BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1308
                                                                  Page  1

          CONCURRENCE IN SENATE AMENDMENTS
          AB 1308 (Bonilla)
          As Amended  September 6, 2013
          Majority vote
           
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          |ASSEMBLY:  |72-0 |(May 16, 2013)  |SENATE: |39-0 |(September 11, |
          |           |     |                |        |     |2013)          |
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           Original Committee Reference:    B.,P. & C.P.  

           SUMMARY  :  Revises the scope of practice for a licensed midwife  
          (LM) to remove the requirement of supervision by a physician and  
          surgeon; authorizes a LM to directly obtain supplies and  
          devices, obtain and administer drugs and diagnostic tests, order  
          testing, and receive reports that are necessary to his or her  
          practice of midwifery; and authorizes a LM to attend cases of  
          normal birth.  Specifically,  this bill  :  

          1)Authorizes a LM to directly obtain supplies and devices,  
            obtain and administer drugs and diagnostic tests, order  
            testing, and receive reports that are necessary to his or her  
            practice of midwifery and consistent with his or her scope of  
            practice.

          2)Expands the existing oral and written disclosures required of  
            a LM to a prospective client to include the specific  
            arrangements for the referral of complications to a physician  
            and surgeon for consultation, but this bill clarifies that the  
            LM shall not be required to identify a specific physician and  
            surgeon.

          3)Changes references from the National Association of  
            Childbearing Centers to the American Association of Birth  
            Centers.

          4)Revises a LM's scope of practice by deleting the physician  
            supervision requirement and authorizing a LM to attend cases  
            of normal pregnancy and childbirth.  

          5)Revises the definition of midwifery practice to be "the  
            furthering or undertaking by any licensed midwife to assist a  
            woman in childbirth as long as progress meets criteria  
            accepted as normal." 








                                                                  AB 1308
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          6)Defines "normal pregnancy and childbirth" to meet the  
            following conditions:

             a)   There is an absence of both of the following:

               i)     Any preexisting maternal disease or condition likely  
                 to affect the pregnancy; and,

               ii)    Significant disease arising from the pregnancy.

             b)   There is a singleton fetus;

             c)   There is a cephalic presentation;

             d)   The gestational age of the fetus is greater than 37  
               weeks and less than 42 completed weeks of pregnancy; and,

             e)   Labor is spontaneous or induced in an outpatient  
               setting.

          7)States that if a potential LM client meets all of the criteria  
            for a "normal pregnancy and childbirth" except i) or ii) in 6)  
            a) above, and the woman still desires to be a client of the  
            LM, the LM shall provide the woman with a referral for an  
            examination by a physician and surgeon trained in obstetrics  
            and gynecology. 

          8)Permits a LM to assist a potential midwife client who  
            otherwise meets the criteria for a normal pregnancy if a  
            physician and surgeon trained in obstetrics and gynecology  
            examines the woman and determines that the risk factors  
            presented by her disease or condition are not likely to  
            significantly affect the course of pregnancy and childbirth.

          9)Requires the Medical Board of California (MBC) to adopt  
            regulations specifying the conditions for "preexisting  
            maternal disease or condition likely to affect the pregnancy"  
            and "significant disease arising from the pregnancy."

          10)Requires a LM to immediately refer or transfer the client to  
            a physician and surgeon if at any point during a pregnancy,  
            childbirth, or postpartum care a client's condition deviates  
            from normal, and permits the LM to consult and remain in  
            consultation with the physician and surgeon after the referral  








                                                                  AB 1308
                                                                  Page  3

            or transfer.

          11)Permits the LM to resume primary care of the client and  
            resume assisting the client during her pregnancy, childbirth,  
            or postpartum care if a physician and surgeon determines that  
            the client's condition or concern has been resolved such that  
            the risk factors presented by a woman's disease or condition  
            are not likely to significantly affect the course of pregnancy  
            or childbirth.

