SB 1638, by Senator Figueroa, mandated that the Medical Board of California empanel a Midwifery Advisory Council and collect statistics on the practice of licensed midwives, in particular, the number of planned home births attended each year by each LM. SB 1638 was incorporated in the LMPA as Section 2509 and reads: "The Board shall create and appoint a Midwifery Advisory Council consisting of licentiates of the Board in good standing, who need not be member of the Board, and members of the pubic who have an interest in midwifery practice, including, but not limited, to home birth. At least one-half of the Council members  shall be California licensed midwives. The Council shall make recommendations on matters specified by the Board." After the November 2006 Quarterly Board meeting, 'interest form' applications for the Midwifery Council were mailed to all California LMs, as well as any organizations or individuals who requested one.  The Medical Board staff, in conjunction with Dr. Fantozzi, made formal recommendations to the MBC Midwifery Committee in a document dated January 17, 2007, for a six-member advisory council consisting of : Three LMs -- Carrie Sparavohn, CAM liaison;  California College of Midwives' rep Faith Gibson and Santa Cruz Birthing Network rep Karen Ehrlich  Two OB (both identified as "public members") -- Dr Ruth Haskins, obstetrician and Chair of ACOG District IX Legislative Committee, and  Dr Guillermo Valenzuela, obstetrician and CMA member. One MBC member -- "to be determined" I (faith gibson) did not received the receive the Medical Board recommendations until Thursday, January 25th. I notified Carrie of its contents and we both talked to the Chief of Licensing, Gary Qualset, expressing distress at the lack of any consumer participants and that a CMA obstetrician had been appointed. Gary pointed out that the recommendations were arrived at in conjunction with requests by Dr Fantozzi, and that the forum for negotiating changes was the February 1st midwifery committee meeting, as Mr. Qualset did not have independent authority to change the recommendations. I forwarded a letter on this topic last November (2006) to Gary and Dr Fantozzi both, but never had the opportunity to have a conversation, either in person or by phone, with Dr. Fantozzi about this issue. At the scheduled Midwifery Committee meeting Thursday, Feb 1st at 2 pm in Los Angeles Airport Hilton, Dr Fantozzi opened the proceeding by stating he had been the originator of the midwifery advisory council, having personally requested Senator Figueroa's office to carry such a bill and that its purpose was to give the licensed midwives legitimacy. In order to do that, he expressed the opinion that it was vital to have obstetricians on the council, and that it was particularly crucial to include the participation of the CMA if we wanted to get anything done. He also stated that the Council would only be able to do its work (legislatively defined as "making recommendations on matters specified by the Board") by empanelling professionals and only professionals who understand the "matters" of concern to the Medical Board and that a larger number of members would make the Council inefficient. He concluded by pointing out that the Council meetings would be open to the 'public', which meant that as many 'public members' as wanted could come to the meeting, speak at them and submit documents making requests, therefore consumers needs were amply represented without having them appointed to the Council.    I (and perhaps others) was surprised by the opening remarks of Dr Fantozzi, as I personally have spent the last 12 years (since the implementation of the LMPA) trying to create an official mechanism within the Medical Board (a committee, panel, consultants, etc) that permitted midwives to have input up front (before decision were finalized) to the Medical Board's regulatory process. I also had talked many times over the years to Senator Figueroa's staff about this, as had Frank Cuny. Nonetheless, the Senator's willingness to carry such legislation occurred only after it was clear that the Medical Board would support it. I am assuming that Dr. Fantozzi (instead of Senator Figueroa's staff) framed the final language for the Council (I submitted sample wording to Vince Marchand a year earlier). This would explain why we are having this mismatch between the expectations of the midwives and the reality of the law. In spite of Dr Fantozzi's efforts to assure the midwives that our fears were groundless, Carrie Sparovohn, Tonya Brooks, Diane Holtzer, Karen Ehrlich, Donna Russell (California Citizens for Health Freedom) and I each spoke to the issues as identified above -- we felt, and continue to feel, that we need another LM on the Board, one that represents Southern California, that we need true consumer representation and participation and that it is inappropriate to empanel the CMA. We also expressed our opinion that it was improper to