Statement from CAM’s legal counsel regarding misconceptions about AB 1308

09/23/2013 7:05 PM | Constance Rock, LM, CPM (Administrator)

                                                     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.

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