          12)States that if a physician and surgeon determines that the  
            client's condition or concern has not been resolved, the LM  
            may provide concurrent care with a physician and surgeon and,  
            if authorized by the client, be present during the labor and  
            childbirth, and resume postpartum care, if appropriate, but  
            may not resume primary care of the client.

          13)Prohibits a LM from providing or continuing to provide  
            midwifery care to a woman with a risk factor that will  
            significantly affect the course of pregnancy and childbirth,  
            regardless of whether the woman has consented to this care or  
            refused care by a physician or surgeon, as specified.

          14)States that the practice of midwifery does not include the  
            assisting of childbirth by any artificial, forcible, or  
            mechanical means, nor the performance of any version of these  
            means.

          15)Clarifies that this bill does not authorize a LM to practice  
            medicine or to perform surgery.

          16)Requires a LM to disclose in oral and written form to a  
            prospective client as part of a client care plan, and obtain  
            informed consent, for the following:

             a)   The client is retaining a LM, not a certified nurse  
               midwife, and the LM is not supervised by a physician and  
               surgeon;

             b)   The LM's current licensure status and license number;
             c)   The practice settings in which the licensed midwife  
               practices;

             d)   The fact that many physicians and surgeons do not have  
               liability insurance coverage for services provided to  








                                                                  AB 1308
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               someone having a planned out-of-hospital birth;

             e)   The acknowledgment that if the client is advised to  
               consult with a physician and surgeon, failure to do so may  
               affect the client's legal rights in any professional  
               negligence actions against a physician and surgeon,  
               licensed health care professional, or hospital;

             f)   There are conditions that are outside of the scope of  
               practice of a LM that will result in a referral for a  
               consultation from, or transfer of care to, a physician and  
               surgeon;

             g)   Recommendations for preregistration at a hospital that  
               has obstetric emergency services and is most likely to  
               receive the transfer;

             h)   If, during the course of care, the client is informed  
               that she has or may have a condition indicating the need  
               for a mandatory transfer, the licensed midwife shall  
               initiate the transfer;

             i)   The availability of the text of laws regulating licensed  
               midwifery practices and the procedure for reporting  
               complaints to MBC, which may be found on MBC's Internet Web  
               site; and,

             j)   Consultation with a physician and surgeon does not alone  
               create a physician-patient relationship or any other  
               relationship with the physician and surgeon. The informed  
               consent shall specifically state that the LM and the  
               consulting physician and surgeon are not employees,  
               partners, associates, agents, or principals of one another.  
               The LM shall inform the patient that he or she is  
               independently licensed and practicing midwifery, and in  
               that regard is solely responsible for the services he or  
               she provides.

          17)Requires the consent to be signed by both the LM and the  
            client and placed in the client's medical record.

          18)Authorizes MBC to prescribe the form for the informed consent  
            statement required to be used by a LM.

          19)Requires a LM to provide records, including prenatal records,  








                                                                  AB 1308
                                                                  Page  5

            and speak with the receiving physician and surgeon about labor  
            up to the point of the transfer if a client is transferred to  
            a hospital. The hospital shall report each transfer of a  
            planned out-of-hospital birth to MBC and the California  
            Maternal Quality Care Collaborative using a standardized form  
            developed by MBC.

          20)Prohibits new licensees from substituting clinical experience  
            for formal didactic education beginning January 1, 2015.

          21)Authorizes MBC, with input from the Midwifery Advisory  
            Council, to adjust the data elements required to be reported  
            to better coordinate with other reporting systems, including  
            the reporting system of the Midwives Alliance of North America  
            (MANA), while maintaining the data elements unique to  
            California.  
          22)Deems failure to do the following, if required by law, to be  
            unprofessional conduct:

             a)   Consult with a physician and surgeon;

             b)   Refer a client to a physician and surgeon; and,

             c)   Transfer a client to a hospital.

          23)Makes legislative findings and declarations.

