California College of Midwives
3889 Middlefield Road Palo Alto, CA 94303
650 / 328-8491 ~ goodnews@best.com

 Winter Quarter Update 2001

January 18, 2001

 Dear Licensed Community Midwives,

I apologize for taking so long to get this letter out  - the update on SB 1479 should have been sent by late September but a brain cloud came over me, followed by Thanksgiving, Christmas and the January Blahs. Mea culpa, me sorry. Can’t say it won’t ever happen again but I will plan on sending seasonal updates, so if a breaking story does not get reported while still hot, you will at least have a follow-up at the end of the quarter. If there is wide-spread concern about a particular topic I encourage one of the midwives from your peer group or geographical region to call me and I will give them an update personally. This intermediary can then spread the word to the rest of you. There are only 124 midwives licensed in California, so we should be able to keep in touch through a multitude of personal and professional routes, email, phone, CAM meeting, web cite, etc.

 Workable Remedy for Birth Registration Problem

 I called the newly appointed “policy analyst” at the Office of Vital Records on January 3^rd in an effort to find out how midwives can be in compliance with the requirement to register births and do so without having to appear in person at a distant county office with the whole family in tow each time they registered a home birth.  There is (as usual!) both good news and bad news.

The good news is that the Chief of Staff of the OVR and senior assistant both retired. For those of you who were personally involved in this 6 year controversy and the many negative interactions with the OVR, it was policy decisions by them which consistently made it seem that the agency’s priority goal was non-cooperation with midwives and families whose babies are born at home. Thankfully, the agency has assigned a new employee to develop policies for registering home births by domiciliary practitioners. Mr. Fields is a legislative analyst who graciously made himself available to me by phone and is interested in hearing from midwives as to how the policies from his agency are working (or not). He is genuinely trying to be helpful and to assist us in modifying the process if it doesn’t work and developing a better way. Anyone (midwives or parents) may write with suggestions, requests or complaints about this topic to: Don Fields, Chief of Policy, Compliance and Standards Section, Office of Vital Records  304 S Street, Sacramento, CA 94244-0241 – Please cc a copy to me and/or call me on the phone so I can keep up with the issues.

 A new policy letter from OVR was sent to all county registrars on December 8^th and describes a dramatically changed policy which does NOT require the personal presence of the midwife (although it permits her to sign if she wants to appear in person). If you do not want to travel to the office of the county registrar, this new policy permits the parents to register the birth when convenient by using an OVR worksheet/ affidavit filled out by the midwife with all crucial medical data, name of baby, etc. The final version of the registration form will be typed up by the Registrar with the midwife’s name, address and license number entered on the designated line for “birth attendant” and the computer code for “LM attended birth”. If the midwife is not present, the father will sign as a “certifier”. The OVR will tabulate all these births as midwife-attended, even thought the father signed it.

 After talking to midwives from both Northern and Southern parts of the state it seems that there is still a lot of energy for finding an even better way, most especially one which does not force the family to personally go to the county office and would permit the midwife’s signature to appear on the final document. I am currently working on the signature aspect. In many areas of the State (Bay area +) the mother’s and the home birth practitioner’s signature are Xeroxed from the registration affidavit on to the final certificate. It should be possible to make a minor change in the registration form that will permit the practitioner’s signature to be Xeroxed into the certificate. In counties where the parents and midwives sign the actual final certificate a different remedy will be required. 

 As for changing the OVR process to eliminate the requirement that parents appear in person – that will be a harder, longer fight and will require meeting with the policy analyst and many letters from both midwives and parents, convincing them that we this is important to us and do-able. If necessary, we will have to seek out public hearing like the one scheduled by the MBC in May. It is technically unconstitutional for the OVR to set policies which refers to a specific statue and carries out specific legislative directions without public input and review by the Office of Administrative Law. If we really have the interest to pursue it the law is on our side.

______________#1 Implementation of SB 1479____________

SB 1479 was signed into law by Gov. Davis on September 5th, 2000. It amends the Licensed Midwifery Practice Act of 1993 in way that are ultimately favorable to community-based midwives and women who choose home-based birth care. While the words “physician supervision” remain in the LMPA (sec. 2507), the part of the law (section 2508) that defines and describes its implementation has been replaced with a requirement that we can comply with. Other provisions of AB1479 also concern us, in particular the informed consent for medical interface and the “intent” language of the new law. While the intent language may not seem sexy or exciting to you, the legal implications and benefit of it to childbearing women are enormously important to us.