list the obstetrician members as "public members" when in fact, they are licentiates of the Medical Board. These comments spurred a further discussion among the four Mfry Committee Board members. At the suggestion of Anita Scuri,  (senior counsel for the Board) the Committee agreed to reclassify the two obstetricians as licentiates of the Board instead of public members and to appoint a non-MD member of the Medical Board -- Barbara Jaroslavsky --as the "public member". Barbara Jaroslavsky is already a member of the Midwifery Committee. Those of you who were at the "Standard of Care" meeting held at the Medical Board's Sacramento office on September 15, 2005 may remember her. Ms Jaroslavsky also expressed the need to make midwives appear more legitimate or to improve our status somehow (can't recall her exact phrase) by having this configuration of obstetricians. Frankly, I don't get this concept, as I neither see midwives as lacking in legitimacy nor do I understand how the Council would be able to provide legitimacy if it was indeed lacking. But I am acutely aware that our expectations and the Board's are dramatically different and that SB 1638 apparently (according to the two lawyers I have spoken with so far) gives the Board total control over the process and the product. This was hammered home when Dr. Fantozzi instructed Gary Qualset to create an agenda for the initial meeting. When I pointed this out, Dr. Fantozzi assured me that the Council will also have input into its agenda once it is up and functioning. I was under-whelmed. So the Mfry Committee voted to seal the deal, pretty much as proposed except for the addition of Barbara Jaroslavsky and the reassigning of the OBs to the appropriate category of MDs rather than public members. The next day the recommendation were an agenda item for the DOL and so the full panel of seven DOL members also listened to the midwives repeat the same reservations as we had voiced on Thursday. I also expressed my disappointment with a process that appeared to me to put midwives in the position of simply being passive elements in someone else's bureaucratic activity.  Dr. Laurie Gregg, Heroine of the Day Before the final vote was taken in the DOL, Dr Laurie Gregg (OB from Sacramento area who is a DOL Board member) spoke up and referred to her recent experience in putting together an advisory committee for the physician diversion project. This process apparently included at least two meeting with the "interested parties", which created an advisory mechanism that was crafted by those most impacted by the process. Dr Gregg suggested the DOL shelve the current recommendations and go back to the drawing board and develop a Council that was the result of mutual input and included a group process in its development. Dr. Fantozzi was strongly opposed to this idea and the remaining 6 members of the DOL voted "YES", thus passing the pre-existing recommendations. Dr. Gregg abstained from voting. If any of you know Dr Gregg, please send her flowers or a thank you card, or perhaps a proposal of marriage, as I believe she was the only person in the room that "got it", and personally, I will be forever in her debt. The bottom line is that the Council will meet four times a year in Sacramento, approximately one month after each of the four MedBd Quarterly meetings.  That means that mfry Board-groupies will have to attend EIGHT meeting a year!  The first one will probably be March 8th in Sacramento at the MBC office. Seated members will chose a chair person and make some decisions about "process". The first order of business will be the development of background material and criteria for the collecting of statistics on LM attended PHB. ================================================================================ Personal Reflections: This was my second worst Medical Board event ever in the last 13 years -- not counting arrest and prosecution of course.  Were I an artist trying to represent the 'status' relationships represented by the transactions on Thursday and Friday and our experience during these meetings, I would draw a picture of meeting room in which the chairs in the 'audience' were all occupied by boxes (passive, mute, stationary) with UPS or FedEx labels affixed to them, while all the people in the front of the room discussed routing codes, shipping manifests, how much to charge for each and generally occupied themselves with running a business in which we, the packages, were their cargo. I'm sure we have all had this experience as kindergarteners. I also had it during the 15 hours I was in a holding cell after having been arrested. During these meeting, I was so angry I couldn't speak at first and later was afraid to engage in lengthy conversation with the Committee members, lest I damage the reputation of midwives and set back our cause. I know that sounds harsh. I hope I'm wrong or over-reacting; I hope this circumstances corrects itself. I have to mention that Dr