          24)Makes technical and clarifying amendments

          25)States that no reimbursement is required by this act because  
            the only costs that may be incurred by a local agency or  
            school district will be incurred because this act creates a  
            new crime or infraction, eliminates a crime or infraction,  
            changes the penalty for a crime or infraction, or changes the  
            definition of a crime.

           The Senate amendments  :

          1)Permit a LM to directly obtain devices and obtain and  
            administer drugs and diagnostic tests that are necessary to  
            his or her practice of midwifery and consistent with his or  
            her scope of practice.

          2)Clarify that the LM shall not be required to identify a  
            specific physician and surgeon for consultation regarding  








                                                                  AB 1308
                                                                  Page  6

            complications.

          3)Change references from the National Association of  
            Childbearing Centers to the American Association of Birth  
            Centers.

          4)Permit a LM to be one of at least two attendants required at  
            all times during birth.  

          5)Delete the requirement for the MBC to revise and adopt  
            regulations defining the supervision requirements between a  
            physician and a LM.

          6)Revise a LM's scope of practice by deleting the physician  
            supervision requirement and authorizing a LM to attend cases  
            of normal pregnancy and childbirth.

          7)Revise the definition of midwifery practice to be "the  
            furthering or undertaking by any licensed midwife to assist a  
            woman in childbirth as long as progress meets criteria  
            accepted as normal." 

          8)Define "normal pregnancy and childbirth" to meet the following  
            conditions:

             a)   There is an absence of both of the following:

               i)     Any preexisting maternal disease or condition likely  
                 to affect the pregnancy; and,

               ii)    Significant disease arising from the pregnancy;

             b)   There is a singleton fetus;

             c)   There is a cephalic presentation;

             d)   The gestational age of the fetus is greater than 37  
               weeks and less than 42 completed weeks of pregnancy; and,

             e)   Labor is spontaneous or induced in an outpatient  
               setting.

          9)State that if a potential LM client meets all of the criteria  
            for a "normal pregnancy and childbirth" except i) or ii) in 8)  
            a) above, and the woman still desires to be a client of the  








                                                                  AB 1308
                                                                  Page  7

            LM, the LM shall provide the woman with a referral for an  
            examination by a physician and surgeon trained in obstetrics  
            and gynecology. 

          10)Permit a LM to assist a potential midwife client who  
            otherwise meets the criteria for a normal pregnancy if a  
            physician and surgeon trained in obstetrics and gynecology  
            examines the woman and determines that the risk factors  
            presented by her disease or condition are not likely to  
            significantly affect the course of pregnancy and childbirth.

          11)Require MBC to adopt regulations specifying the conditions  
            for "preexisting maternal disease or condition likely to  
            affect the pregnancy" and "significant disease arising from  
            the pregnancy."

          12)Require a LM to immediately refer or transfer the client to a  
            physician and surgeon if at any point during a pregnancy,  
            childbirth, or postpartum care a client's condition deviates  
            from normal and permits the LM to consult and remain in  
            consultation with the physician and surgeon after the referral  
            or transfer.

          13)Permit the LM to resume primary care of the client and resume  
            assisting the client during her pregnancy, childbirth, or  
            postpartum care if a physician and surgeon determines that the  
            client's condition or concern has been resolved such that the  
            risk factors presented by a woman's disease or condition are  
            not likely to significantly affect the course of pregnancy or  
            childbirth.

          14)State that if a physician and surgeon determines that the  
            client's condition or concern has not been resolved, the LM  
            may provide concurrent care with a physician and surgeon and,  
            if authorized by the client, be present during the labor and  
            childbirth, and resume postpartum care, if appropriate, but  
            may not resume primary care of the client.

          15)Prohibit a LM from providing or continuing to provide  
            midwifery care to a woman with a risk factor that will  
            significantly affect the course of pregnancy and childbirth,  
            regardless of whether the woman has consented to this care or  
            refused care by a physician or surgeon, as specified.

