ACDM State Chapter ~ California College of Midwives
1. SB 1950
2. Filing Incident Reports
1. Organized response to SB 1950MBC proposals for Regulations on the "Appropriate Standard of Care ...... for the practice of Midwifery"
2. Info on Incidents Reports
1. Please read the files below and use the legal theories conveyed in them to help you craft a thoughtful response to the MBC's October 6th proposal recently mailed to every licensed midwife.
2. Please print out forms to report "incidents" of refusal or detrimental medical care of clients planning home-based midwifery care
Navigation ~ 1. Overview 2. Physician Supervision 3. Rules for the "Regulation Game" 4. MBC's October 6th Proposal 5. An Appropriate Proposal 6. Political Action 7. Links to Important Documents 8. Incidents Reports -- overview and form for LMs and 2nd form to photocopy and distribute to clients / others
Overview: SB 1950 directs the MBC to "adopt regulations defining the appropriate standards of care and level of supervision required for the practice of midwifery". The intent of the legislative language in SB 1950 as authored by Senator Figueroa was to acknowledge, through formal regulations, the identified differences between a medically - derived standard of care impressed on midwifery by medical practitioners and that of an "appropriate" standard of care as acknowledged by Judge Roman in the Alison Osborn Decision and identified as reflecting the historical philosophy, principles and practices of the midwifery model of care.
Physician Supervision: The effect of the administrative law judgment in the Osborn case included the licensed midwife's relationship with physician supervision, which was determined by Judge Roman to be legally impossible as a result of the "hostility of the obstetrical community" and limitations placed on physicians by their malpractice insurance carriers. Judge Roman ruled that it "satisfied the ambit of the law" when an LM made a "good faith effort" to secure supervision and failing that, made appropriate "backup arrangements" for medical interface during pregnancy, labor, birth and immediate postpartum/neonatal period. This aspect of the Osborn Decision was incorporated in black letter law in the informed consent language mandated by SB 1479. (hot link to text of Medical Interface)
There are other possibilities for regulations pertaining to physician supervision such as identifying clients with concurrent care, HMO coverage and those that decline to have a client relationship with a physician supervisor as already fulfilling or exempt from the necessity of having additional physician supervision. Also there is the possibility of a regulation directing the LM to file an incident report each time she denied consultative services by local physician or one of her clients is refused preventative or essential medical care.
Rules of the "Regulation Game": Keep in mind that the regulatory process is 'democracy at work' and contains many constitutional protections for LMs as well as childbearing women. First, it requires public hearings with a 45 days advance notice. This solicits the input of all "interested parties" either in person at the hearing or as written testimony submitted by that date. Then the proposed (and possibly amended) regulations must receive a majority vote by the seven members of the Division of Licensing (of the MBC), which comes only after the public hearing and reading of all written testimony. If substantial changes are made, a new hearing and new testimony must be scheduled.
Finally the entire 'rulemaking book' (a file containing all written testimony from the hearings and supporting documents by the MBC) is sent to the Office of Administrative Law for AOL's approval. Without AOL approval the regulations never become law. The MBC must meet 6 strict criteria, including the ability to establish that the regulations submitted fulfilled the intent and the letter of the statute (language in SB 1950 as interpreted in light of the original LMPA and SB 1479 amendment) and that the methods codified in regulation were the least burdensome that would achieve the legislatively identified goals.
MBC's October 6th Proposal for Elimination of Care due to Identified Risk Factors: California LMs are grateful to Dr Pat Chase for her work in researching various standards of community-based midwifery care in other jurisdictions and her recommendation of the Washington State Home Birth Project criteria. However, the criteria of this project are voluntary for Washington State midwives, where as they would be mandatory for LMs.
California midwives are convinced that an "appropriate" standard of care for California midwives as referred to in SB 1950 would reflect the professional standards developed by California midwifery organizations. This would document standardized care as currently provided by LMs and as recognized by the administrative law judge in the Alison Osborn Decision.
An Appropriate Proposal: Any list of criteria (i.e., content) restricting midwifery practice should be preceded by the acknowledged context for midwifery care. Context for the midwifery model of care hinges on two main points of difference from the medical model -- the strict provision of physiological management to healthy women with normal pregnancies (i.e., normal or non-medical care, prohibits the use any 'artificial, forcible or mechanical means') and legal dependence on the informed consent of the parents, who are in fact, the "primary caregiver" for their healthy fetus. We serve at the pleasure of the parents.
The theory of 'Informed Consent' includes the right of the parents to make medically unpopular decisions and the right to decline advise (by midwives and medical practitioners) for prophylactic medicalization. These parental right apply only to risk factors (VBAC, PROM, etc) but not to diagnosed medical illnesses or any evident or emergent complications, which requires that a physician be immediately notified.
Political Action by LMs, Childbearing Families & the Public: Click on the hot links below and read each of the documents. After you finish familiarizing yourself with their content, please respond with a thoughtful presentation of how the California community of professionally licensed midwives could best arrive at an acceptable definition of an "appropriate" standard of care and associated guidelines and protocols. We currently have three existent models to choose from (Osborn, CAM or Cal College of Midwives) or we can create a hybrid.
I feel confident that we will eventually pass regulations that will both serve and safe-guard the childbearing public and protect the LM from non-meritorious prosecution and unwarranted disciplinary actions.
Links to Important Documents
Rebuttal to ACOG's use of Washington State Planned home birth study by Pang-Benedetti as rationale to pass regulations prohibiting LM from providing home-based midwifery care - 1/22/03
Press Release on Pang Study -- Version for Medical Board MFRY Tack Force Meeting January 30, 2003
ACOG Letter to MBC Dec 20, 2003 and copy of Letters to Editor on
Pang Study from California College of Midwives published in the
ACOG Green Journal -- Tosi - scanner problem, unable to post, check again tomorrow faith^O^
Major Points ~ Legal Theory for an "Appropriate" Midwifery Standard of Care
and the technical differences between Medicine and Midwifery --
Tort law vs Contract law -- Oct 2002
California College of Midwives' Dec 31st Letter to Teri Kizer, MBC
Comment on October 6th letter -- Dr Chase's proposed Regulations Mfry Practice
Text of Adopted Decision
1999 case against California Licensed Midwife Alison Osborn
Administrative Law Judge dismissed charges after extensive hearing
Text of Alison Osborn's letter to MBC -->> SB 1950
Text of Current 'Standard of Practice' by the ACDM / California College of Midwives
Text of 1983 California Association of Midwives Certification 'Standards of Practice'
Instructions for LMs Report to CALM on Inappropriate or Unsatisfactory Medical Interface, Unwarranted Disciplinary Actions by the Medical Board (also link to forms for LM and Parents)
Additional Information of Interest:
Text for Amicus Curiae Briefs ~ Osborn Case
(1) filled by California Citizens for Health Freedom
(2) and the California College of Midwives