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Thursday, October 10, 2013
San Francisco, CA -- During the 2013 California legislative session, attorneys in our San Francisco Office represented the California Association of Midwives (CAM) in an effort to remove ambiguities in the laws governing the scope of practice for licensed (direct-entry) midwives and lay the foundation for expanding care to underserved communities and individuals.
Prior to the changes made as a result of the firm’s lobbying efforts, state law imposed, or effectively erected, structural and financial barriers that significantly and unnecessarily restricted access to professional midwifery care in California. In particular, Business & Professions Code section 2507 required that licensed midwives practice “under the supervision of a licensed physician and surgeon.” Due to insurance limitations and other liability concerns, the required supervision was rarely available.
With the qualified support of the California Medical Board, licensed midwives successfully cared for women and babies during pregnancy, birth, and postpartum, and attended births in freestanding birth centers and in homes by relying on a variety of legal theories for working around the infeasible and outdated supervision requirement. The mere existence of the requirement, however, constrained the delivery of licensed midwife services in other contexts and thereby imposed unnecessary restraints. Numerous legislative efforts over the course of two decades had, unsuccessfully, attempted to eliminate this unworkable provision.
With the support of the bill’s author, Assemblywoman Susan Bonilla, CAM’s relentless activism, and sound legal advocacy and lobbying services provided pro bono by Paul Hastings, physician supervision was finally removed from the laws governing licensed midwives when Governor Jerry Brown signed AB 1308 into law on October 9, 2013. Although more work must be done to adapt programs, such as the state’s Medi-Cal reimbursement plan, to the changes effectuated by the bill, the most significant obstacle to making safe and economic maternity care by midwives more widely available has been removed.
The Paul Hastings team was led by partner Robert Hoffman, with assistance from senior associate Jill Yung.
September 23rd 2013
Below is a statement from CAM’s legal council at Paul Hastings Law Firm regarding misconceptions about AB 1308:
As explained by the California Medical Board (“Board”) in its 2012 Sunset Review Report, the laws governing licensure of midwives in California historically contained an unworkable requirement that licensed midwives practice under the supervision of a licensed physician and surgeon. Although mandated by law, supervision was “essentially unavailable to licensed midwives performing home births, as California physicians [were and] are generally prohibited by their malpractice insurance companies from providing [such] supervision.” The Board, through its Midwifery Advisory Council, tried repeatedly over the years to establish a more functional relationship between midwives and physicians, but was unable to resolve disagreements between licensed midwives, who “express[ed] concern with any limits being placed on their ability to practice independently,” and physicians and liability insurers, who expressed safety concerns based on a “perceived reluctance of midwives to refer patients when the situation warrants referral or transfer of care.” (See http://www.mbc.ca.gov/publications/sunset_report_2012.pdf.) Prior legislative efforts similarly failed to resolve this apparent impasse.
Backed by numerous studies demonstrating the general safety and costs savings associated with home births, the midwives successfully resolved the long-standing resistance to change in 2013. Specifically, the California Association of Midwives successfully lobbied for the passage of Assembly Bill 1308, which removes the physician supervision requirement from the law.
The bill also clarifies and highlights certain safety measures that were part of the “Standards of Care for California Licensed Midwives” (Sept. 15, 2005) (“SCCLM”) and incorporated into law by the Board’s regulations (see Cal. Code of Regs. tit. 16, 1379.19; http://www.mbc.ca.gov/allied/midwives_standards.pdf). The incorporation of these standards into statute has given some observers the impression that the law will significantly restrict the practice of licensed midwifery in California. This is not, however, the intent or effect of the Bill.
AB 1308 incorporates into statute for the first time a definition of “normal pregnancy and childbirth.” Specifically, a licensed midwife is only allowed to operate independently when “there is a singleton fetus,” “ there is a cephalic presentation,” “the gestational age of the fetus is greater than 37 0⁄7 weeks and less than 42 0⁄7 completed weeks of pregnancy,” and “labor is spontaneous or induced in an outpatient setting.” (Compare SCCLM at pp. 9-10 (requiring physician consultation when, among other things, labor is premature, membranes rupture prematurely, the fetal “lie is other than vertex at term,” or there is a “multiple gestation”).) In addition, where there is “any preexisting maternal disease or condition likely to affect the pregnancy” or “significant disease arising from the pregnancy,” a licensed midwife must ensure that her client consults with a physician and secures approval for an out-of-hospital birth.” The law tasks the Board with responsibility for identifying diseases and conditions that trigger the consultation requirement in subsequent regulations.
