BILL ANALYSIS Ó AB 1308 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1308 (Bonilla) As Amended September 6, 2013 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |72-0 |(May 16, 2013) |SENATE: |39-0 |(September 11, | | | | | | |2013) | ----------------------------------------------------------------- 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 Page 2 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 Page 4 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 Page 12 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