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
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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
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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
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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:
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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
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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
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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;
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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
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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
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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
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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.
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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
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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