Fantozzi had a badly injured knee, was on crutches and maybe on pain meds. His fervor makes me wonder if he knows something that would explain the haste and the insistence on preserving intact this specific configuration, which was his personal request. Maybe a pleasant surprise awaits us, maybe this is an opportunity that will result in legislative remedies requested by the Board and in that regard, it is definitely better to have the CMA's cooperation. Maybe this is the only way to achieve that -- only time will tell. If not, we will have to make some very unpleasant decisions by February of next year. However, at this point, the best policy, IMHO, is to ride the wave into the shore and see what happens next. We need a strong and vocal presence of LMs AND of consumers at each of the Council meetings. We need letters such as four of you (bless your hearts!) wrote and sent with me to give to the Board. I am starting an official notebook of correspondence  I receive for matters that LMs and consumers requests  to be addressed by the Council (with those four letters for starters).  While waiting for my flight to San Jose, I sat with Hedy Chang (a board member on the DOL) for about a half hour until our plane boarded. We discussed the deleterious effects of the physician supervision impasse on patient care that she was not aware of, such as inability to get O2 and physicians refusing to provide services (NSTs,  US, etc) to clients of LMs (ex. the  fetal demise Chico because none of the local docs would see a post-date mom). I suggested that we pursue legislation based on public safety that would require doctors to take referrals from LMs. While that does not directly affect physician supervision, there are a variety of independent fixes or "work-arounds" for some of the other aspects of the PhySupervison issue. Heady interested in talking further, so I will follow up with her. On a similar note, Karen Ehrlich and I are going to put together a notebook for each of the non-LM members of the Council with the history of California midwifery legislation, our 13 years experience with the MBC as our regulatory agency, copies of all the major studies on the efficacy of planned home birth with a professional birth attendant and copies of letters from LMs and consumers. I also suggest we post a Pod-cast of the Council meetings, so everyone can hear what goes on. So write me letters. Get your clients to write letters. Soon -- very soon!

Dr Richard Fantozzi, DOL Medical Board of California 1426 Howe Ave Suite 54 Sacramento, Ca 95825 916 / 263-2365 California College of Midwives 3889 Middlefield Road Palo Alto, Ca 94303 650 / 328-8491  November 28, 2006 RE: Recommendation SB 1638 ~ Advisory Council & Statistical Collection Process Dear Dr. Fantozzi, I have circulated the MBC letter and Advisory Council interest form via the College of Midwives’ web site, as well as posting them on a state-wide email group for California midwives. I have tendered my own application and resume. And as usual, I have opinions about the nature of the council and its functional structure. It’s been a long 12 years of trying and here-to-fore failing to create an effective interface between the licensed midwives and the Board. My hope and goal for the Advisory Counsel is that it provide an opportunity for practicing LMs discuss problems and to feed potential solutions to the Board and the Agency staff about the practice of midwifery and issues facing California LMs.  As you know, I provided the original wording for SB 1638 to Vince Marchand months before the final draft. I would have preferred a tighter, more specific wording but believe it is still possible to accomplish the purpose of both provisions -- collection of statistics (preferably prospectively via internet booking of all clients before the birth) and the advisory council as a stable format that offers much needed input and is capable of creating ‘institutional memory’ for the MBC. This letter address four issues (1) the functional structure of the Council; (2) the category of non-LM appointments to the Council; (3) the configuration of the statistical collection process; (4) the offer by the author of the BMJ study on planned home births (Ken Johnson, PhD) to contribute his codes for the prospective collection of LM outcome statistics. Conversations at last Quarterly Meeting At the Quarterly Board meeting we discussed ways for the council to accomplish its goals in a straight forward and timely manner. I have labored over this problem since that conversation and recently came up with an idea that I believe gives us the best of all worlds. It conforms with the authorizing statute (SB 1638), allows for the maximum public participation while minimizing the number of empanelled appointees, utilizes a structure that everyone is already familiar with (MBC meeting format) and imposes a specific, time-limited structure on debate (since being talked to death is a terrible way to die!). Lengthy