Given that the SCCLM incorporated into the Board’s prior regulations already identified several medical conditions that are not compatible with out-of-hospital birth, and recognizing that the Board has never suggested that more stringent standards are necessary, it is not expected that the Board will use its regulatory license to restrict the practice of licensed midwives. Indeed, such actions would violate the spirit of AB 1308, which was intended to remove barriers to care by midwives and make care more widely available. (See http://www.mbc.ca.gov/publications/sunset_report_responses.pdf.)
Some detractors of AB 1308 have suggested that the Board will craft the definition of “preexisting maternal disease or condition likely to affect the pregnancy” or “significant disease arising from the pregnancy” to apply to clients attempting vaginal births after cesarean sections (“VBACs”) and impose new physician consultation obligations. For the reasons already stated above, imposing new limitations on the scope of practice of licensed midwifes would not be consistent with the intent of AB 1308. Moreover, notwithstanding the fact that the Standards of Care identify “significant pelvic or uterine abnormalities . . . [including] invasive uterine surgery that may impact on the pregnancy” and “adverse obstetrical history” as abnormal conditions, the Board’s existing regulations expressly recognize that licensed midwives can assist clients with a VBAC. (See Cal. Code of Regs. tit. 16, 1379.19(b) (specifying the required client disclosures and investigatory obligations of a midwife who is considering accepting a VBAC client).) The Board has not previously prohibited VBACs – in fact, the regulations expressly condone them – and nothing in AB 1308 or the underlying Report that supported its adoption suggests that the Board should change its position now.
AB 1308, authored by Assemblywoman Susan Bonilla, was heard by the Senate Business & Professions Committee in Sacramento last Monday, July 1st. We had over 250 midwifery supporters come to the Capitol to attend this hearing. The committee room was standing room only with a large crowd spilling into the hallway outside.
Before the hearing, this bill contained a provision that, if passed, would restate the unattainable physician supervision requirement for licensed midwives, and require revised regulations about supervision. During the hearing, this problematic provision was removed from the bill and AB 1308 was voted unanimously (10 ayes - 0 noes) out of the committee!
Although language to remove the existing physician supervision requirement from the Licensed Midwifery Practice Act was not yet added to the bill, I spoke to the senators about the impossibility of meeting this requirement. Adeola Adeseun, president of California Families for Access to Midwives (CFAM) spoke about the barrier to midwifery care that physician supervision imposes for women on Medi-Cal. After a thorough discussion of the problem, Senator Ed Hernandez asked why Assemblywoman Bonilla didn't just remove physician supervision immediately. The midwifery supporters both inside and outside the room roared with approval at his suggestion. The majority of the senators in the room agreed that this problem must be fixed. Assemblywoman Susan Bonilla then committed to the committee that she would amend AB1308 to remove physician supervision from existing law.
This huge victory in our 20 year long fight for independence was then celebrated at the CFAM rally where Susan Bonilla again promised to amend the bill to remove physician supervision from current law. After the rally the large group of attendees visited with their senators to ask them to vote yes on AB 1308.
The bill will be heard next in Senate Appropriations and then on the Senate floor. If it passes through both, it will go to the governor to be signed into law.
CAM is working closely with Assemblywoman Susan Bonilla to make amendments to the bill that we can support while also addressing ACOG's concern for limiting liability for physicians who consult with or receive transfers from licensed midwives. We have excellent legal council working with us and will have draft language ready before the bill goes to Senate Appropriations.
What we need from you is to continue meeting with your senators and asking every midwifery supporter you know to call, write or visit their senator. The only way this bill will pass is if all 40 California state senators know how important it is to California families.