Intent Language and legal Theory

The "intent" language, found in section 4 of the new amendment, is so important to childbearing women that I have included a photo-copy original of its text so you can Xerox it as a hand-out for clients and for anyone else interested in midwifery information. The impact is enormous as it represents a reversal of that part of the Bowland Decision which noted that the California legislature (ie the law) had never recognized the right of childbearing women to have control over "the manner and circumstances" of childbirth. In the 1974 criminal case against former lay midwife Kate Bowland (Kate is now a CNM with a home birth practice in Santa Cruz) the court used this notion, in conjunction with a legal theory taken from the US Supreme Court's 1973 abortion decision (Roe v. Wade), to declare traditional midwifery illegal. The 1976 Bowland decision, with its fallacious California interpretation of Roe v Wade, developed a life of its own as other states (Indiana, Illinois and New York) used it to criminalize direct-entry midwives in their state and therefore prevent mothers from having the lawful choice of a professionally-attended labor and home birth. 

The way the Court arrived at this opinion (since California law itself never defines lay midwifery to be illegal) was to rule that the care of an unlicensed midwife was in opposition to the state's “obligation” (ie., compelling interest) to protect the viable fetus as determined by Roe v. Wade. The 1973 Supreme Court abortion decision used the viability of the fetus as a watershed between the rights of the mother and the rights of the baby. It declared, in essence, that a mother no longer had the right to abort a pregnancy after the unborn baby reaches 24 weeks gestation and is capable of living after birth. This is a common sense conclusion that midwives understand and agree with. Unfortunately this concept was inappropriately applied to normal birth as well as abortion, thereby ruling that the mother’s privacy rights do not extend to the “manner and circumstances” of normal childbirth. This dubious theory associates normal childbirth with the death of a viable fetus and was cited as the legal theory that authorizes California to declare that childbearing women do not have the right to choose a lay midwife, and indirectly, an attended home birth.

This anit-midwifery has been promoted by organized medicine for the last 100 years -- i.e., the notion that independent  midwives kill babies. Based on this erroneous idea, the Court concluded that it did not have any obligation to make a qualitative distinction between abortion and midwifery. Using this false assumption (that both midwifery and abortion result in the death of otherwise healthy babies) the Court used abortion law theory to criminalize midwifery and usurp the privacy rights of childbearing women. The original equation (Roe v. Wade) weighed the permanent death of a viable but unborn baby against the temporary inconvenience to its pregnant mother to carry the pregnancy to term and give birth. However, the circumstance of normal childbirth at term is startlingly different from that of a woman seeking to abort a viable fetus for non-medical reasons. Mothers cared for by midwives have chosen not to abort but rather freely carry their babies to term, seek out a community midwife to assess the health and normalcy of their pregnancy and to assist during birth. We know from sound scientific sources that presence of a skilled attendant vastly increases of the safety to women and their babies and dramatically reduces the possibility of death or disability of either. So the really really good news is that our newly amended midwifery licensing law acknowledges now, for the first time in the US, that pregnancy and birth are a normal process and not a disease and that childbearing women have the right to choose community-based midwifery care. This establishes a legislative recognition that a woman is in control over her pregnancy and has the right (absent of immediate life-threatening medical complications) to choose the manner and circumstances of her birth.  Thank you Senator Liz Figueroa and Frank Cuny, California Citizens for Health! 

  Overview of Other Legislative Changes

The major changes in the midwifery law resulting from passage of SB 1479 are (1) a requirement that licensed midwives have and record in the chart specific arrangements which have been agreed to by the mother for consultation and referral of care during the prenatal period, hospital transfer during the intrapartum and postpartum periods, and access to appropriate emergency medical services for mother and baby if necessary.  (2) SB 1479 requires that LMs reveal the lawful scope of licensed midwifery practice as defined in Section 2507. (3) If the LM does not carry malpractice insurance she must communicate that fact. (4) A LM must provide the phone number/web site URL for contacting the Medical Board of California should the client have a complaint regarding her care. (5) The midwife is required to register the births she attends.