contentious debate is always counter-productive. The following suggestions address group dynamics as well as the ever-present politics that hover in the background of all midwifery-related topics. I believe this structure would prevent the group from becoming increasingly ineffective or immobilized by the built-in controversy between midwives and organized medicine. In addition to my own experience with midwifery and medical politics, my perspective on this topic is informed by the original 1876 Medical Practice Act and its many amendments. The original configuration of the Medical Board’s appointed governing structure is actually quite interesting. The earliest Boards of Medical Examiners were configured by having each professional organization that represented a discrete healing arts discipline (allopaths, osteopaths, naturopaths, eclectics, etc) provide the governor with the names of 3 members recommended by their organization, from which the governor made the final choice of a representative for each discipline. Unfortunately, that mechanism did not include two important constituencies: consumers and an ‘at-large’ or unaffiliated delegate. In the future, I would suggest that we use a version of the idea by having the midwifery community, via their organizations, provide the names of individual LMs by whom they would like to be represented. The unaffiliated delegate should be chosen by a lottery of the top ten applications. This would avoid the avalanche of applications and the torturous job of picking out a tiny number of reps with very little information to go on. So here are my suggestions for the structure and routine function of the Midwifery Advisory Council. It is basically the same as all the other scheduled medical board meetings. In some states, this is called ‘government in the sunshine’. Regular Functions: The council to be made up of 9 members -- 5 LMs & 4 non-LMs -- and to function under Roberts Rules of Order (RRO) with a published meeting agenda Public comments on agenda items would be solicited before any item is voted on by the Council All routine business to be decided by simple majority vote Formal recommendations made by the Council to the MBC/DOL to be recorded in a numbered and dated log (avoids the expense of audio recording of Council meetings) General public commentary at the end of the meeting, including those wishing to recommend future agenda items, would be limited by the time available that day and equally apportioned between those wishing to speak Exceptional or Temporary Circumstances: Initial identification by the Medical Board of a pro-tem chairperson for a term of no more than 6 months, with democratic election of a chair at the end of that period by simple majority vote of empanelled council members Due to the on-call nature of midwifery practice, an identified alternate for each LM should be named, who would be present as a non-voting individual at each meeting in order to become fully informed of the council’s current business. A designated alternate would vote only when replacing her empanelled LM.  A mechanism within RRO to add any urgent business or high priority item not on the schedule into the day’s agenda  The ability of the Council to meet in closed session to discuss disciplinary matters; when required to protect the privacy of a consumer, LM or physician or to facilitate honest discussion on a sensitive topic. Voting on formal business or recommendations only in open sessions. Decisions to reconfigure the council’s structure to be decided by a supermajority of 7 members – a minimum of 4 LMs and 3 non-LM members. In other words, if the council believes it would be in its best interest to substantially restructure some aspect of its function or to replace members, that decision would require a supermajority consisting of at least 4 LMs and 3 consumers, adding up to 7 or greater confirmative votes. Ability of the council via supermajority vote to replace a permanent member who is obstructing the business of the council or unable to satisfactorily participate, with one of the alternate participants My experience with midwives and organized medicine leads me to believe that this specific configure would be very beneficial to the midwives and to the MBC’s mission – consumer protection. It places time limits on debate, it argues against the forming of small ‘clicks’, thus maximizing mutual cooperation. By having the Council meet in public, it puts to rest the notion that its members are an elitist group arriving at decisions behind closed doors and then exercising unfettered power. Deliberation in the ‘sunshine’ greatly improves the acceptance of any recommendations made by the Council. It also dilutes the anxiety of those LMs, consumers and yes, even the reps from ACOG and CMA, who would like to have been appointed, but were unable to be seated on the panel due to the inherent limitations on the Council membership. The ability of the Council to unseat members who don’t ‘play nice’ or won’t pull their weight gives members a strong reason to attend regularly, do their fair share and make every reasonable effort to get along with one another.  