Legislative Updates

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  • 12/22/2013 1:00 PM | Constance Rock, LM, CPM (Administrator)
    PAUL HASTINGS REPRESENTS THE CALIFORNIA ASSOCIATION OF MIDWIVES IN A SUCCESSFUL EFFORT TO SECURE LEGISLATIVE REFORM

    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freestanding birth centers and in homes by relying on a variety of legal theories for working around the infeasible and outdated supervision requirement.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.

    http://www.paulhastings.com/news/

  • 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.

  • 09/12/2013 8:49 PM | Sarah Davis (Administrator)
    Assembly Bill 1308: Midwifery by Susan Bonilla raced through it's final steps in the state legislature.  Over the last three days the, the bill passed in the senate business and professions committee, on the senate floor, in the assembly business and professions committee and finally on the assembly floor for concurrence, all with unanimous votes!

    The bill will next go to the governor for his signature. The bill text can be found here.

    Although it is certainly not a perfect bill, we look forward to the next steps for implementing this legislation, creating regulations and pursuing future legislation. Over the next few days we will post updates detailing future work. This is the time to get involved and to stay engaged!

    Thank you, thank you, thank you to everyone who has worked on this bill.
  • 09/07/2013 12:01 PM | Sarah Davis (Administrator)
    The final amendments to Assembly Bill 1308: Midwifery by Susan Bonilla have been published.  This includes the unprecedented removal of the physician supervision requirement for LMs! The bill will be voted on in the senate next week, and it may also be heard in one or several senate and assembly committees.  Finally it will be heard in the full assembly for a concurrence vote.  This is the last week of the legislative session so the bill must pass all of these hurdles this week if it is going to go to the governor's desk this year. Please contact your state senators and assemblymembers, with the simple message that you SUPPORT AB 1308. Even if you have previously contacted your legislators, please contact them again, since there have been substantial changes made to the bill.  When leaving a message, be sure to leave your name and address. You can even leave your message over the weekend!

    The bill text is available here: http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_1301-1350/ab_1308_bill_20130906_amended_sen_v95.pdf

    In plain language, the bill now includes:

    • Removal of the physician supervision requirement, which will allow LMs to become Medi-Cal providers.
    • A definition of normal birth and the requirement that LMs attend only those births which fall within the normal birth definition. The normal birth definition includes women who do not have any preexisting disease or condition impacting pregnancy, or any disease arising from pregnancy, and women who do have preexisting disease or condition or a disease arising from pregnancy who have an examination by an obstetrician who determines that the disease or condition is not likely to significantly affect the pregnancy and birth . The normal birth definition includes only births of singleton, vertex babies between 37-42 weeks. 
    • Allow for concurrent care for pregnant women who don’t meet the criteria for normal pregnancy and birth.
    • Authorizes LMs to directly obtain drugs, devices and testing related to midwifery practice.
    • Adds requirements to the written disclosure the LM makes to clients.
    • Require LMs to provide records and give report to the physician receiving a transfer of care.
    • Require hospitals to report each transfer using a standardized form for the purposes of collecting data for quality improvement on the part of hospitals receiving transfers from out-of-hospital births.
    • Allow the Medical Board to adjust the data elements for the annual reporting so that the licensed midwife annual report will give better, more useful data, similar to MANA stats data.
    • Requires than new licencees becoming LMs through the challenge process, after January 1, 2015, must have formal didactic education.
    • Add LMs as providers in licensed alternative birth centers.
  • 08/09/2013 8:20 AM | Sarah Davis (Administrator)
    At the Midwifery Advisory Council meeting on August 8th, CAM reported on amendments expected soon from Assemblymember Susan Bonilla to her bill regarding midwifery.

    Amendments that are expected include:

    • Removal of the physician supervision requirement, which will allow LMs to become Medi-Cal providers.
    • A definition of normal birth and the requirement that LMs attend only those births which fall within the normal birth definition. The normal birth definition includes women who do not have any preexisting disease or condition impacting pregnancy, or any disease arising from pregnancy, and women who do have preexisting disease or condition or a disease arising from pregnancy who have an examination by an obstetrician who determines that the client meets the criteria for normal birth. The normal birth definition includes only births of singleton, vertex babies between 37-42 weeks.
    • Allow for concurrent care for pregnant women who don’t meet the criteria for normal pregnancy and birth.
    • Limits physician liability for consultations with clients planning out of hospital birth and for transfers from out of hospital birth.
    • Authorizes LMs to directly obtain drugs, devices and testing related to midwifery practice.
    • Adds requirements to the LM disclosure.
    • Require LMs to provide records and give report to the physician receiving a transfer of care.
    • Require hospitals to report each transfer using a standardized form for the purposes of collecting data for quality improvement on the part of hospitals receiving transfers from out-of-hospital births.
    • Allow the Medical Board to adjust the data elements for the annual reporting so that the licensed midwife annual report will give better, more useful data, similar to MANA stats data.
    • Add LMs as providers in licensed alternative birth centers.

