. An investigative reporter  who writes for California Watch (Nathaneal Johnson) recently broke the story about the dramatic increase in the maternal mortality rate in California women since 2007. This is associated in part to the rising Cesarean rate in our state and associated complications of surgery. http://californiawatch.org/dailyreport/national-c-section-rate-highest-ever-study-says-11553

As anyone can see from even this brief account, the unconstitutional and involuntary imposition of supervision is of paramount importance to every practicing midwife, every midwifery client and her unborn/newborn baby and every obstetrician who agrees to provide services to pregnant women receiving care from a midwife.

This 4-decade old problem must be either fixed via a legislative remedy, or women in California will have to seek relief through the courts. I am quite convinced that gender discrimination, and the associated political power and status disparities between the professions of medicine and midwifery, contributes greatly to this long-term dysfunctional situation.

My hope and prayer is that the California Legislature will finally find cooperation from the mainstream healthcare system and the political will to effectively address this issue. In particular, the taxpayers of the State who fund maternity care for healthy MediCal eligible women need economic relief. Providing unfettered access to midwifery care for this demographic would be accompanied by a substantial reduction in costly medical and surgical interventions and long-term complication of operative deliveries. In addition to the cost-effective, low-tech physiological management, the one-on-one care of midwives has many other practical benefit to these young families.

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To be Continued –> Part II — Comments on the MBC’s problem statement in the on-line Sunset Review relative to the issue of midwives, and mfry assistants, whether such arrangement are “legal” under the LMPA and a mistaken impression that midwifery consists of ‘performing deliveries’ as a medical-surgical procedure which would (if true!) obviously restrict who can ‘assist’ LMs while we are ‘performing’ the surgical procedure of a ‘delivery’.

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