BILL ANALYSIS Ó AB 1306 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Susan Bonilla, Chair AB 1306 (Burke) - As Introduced February 27, 2015 SUBJECT: Healing arts: certified nurse-midwives: scope of practice. SUMMARY: Removes the physician supervision requirement for certified nurse midwives (CNMs) allowing them to manage a full range of primary health services, perform peripartum care, provide emergency care when a physician is not present and perform and repair episiotomies in all practice settings. EXISTING LAW: 1)The Nursing Practice Act, provides for the licensure and regulation of the practice of nursing by the Board of Registered Nursing (BRN), within the Department of Consumer Affairs, and authorizes the board to issue a certificate to practice nurse-midwifery to a person who meets educational standards established by the board or the equivalent of those educational standards. (Business and Professions Code (BPC) § 2700 et seq.) 2)Authorizes a CNM, under the supervision of a licensed physician and surgeon, to attend cases of normal childbirth AB 1306 Page 2 and to provide prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn. (BPC § 2746.5 (a)) 3)Provides that the practice of nurse-midwifery constitutes the furthering or undertaking by a certified person, under the supervision of a licensed physician and surgeon who has current practice or training in obstetrics, to assist a woman in childbirth so long as progress meets criteria accepted as normal. (BPC § 2746.5 (b)) 4)Authorizes a CNM to furnish and order drugs or devices incidentally to the provision of family planning services, routine health care or perinatal care, and care rendered consistently with the CNM's educational preparation in specified facilities and clinics, and only in accordance with standardized procedures and protocols, as specified. (BPC § 2746.51 et seq.) 5)Authorizes a CNM to perform and repair episiotomies and to repair first-degree and second degree lacerations of the perineum in a licensed acute care hospital and a licensed alternate birth center, if certain requirements are met, including, but not limited to, that episiotomies are performed pursuant to protocols developed and approved by the supervising physician and surgeon. (BPC § 2746.52) THIS BILL: 6)Requires an applicant for a certificate to practice nurse-midwifery to provide evidence of current advanced level national certification by a certifying body that meets standards established and approved by the BRN. 7)Requires the BRN to create and appoint a Nurse-Midwifery AB 1306 Page 3 Advisory Council (Council) consisting of CNM in good standing with experience in hospital and nonhospital practice settings, a nurse-midwife educator, as specified, and a consumer of midwifery care. 8)Requires the council to make recommendations to the board on all matters related to nurse-midwifery practice, education, and other matters specified by the board, and would require the council to meet regularly, but at least twice a year. 9)Authorizes a certified nurse-midwife to manage a full range of primary health care services for women from adolescence beyond menopause, including, but not limited to, gynecologic and family planning services. 10)Authorizes a certified nurse-midwife to practice in all settings, including, but not limited to, a home. 11)Declares that the practice of nurse-midwifery within a health care system provides for consultation, collaboration, or referral as indicated by the health status of the client and the resources of the medical personnel available in the setting of care, and would provide that the practice of nurse-midwifery emphasizes informed consent, preventive care and early detection and referral of complications to a physician and surgeon. 12)Authorizes a certified nurse-midwife to provide peripartum care in an out-of-hospital setting to low-risk women with uncomplicated singleton-term pregnancies who are expected to have uncomplicated birth. 13)Deletes the requirement that drugs or devices are furnished AB 1306 Page 4 or ordered in accordance with standardized procedures and protocols. 14)Authorizes a certified nurse-midwife to furnish and order drugs or devices in connection with care rendered in a home, and would authorize a certified nurse-midwife to directly procure supplies and devices, to order, obtain, and administer drugs and diagnostic tests, to order laboratory and diagnostic testing, and to receive reports that are necessary to his or her practice as a CNM and that are consistent with nurse-midwifery education preparation. 15)Authorizes a certified nurse-midwife to perform and repair episiotomies and to repair first-degree and second degree lacerations of the perineum in a patient's home, and deletes all requirements that those procedures be performed pursuant to protocols developed and approved by the supervising physician and surgeon. 16)Requires a certified nurse-midwife to provide emergency care to a patient during times when a physician and surgeon is unavailable. 