The idea of a 7 member supermajority which has a 4/3 split entices members to make broader affiliations --“across the isle” so to speak, that is, across the natural cleft of LM versus non-LMs. This also favors cooperation and mutual negotiations in order to achieve their goals.  All and all, there is much to recommend this configuration and I hope the DOL will give it every consideration. Appointment of Non-LM members to the Advisory Council Midwives, myself included, are concerned that the goals of the Council not become entangled in yet another round of external manipulation by organized medicine, thus derailing it from its original purpose. The idea of ‘public’ (i.e. non-LM) members was to give the real ‘public’ - consumers who use or have a interest in supporting and promoting the practice of licensed midwifery - an opportunity for input, much as the Medical Board is open to public participation during the quarterly meetings. I honestly believe that neither ACOG nor CMA (as organizations) are appropriate candidates to be seated on the Midwifery Advisory Counsel. If CMA or AGOC are empanelled, I am afraid that none of the midwives, myself included, would be willing to be totally frank about topics that are controversial or which could be used against us by organized medicine. In my earlier recommendations for the Council’s structure, organized medicine would be welcomed in all public forums and have as much opportunity to speak as any other member of the public. The Council would be able to avoid the “big brother is listening” via closed sessions, which would, by their nature, be rare but an important option.   I have included two enclosures which I believe make the point quite well. The first is a objective report published in ObGynNews on the BMJ study, acknowledging what we all already know about planned home birth – (a) for a healthy childbearing population under the care of (b) a trained midwife with (c) access to appropriate obstetrical care for complications (or at the mother’s request), (d) PHB is as safe as planned hospital birth, with the (f) only major and important difference being the PHB cohort has two to tenfold rate fewer medical interventions, with a CS rate of under 4%. The second enclosure is ACOG’s 2006 statement on their OOH birth policy. Shannon Smith-Crowley (ACOG District IX lobbyist) told me last January that ACOG was working on a public response to the BMJ study and asked if I would be willing to travel to ACOG’s national office to help them come to terms with PHB and licensed midwifery in the 21st century. I said “you bet, I'll be there with bells on”, ACOG said “no, we don’t converse with midwives”. In 1979, 1999 and now in 2006, ACOG has issued a drop-drop dead statement on PHB. This year’s version is the same “we don't do windows, we don't do home birth and we don't like people who do”, but with a new wrinkle triggered by the BMJ study referred to above. It addition to dissing PHB (and ‘those’ who attend them!), they have added comparative research on PHB to their vitriol. While giving the finger to the BMJ study, their policy sets up partisan parameters for acceptable research which it “might” accept. Of course, these conditions would be impossible to attain: “… development of well-designed research studies of sufficient size, prepared in consultation with [hospital] obstetric departments and approved by institutional review boards, might clarify the comparative safety of births in different settings. Until the results of such studies are convincing, ACOG strongly opposes out-of-hospital births. ... ACOG does not support programs or individuals that advocate for or who provide out-of-hospital births.” [emphasize added] One of the doctors on our Canadian maternity care provider email group had the best comment of all on ACOG’s latest policy: “If you do not want to do something, one reason is as good as another” (Kerr White, Prof of Epidemiology, Johns Hopkins). In any event, this clearly documents ACOG as an organization that is officially and consistently opposed to PHB and those who provide such care. As such, their interest in midwifery is negative and disqualifies them from being empanelled on the Council.  