    AB 1308 is expected to move to the full senate in the next few weeks.
  • 07/07/2013 6:48 PM | Constance Rock, LM, CPM (Administrator)
  • 07/05/2013 1:50 PM | Constance Rock, LM, CPM (Administrator)

    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. 

  • 06/26/2013 7:32 AM | Sarah Davis (Administrator)
    Updates from CAM's week at the capitol:

    • CAM has Assemblywoman Susan Bonilla’s confirmation that favorable amendments are to be made to AB1308 in the Senate Business and Professions committee hearing on Monday, July 1.

    • Assemblywoman Bonilla, author of AB 1308, has graciously accepted an invitation to speak at the California Families for Access to Midwives’ rally to be held at the State Capital on Monday july 1st

    • CAM is assured that current language referring to physician supervision and rewriting our standards of care will be removed from the amendments to AB 1308.

    • AB 1308 will not move forward with anything in it that will hurt midwives.

    • No matter how this bill may change there is one message that is unchanging throughout that can be used in any phone call or letter written – removal of physician supervision.

    • This legislation isn’t finished being written. Progress happens bit-by-bit and amendments are made in committee in an ongoing basis. While there are no short-cuts, your support is vital to our success.

    • CAM president, Constance Rock, and vice president, Sara Davis, are in Sacramento now working feverishly with state legislators, lobbyists, midwives and fhttp://www.californiamidwives.org/Admin/default.aspxamilies to move this legislation along. It is intense and exhausting work, but it is paying off.

    •The impact of constituent’s phone calls on the legislative offices can’t be overstated. Encourage your clients to call their state senator and assembly member to ask for removal of physician supervision for licensed midwives.
  • 06/14/2013 10:24 AM | Sarah Davis (Administrator)
    The Assembly bill regarding licensed midwifery, AB 1308 by Susan Bonilla, was amended yesterday. These amendments are one step toward the achievement of our legislative goals this year, but not the final step. While CAM officers have worked hard for these amendments, which will decrease barriers to safe care, and increase access to licensed midwives for California families, CAM is continuing to push for the most important amendment to the bill: removing the physician supervision requirement and all reference to creating standards of care defining physician supervision.

    The June 13th amendments:
    • Add the term "drugs", therefore authorizing licensed midwives to directly "obtain and administer drugs and diagnostic tests" that are necessary to midwifery practice.
    • Clarify that a midwife does not need to identify a specific physician and surgeon in her/his licensed midwife disclosure to clients regarding referral for complications.
    • Add licensed midwives as providers to the licensing law for alternative birth centers.  Only CNMs and physicians can currently attend births at licensed alternative birth centers, which impacts access to midwives for many families.
    • Reflect the name change of the organization the American Association of Birth Centers, formerly known as the National Association of Childbearing Centers.
    See AB1308 here: http://leginfo.ca.gov/pub/13-14/bill/asm/ab_1301-1350/ab_1308_bill_20130613_amended_sen_v97.pdf
  • 06/03/2013 12:45 PM | Sarah Davis (Administrator)
    Updates regarding SB 304 and the Medical Board of California

    SB 304 – the Medical Board Sunset Review bill – as currently amended, will take investigation and enforcement away from the medical board and give it to Department of Justice instead.  SB 304 has passed through the Aenate and is now in the Assembly.

    The California Medical Board has called a special meeting on Tuesday, June 4th to discuss the continued employment of its Executive Director Linda Whitney and the selection of an Acting Executive Director. Linda Whitney has been an ally to Licensed Midwives and we do not know what will happen with a new Executive Director. CAM officers will be present at the meeting tomorrow and will post updates after the special meeting.

    Specifically related to licensed midwives, SB 304 authorizes CNMs to supervise students studying to become licensed midwives during their supervised clinical training, and states that bona fide midwifery students must be enrolled in a board approved clinical training program.

    Updates regarding AB 1308

    AB 1308, as currently amended, authorizes licensed midwives to obtain supplies and testing, but does not yet meet the needs stated by CAM and consumer advocates to protect families' access to midwifery care, and to protect the practice of midwifery. CAM continues to advocate for specific amendments to AB 1308.  AB 1308 has passed out of the Assembly and has been referred to the Senate Committee on Business, Professions and Economic Development. A hearing date has not yet been set.


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