          16)State that the practice of midwifery does not include the  








                                                                  AB 1308
                                                                  Page  8

            assisting of childbirth by any artificial, forcible, or  
            mechanical means, nor the performance of any version of these  
            means.

          17)Clarify that this bill does not authorize a LM to practice  
            medicine or to perform surgery.

          18)Require a LM to disclose in oral and written form to a  
            prospective client as part of a client care plan, and obtain  
            informed consent, for the following:

             a)   The client is retaining a LM, not a certified nurse  
               midwife, and the LM is not supervised by a physician and  
               surgeon;

             b)   The LM's current licensure status and license number;

             c)   The practice settings in which the licensed midwife  
               practices;

             d)   The fact that many physicians and surgeons do not have  
               liability insurance coverage for services provided to  
               someone having a planned out-of-hospital birth;

             e)   The acknowledgment that if the client is advised to  
               consult with a physician and surgeon, failure to do so may  
               affect the client's legal rights in any professional  
               negligence actions against a physician and surgeon,  
               licensed health care professional, or hospital;

             f)   There are conditions that are outside of the scope of  
               practice of a LM that will result in a referral for a  
               consultation from, or transfer of care to, a physician and  
               surgeon;

             g)   Recommendations for preregistration at a hospital that  
               has obstetric emergency services and is most likely to  
               receive the transfer;

             h)   If, during the course of care, the client is informed  
               that she has or may have a condition indicating the need  
               for a mandatory transfer, the licensed midwife shall  
               initiate the transfer;

             i)   The availability of the text of laws regulating licensed  








                                                                  AB 1308
                                                                  Page  9

               midwifery practices and the procedure for reporting  
               complaints to MBC, which may be found on MBC's Internet Web  
               site; and,

             j)   Consultation with a physician and surgeon does not alone  
               create a physician-patient relationship or any other  
               relationship with the physician and surgeon. The informed  
               consent shall specifically state that the LM and the  
               consulting physician and surgeon are not employees,  
               partners, associates, agents, or principals of one another.  
               The LM shall inform the patient that he or she is  
               independently licensed and practicing midwifery, and in  
               that regard is solely responsible for the services he or  
               she provides.

          19)Require the consent to be signed by both the LM and the  
            client and placed in the client's medical record.

          20)Authorize MBC to prescribe the form for the informed consent  
            statement required to be used by a LM.

          21)Require a LM to provide records, including prenatal records,  
            and speak with the receiving physician and surgeon about labor  
            up to the point of the transfer if a client is transferred to  
            a hospital. The hospital shall report each transfer of a  
            planned out-of-hospital birth to MBC and the California  
            Maternal Quality Care Collaborative using a standardized form  
            developed by MBC.
          22)Prohibit new licensees from substituting clinical experience  
            for formal didactic education, beginning January 1, 2015.

          23)Authorize MBC, with input from the Midwifery Advisory  
            Council, to adjust the data elements required to be reported  
            to better coordinate with other reporting systems, including  
            the reporting system of the Midwives Alliance of North America  
            (MANA), while maintaining the data elements unique to  
            California. 

          24)Deem failure to do the following, if required by law, to be  
            unprofessional conduct:

             a)   Consult with a physician and surgeon;

             b)   Refer a client to a physician and surgeon; and,









                                                                  AB 1308
                                                                  Page  10

             c)   Transfer a client to a hospital.

          25)Make technical and clarifying amendments.

           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.  
           

           COMMENTS  :   

           1)Midwifery and physician supervision requirements  .  A LM is an  
            individual who has been issued a license to practice midwifery  
            by MBC, under the supervision of a licensed physician.   
            Midwifery is the profession of offering care to childbearing  
            women during pregnancy, labor and birth, and during the  
            postpartum period.

            According to a 2013 sunset review report of MBC by the  
            California Senate Business, Professions, and Economic  
            Development (BPED) Committee, physician supervision is  
            essentially unavailable to LMs performing home births because  
            California physicians are generally prohibited by their  
            malpractice insurance companies from supervising LMs who  
            perform home births.