17)Indicates that a consultative relationship between a CNM and a physician and surgeon by itself is not a basis for finding the physician and surgeon liable for any acts or omissions on the part of the CNM. FISCAL EFFECT: Unknown. This bill is keyed fiscal by the Legislative Counsel. COMMENTS: AB 1306 Page 5 18)Purpose. This bill is sponsored by the California Nurse Midwives Association . According to the author, "AB 1306 creates a level of parity in the law between [Licensed Midwives] and CNMs by removing the physician supervision requirements for CNMs, allowing them to practice independently within their scope of practice. If signed into law, CNMs will be able to provide a full range of services for women in all settings, furnish and order prescription drugs, supplies, and devices, order, obtain, and administer diagnostic tests, and receive reports. Most pregnancies and births are completely normal physiologic events. When permitted to work to the full extent of their education and experience, CNMs can expertly manage more births in California. Untethering CNMs from physician supervision requirements will increase access to primary health care services for thousands of women in both urban and rural areas." 19)Background. Midwifery is the care of childrearing women during pregnancy, labor and birth and during the postpartum period. Midwifery services are offered by CNMs, who are regulated by the BRN and Licensed Midwives (LMs) who are regulated by the Medical Board of California (MBC). While both CNMs and NMs practice midwifery, there are differences in their education requirements, practice settings and supervision requirements. Education. CNMs are licensed registered nurses with a certificate to practice midwifery, have acquired additional training in the field of obstetrics and are certified by the American College of Nurse Midwives. LMs have completed a three-year postsecondary education program AB 1306 Page 6 in an accredited midwifery school approved by the Medical Board or via the Challenge Mechanism. The Challenge Mechanism is an approved midwifery education program which allows students to obtain credit by examination for previous midwifery education and clinical experience. Practice Settings. LMs can practice in home, birth centers and clinics. CNMs can practice in the same settings, but, unlike LMs, they can also practice in hospital settings. In 2012, CNMs attended approximately 8.5 percent of all births in California - the majority of which took place in a hospital and 1365 were in free-standing birth centers. It is estimated that ninety percent of all CNM attended births take place in a hospital setting. CNM care is a federally mandated Medicaid benefit. According to the Centers for Disease Control, in 2012, 30 percent of CNM attended births in California were Medicaid, 65 percent were private pay and 2 percent were self-pay. Physician Supervision. In California, LMs are permitted to practice without the supervision of a physician. However, despite the fact that many states allow CNMs to practice independently, California is one of six states that still requires physician supervision of CNMs. California law specifies that the supervision shall not be construed to require the physical presence of the physician. It also requires that in order for a CNM to prescribe medication, a physician needs to be telephonically available. According to the author, although the supervision requirement tethers CNMs to practice only where a physician can supervise, it does not consist of actual oversight of health care delivery, inspection or review of charts, co-signature on prescriptions, direct care of the patient or evaluation of CNM AB 1306 Page 7 patients at any point during pregnancy or well-woman care. Changes to CNMs Scope of Practice. If this measure is enacted, a number of changes to the scope of practice for a CNM and authorization for a CNMs independent practice would be made. These include: a) Management of a full range of primary health care services for women from adolescence beyond menopause, including, but not limited to, gynecologic and family planning services. b) Practice in all settings, including, but not limited to, a home. c) Authorization to provide peripartum care in an out-of-hospital setting to low-risk women with uncomplicated singleton-term pregnancies who are expected to have an uncomplicated birth. d) A CNM would no longer be required to adhere to standardized procedures and protocols when: i. furnishing drugs or devices in connection with care rendered in a home; ii.procuring supplies and devices; iii.ordering, obtaining, and administering drugs and diagnostic tests; iv.ordering laboratory and diagnostic testing; AB 1306 Page 8 v. receiving reports that are necessary to his or her practice as a CNM; vi.performing and repairing episiotomies and to repair first-degree and second degree lacerations of the perineum in a patient's home; and, vii. providing emergency care to a patient during times when a physician and surgeon is unavailable. Prior Related Legislation. AB 1308 (Bonilla), Chapter 665, Statutes of 2013, removed physician supervision requirements for licensed midwives. SB 1950 (Figueroa), Chapter 1085, Statutes of 2002, required the MBC to adopt regulations defining the appropriate standard of care and level of supervision required for the practice of midwifery. SB 1479 (Figueroa), Chapter 303, Statutes of 2000, expanded the disclosures required to be given by licensed midwives and also required midwives to register birth certificates for home births. SB 350 (Killea), Chapter 1280, Statutes of 1993, enacted the Licensed Midwifery Practice Act of 1993 to provide for the licensing and regulation of non-nurse and non-physician assistant midwives by the MBC. ARGUMENTS IN SUPPORT: The California Nurse Midwives Association (sponsor) writes in their letter of support, "AB 1306 provides no new authority for CNMs than they currently provide. It ensures they can AB 1306 Page 9 practice as they currently do without physician supervision?CNM attended births have documented excellent maternity care outcomes?The excellent outcomes consistently achieved by nurse-midwives are the result of the midwifery model of care, not state-mandated relationships with physicians." The California Association for Nurse Practitioners supports the bill and writes, "With the addition of millions of individuals to California's healthcare system due to ACA implementation, more healthcare providers are crucial to ensure quality, timely access to care?AB 1306 will assist in addressing this problem by allowing nurse-midwives to work collaboratively with physicians to provide women's health care services across the state, including pregnancy and delivery care." Access Women's Health Justice , Beach Cities Midwifery & Women's Health Care , Beachside Birth Center , California Association of Nurse Anesthetists , Yes2Kollege Education Resources, and the Women's Community Clinic, all similarly write in their support letters, "Physician collaboration is and has always been a hallmark of nurse-midwifery care and AB 1306 will not change that?According to ACOG, California is facing a workforce shortage of women's health care providers?AB 1306 will not change the way that nurse-midwives currently practice and will not change the high quality of care provided by nurse-midwives." ARGUMENTS IN OPPOSITION: The California Medical Association opposes the bill and writes, "The CMA believes that AB 1306 allows certified nurse midwives to independently engage in the practice of medicine and lacks AB 1306 Page 10 several important patient protection statutes that include, but are not limited to: 1) the corporate practice of medicine, 2) self-referral and anti-kickback prohibitions, 3) standard of care and 4) prescribing oversight." POLICY ISSUES FOR CONSIDERATION: Examination Requirement. As highlighted by the opposition, this bill would authorize a CNM to work independently, without the supervision of a physician, and perform primary care services including gynecology. As such, the author may wish to amend the bill to include a requirement for an examination that would take place at the conclusion of the CNM's residency. This examination should include criteria similar to the United States Medical Licensing Examination, Step 3 which medical residents are required to take in order to show competency in practicing as an independent and unsupervised medical professional. Corporate Practice of Medicine (CPM). The CPM is defined as any involvement of corporations in medicine. The CPM may also be defined more narrowly, for example, as the employment of a physician by a lay-controlled corporation that sells the services of the physician for a profit or provides the physician's services to its employees free of charge. The CPM now most commonly refers to the employment of physicians by hospitals, but is also still used to refer to employment of physicians by for-profit and non-profit corporate entities and government (see BPC § 2400). This bill does not include a provision that prohibits the CPM. As such, the author should consider amending the bill to include language that explicitly prohibits the CPM considering that the AB 1306 Page 11 provisions of the bill would allow CNMs to act as a primary care physicians. The addition of this language would serve as an important patient protection measure. Cross Collaboration Between Advisory Councils. This bill would impact the practice of CNMs. It would also create a Nurse Midwives Advisory Council within the BRN. The MBC has a similar committee, the MBC Midwifery Advisory Council, which vets issues germane to the practice of midwifery. As such, it may be fruitful to require cross collaboration between the two committees as the practice of midwifery falls within the scope of practice for both CNMs and LMs. Self-referrals. Another patient protection measure that is not included in the bill is specific language that addresses self-referrals. California law contains prohibitions against self-referral in the Physician Ownership and Referral Act of 1993 (PORA) which applies to healthcare licensees. Under PORA, a "financial interest" includes direct or indirect compensation. This means that a physician should not have a stock ownership in the entity to which the physician is referring in order for PORA to apply (see BPC § 650.01). The author should include language in the bill that references these sections of law to ensure that the CNMs financial interests are not involved in the provision of medical care to patients. AB 1306 Page 12 REGISTERED SUPPORT: California Nurse Midwives Association (sponsor) AARP Access Women's Health Justice American Association of Birth Centers American Nurses Association California Association of California Healthcare Districts Beachside Birth Center Beach Cities Midwifery & Women's Health Care California Association of Nurse Anesthetists California Association for Nurse Practitioners Maternal and Child Health Access AB 1306 Page 13 Women's Community Clinic Yes2Kollege Education Resources Inc. Over 50 individuals REGISTERED OPPOSITION: California Medical Association 1 individual Analysis Prepared by:Le Ondra Clark Harvey, Ph.D. / B. & P. / (916) 319-3301