Mandatory Informed Consent and MBC reporting Information

Section 1 of SB 1479 repeals the original wording of section 2508 which until now, required a licensed midwife to inform the client that a specific physician was being regularly briefed and would be available to provide care in the hospital should a complication arise. Needless to say, almost no community-based midwife could comply with this statute. It became the fatal flaw that made us vulnerable to prosecution by the Medical Board for “failure to regularly brief a supervising physician”. This was one of the charges against Alison Osborn by the MBC. Gratefully, this provision was repealed by SB 1479 and replaced by a requirement that each licensed midwife have specifically identified arrangements for the referral and transfer of care during the prenatal period, for hospital transfer during the intrapartum and postpartum periods, and access to appropriate emergency medical services for mother and baby if necessary. This does not refer to a relationship with specific "supervising" physician but rather acknowledges a wide range of possible methods to meet any sub-acute or acute medical needs relative to childbearing while under the primary care of a community midwife. Examples of possible "arrangement" for these categories are: 

"Contact Kaiser (or other clinic or a specific midwife-friendly physician); 
Elective intrapartum/immediate PP transfer to ___________ Hospital under the care of ________physician (on-call obstetrician, teaching staff, etc); 
Emergency services accessed by contacting EMTs or paramedics through 911"

Information on medical interface needs to be verbally discussed and “disclosed” to the client and memorialized in writing through a form signed by the midwife and client and maintained in the client's chart.  This legally formalizes the informal backup or “working arrangements” that midwives already have and use to make sure that each mother has appropriate access to medical services.  It is a win for midwives and for consumers.

An original, photo-copy ready form that complies with SB 1479 is included. This CCM version was designed to exactly conform to the law and each of the five points. However, SB 1479 also authorizes the Medical Board to develop an official form of its own and require it to be used by all licensed midwives. At present the MBC is working on their  “official version”. You may use the CCM version or make up your own form for use until after the public hearing in May are concluded, the rule-making file is reviewed by the Office of Administrative Law, and if approved by OAL, a MBC official version mailed to each midwife for her use (a year +/-).

Public Hearing In May by the Medical Board
at State Capital Building

The purpose of this hearing is to develop the official form, authorized by SB 1479, to record the medical interface arrangements for a midwife’s and also communicate information about the midwifery scope of practice and how a client would make a complaint. 

The regulatory process itself entails one or more public hearing(s), testimony by midwives, homebirth families, ACOG, CMA, Citizens for Health (Frank Cuny) and any other interested parties. It requires that all written testimony be entered in to a “RuleMaking File” by the agency, to be forwarded to the Office of Administrative Law for its scrutiny before approving any regulation. The law requires that the ultimate version of the regulation must be the least burdensome method that satisfies the intent of the law, so our written and oral testimony is very important. One of the best strategies for making a positive impact on the process is to provide the Board with a completed sample form (or an improved version) that is already in use and petition Medical Board to adopt this wording. Passage of a regulation takes from 6 to 24 months (or longer) so there is plenty of time to work out the bugs. Think of the enclosed version as a "work in progress" -- suggestions for improved clarity, brevity and grammar are welcomed (thank you Tosi, liked your simplification).

The hearing will be held as a part of the quarterly Medical Board meeting scheduled to be held May 12^th in the State Capitol Building (this may change due to the violent explosion that happened tonight as I was writing this).  Check the web site (www.goodnewsnet.org) for details.

Policy Change at MBC -- Expert review of complaints
against LMs by LMs mandated by MBC disciplinary process

Last month I wrote a letter to the director of the Medical Board (Mr. Ron Joseph) asking for his help to correct an increasingly serious problem. So far every major case against a licensed midwife by the Medical Board has failed to include any review of the case by a licensed midwife. The legal process, under administrative law, requires that ‘quality of care’ issues (whether or not the midwife proved the “standard of care”) are to be measured against the standards of the community of practitioners as determined by a representative of that community (physician, midwife, physician’s assistant, etc). It runs counter to the Medical Board’s own policy to do otherwise. According to that policy, complaints against licentiates are to be evaluated by a practitioner of the same status. For example, a complaint against a family practice physician regarding a broken arm would never be given to an orthopedic surgeon for review. However, complaints against community midwives are being officially reviewed and disciplinary actions taken based on review provided by hospital-based obstetricians. Many of the complaints against midwives are actually from obstetricians. This is a miscarriage of justice, expensive to both the Medical Board and to the midwife. It was imperative that it be changed.  Well, God answered our prayers.

 I quote from the MBC director “…I concur with the points you raise in your letter. Effective immediately, the Enforcement Program will endeavor to include representation from the licensed midwife community in its pool of expert reviewers who provide consultation to our investigative staff. Furthermore, these expert reviewers will be requested to provide case review in those instances where a question arises concerning whether a midwife has met the community standard of practice in the provision of services”. 