            Existing law previously required MBC to adopt regulations by  
            July 1, 2003, defining both the appropriate standard of care  
            and the level of supervision required for the practice of  
            midwifery.  However, due to its inability to reach a consensus  
            on the supervision issue, the MBC adopted the Standards of  
            Care for Midwifery in 2006 but delayed determining appropriate  
            supervision indefinitely.  BPED reported that three previous  
            attempts to resolve the physician supervision issue through  
            legislation and/or regulation have been unsuccessful due to  
            the widely divergent opinions of interested parties.

            Despite midwives' inability to obtain physician supervision,  
            midwives are currently performing midwifery without sanction  
            by MBC because a 1999 administrative court decision determined  
            that it was unfair to enforce the physician supervision  
            requirement because physician supervision is practically  
            unobtainable.  

            This bill would formally remove the physician supervision  
            requirement and allow LMs to assist cases of normal pregnancy  








                                                                  AB 1308
                                                                  Page  11

            and childbirth, as defined, while requiring an LM to consult  
            and refer to a physician and surgeon in cases deviating from  
            this standard.  In case of a transfer to a physician and  
            surgeon, an LM is required to provide records, including  
            prenatal records, and speak with the receiving physician and  
            surgeon to ensure a safe and informed handover.    

           2)Midwife access to supplies, testing, and results  .  According  
            to the author, some LMs are also impeded by the supervision  
            requirement because many drug, testing, and device suppliers  
            require the name of an ordering physician to fulfill requests,  
            thereby delaying or blocking an LM's ability to obtain  
            supplies, order tests, and receive results.  LMs who are  
            unable to establish an account with a local medical supply  
            company may have to order drugs and supplies from out of state  
            at significantly higher costs, or obtain them from another LM.  
             


            Continuity of care becomes an important patient issue when LMs  
            are unable to establish laboratory accounts or refer patients  
            for ultrasounds because patients then have to see a different  
            provider to get the appropriate tests.  This may increase  
            costs and cause delay for patients, and can affect  
            time-sensitive testing windows, such as those for the genetic  
            screening done in early pregnancy.  According to the author,  
            some patients have refused to seek out these laboratory tests  
            when they would have otherwise consented to them had they been  
            available through their licensed midwife. 

            This bill would explicitly authorize LMs to order the tests  
            and supplies necessary and appropriate to their practice  
            without naming a supervising physician.  

           3)Client disclosures  .  LMs are currently required to disclose  
            certain information to prospective clients, including whether  
            the midwife has liability coverage, the specific arrangements  
            for a hospital transfer, and complaint procedures.  This bill  
                                                                  significantly expands the required disclosures to include  
            information about the midwife's license, abilities, and  
            practice settings, and the legal relationship between the LM  
            and any physician he or she may consult with for purposes of  
            liability.  The midwife is required to provide a client care  
            plan and obtain informed consent for the information provided.  









                                                                  AB 1308
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           4)Arguments in support  .  The California Nurse-Midwives  
            Association writes, "Home birth as provided by qualified LMs  
            and Certified Nurse Midwives is an essential option for the  
            women and families of California, in line with a woman's right  
            to self-determination and participation in her health care  
            choices. Per the ACNM Home Birth Statement, 'ACNM supports the  
            right of women who meet selection criteria to choose home  
            birth.'

            "AB 1308 addresses barriers that impede women's access to safe  
            out-of-hospital birth and access to birth provider of their  
            choice. Importantly, this bill will remove physician  
            supervision, recognize LMs as qualified birth attendants in  
            alternative birth center settings, and provide LMs ability to  
            directly order drugs and supplies for use consistent with  
            their scope of practice."


           Analysis Prepared by  :    Sarah Huchel / B.,P. & C.P. / (916)  
          319-3301                                               


                                                                 FN:  
                                                                 0002775