In consultation with Senator Figueroa's staff (Vince Marchand) while SB 1638 was being crafted, we discussed a 9 member council with 5 LMs and 4 public members. CAM and CCM reps both identified public members as consumers (defined as parents who have had a home birth) and representatives of consumer organizations. This would be our first recommendation for the other 4 seats. However, both CAM and CCM agree that one physician member (either family practice or OB) who has worked with LMs providing PHB services would be OK. Dr Ruth Haskins is our first choice. Our second choice is Dr. Leon Schimmel, MD -- an obstetrician who has worked with both nurse and direct-entry midwives in the Davis-Sacramento area. Outcome Statistics for clients under the care of California LMs There can be no alibi for not knowing what is known or at least what is easily knowable. Consumer protection for any profession must include good data which permits the public to accurately assess the quality of care being provided. Collecting statistics by OSHPD became necessary, in part, because the Office of Vital Records (which registers birth) has not been forthcoming in collecting and releasing the data gathered on births registered by midwives. Also, hospital transfers of mothers in labor often get wrongly coded by the clerk as planned hospital births. They often figure that since the parents drove themselves to the hospital, they must have “planned” on having the baby there.   As you can see from ACOG’s 2006 policy statement on PHB, it is vital that the Agency and Board have accurate information about the efficacy of LM care. We were particularly interested in using the same “prospective” collection of data used in the BMJ study. This would mean that LMs ‘book’ or register each client at the beginning of care by entering their name and other basic data into the stats program developed by OSHPD and available via their web site. This would prevent LMs from leaving clients with problematic outcomes off the statistical report. By registering and accounting for all clients, the process becomes the “Gold Standard” for statistical validation. If these statistics establish the competency of LM care for PHB (which other studies have), then it is much easier fend off the endless appetite of organized medicine for enacting ever more punitive policies. If it illuminates problem areas, then changes in LM education, practice or policies can be implemented to fix the problem. This would be an excellent activity for the Council in 2008. As for the structure and process for the statistical program, it is my fervent hope that we don’t have to reinvent the wheel, wasting both money and time to arrive at an inferior product. Ken Johnson is the PhD epidemiologist who created the original 1993 midwifery stats project for North American midwives and conducted the research for the Certified Professional Midwives 2000 stats project. He was the lead author of the British Medical Journal study documenting the safety of LM/CPM midwifery, published 2005. Ken also has worked as a consultant with the California EPA on legislative recommendations relative to second hand cigarette smoke and breast cancer. He has graciously volunteered his assistance in developing this data base, including the codes used in those models, and offered to work with the OSHPD to help configure the stats’ system to match the original 2000 CPM study. This is a prospective method using the Internet to register each client. In addition, his collaboration would provide the computer codes for listing the most relevant codes defining “complications” which are consistent with the already existing data bases on planned home birth (there are well over 15,000 births currently in the CPM 200 study data base). Ken has all these resources already, so it would not be unduly time or labor intensive for him to participate. This configuration would make the data ‘prospective’ instead of ‘retrospective’ and is the strongest card against ACOG's official “nothing is ever good enough for us” attitude about LM/PHB statistics. I also believe that good prospective data is the only avenue available to us to eventually convince the State Legislature to replace mandatory physician supervision with a voluntary collaborative relationship. Only acknowledging licensed midwifery as an independent profession can provide the necessary firewall against vicarious liability for physicians, providing us with the ultimate win-win solution to this Hundred Years War. I hope OSHPD is open to the idea of using info from Dr Johnson. Here is contact info: Email at work: Ken LCDC Johnson <Ken_LCDC_Johnson@hc-sc.gc.ca> Home phone 613/ 730-xxxx (Ontario, Canada EST) Faith Gibson, LM, CPM Exec Dir ACCM/California College of Midwives Cc:      Gary Qualset, Chief, DOL, MBC             Herman W. Hill, Jr., MBA; MBC - Licensing Operations             Shannon Smith Crowley (personal communication)             Karen Ehrlich, LM; Board member, California College of Midwives             Carrie Sparrevohn, LM; Liaison to MBC, California Association of Midwives            Alison Osborn, LM, unaffiliated representative of California Midwives                                          Enclosures: Planned Home Births Safe, Study Results Suggest: ObGynNews, Vol 40, issue # 15             July 15, 2005             ACOG Statement of Policy on Out of Hospital Births in the US (2006)

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PS ~ Email me if you want to listen to the Mfry Committee or DOL meeting as a Pod-cast.