 The practical implications for midwives are two-fold. First, it means that we will be judged by our peers instead of by doctors and second, it means that some agreement as to what “standard” midwifery is will be necessary. Logically speaking, it should be an evidenced-based practice parameter supported by our own midwifery organizations and world-wide documentation (MANA, W.H.O., Holland, British Columbia, other protocols contained in other state practice acts, etc.) The disposition of each mfry case will build up a history or “precedent” so even if we do nothing to create a “standard”, one will develop over the course of time. Personally, I think it is better to be “pro-active” in the molding of this process. For the last 3 three years I have been sending questionares to all ACDM members asking for extensive information on their protocols, what equipment they carry, and how they manage such things as PROM, mec, length of 2^nd stage, etc. This can now be utilized as a reliable source to determine whether or not controversial actions or omissions fall within the standard midwifery model of care. I have enclosed a copy in this questionnaire in the newsletter and would appreciate anyone who has not already done so to fill it out and return it to me. 

 The other aspect that is vitally important to each midwife’s legal well-being is documenting informed consent/ informed decline whenever a client’s declines advise to be medicalized. For example, PROM in a mother with unknown GBS status, prolonged second labor with no s/s fetal or maternal distress, presence of moderate + meconium in rapidly moving second stage labor, refusal by Rh neg mom to have Rhogam, refusal by parents of Vit K for the baby, etc. It is important for the midwife to first advise parents what the “standard” care is for their particular situation (I usually describe both the medical and the midwifery standard), discuss the risks and benefit as you know them and record the conversation in the progress notes on their chart. If appropriate, have the client or both parents sign (or at least initial) the entry. In some instances, consider tape-recording the conversation.

 This formalized process is helpful to the parents as it draws their attention to the potentially serious nature of declining customary care as even a minor refusal can have serious consequences. For instance, a mother who declines Rhogam can have a baby in a future pregnancy who is severely damaged by erythroblastosis fetalis. A baby that does not get Vit K at birth can have a brain bleed and suffer permanent neurological damage several weeks later. As awful as these tragedies are, we need to protect the midwife from being brought up on charges resulting from decisions made by the parents. In many instances, it is not what the midwife did but what she did not do that is at the heart of the Medical Board investigation. Our “crime”, according to many, is that we are not obstetricians and that we don’t practice medicine. The midwifery law does not require you to force parents to be medicalized against their wishes (unless there is clear and present danger – a present-tense complication such as excessive bleeding or respiratory distress in a neonate, is far different than a “risk” factor, which is a higher likelihood or potential for a complication to develop but is, of itself, only a theoretical risk not an actual complication). However, administrative law does require that parents be dutifully informed of the potential consequences of their decision. Failure to document that informed decline on the chart is just as detrimental to you as failing to get informed consent.

 A last word of caution – expert reviewers never interview the practitioner or the client – they ONLY read the chart and any other documents provided by the Medical board investigators.  Keep that in mind when charting, as what you chart contains (or lacks) are crucial to being able to defend yourself against charges of negligence or incompetence. Nuf said.

  ~ California Citizens for Health Freedom (CCfHF) – need ongoing financial support

 California Citizens for Health Freedom is the grass-roots organization that sponsored SB 1479. That means we owe the success of SB1479 (and incredible, legally important “Intent” language!) to Frank Cuny, the director of CCfHF.  He richly deserves a huge round of applause for his tireless work on behalf of midwives and the families who choose community-based midwifery.

 CCHF is currently sponsoring bill to create Holistic Health Practitioner regulatory board that would include the licensing and regulation of licensed midwives. We hope that Senator John Vasconsellos will carry this bill. In the mean time, CCfHF needs our financial help. Please consider either a substantial one-time contribution (it is tax-deductible) to CCfHF or a small monthly pledge (suggest $25 dollars) which can be put on a charge card so you will be billed automatically. Frank’s phone number is 888 / 557-8092. Mailing address is 8048 Mamie Ave, Oraville, 95966

 Warm Regards, Faith Gibson, LM, CPM

Executive Director, ACDM/CCM

Enclosures:   Intent Language, ACDM questionnaire, CCM sample Form for Medical Interface

 From “Liberating the Human Spirit in the Work Place”, Bickham, 1996