Standard of Care - Med BD - Background ~ Dec 2004

Background & History of How and Why
the CCM Standards and Guidelines

How they have come to be referenced in MBC proposed regulations\

How to write testimony for MBC for the regulatory hearing

Mailing address for written testimony Att: NEW Deadline ~ February 7th

by faith gibson, LM, CPM

NOTE: Regulations are never written in stone. If adopted by the Medical Board at the February hearing (with or w/o small changes), they can be modified further (additions, corrections, clarifications) at the request of midwives or midwifery organizations, thru the same regulatory process. Should midwives reject the midwifery standard at the regulatory hearing, the Medical Board can be counted on to return to the medically-defined "standards" (list of prohibitions) already developed by them.

For reasons that will never be completely understood by me, the Medical Board of California precipitously reversed its long-standing opposition to all things midwife and voted to incorporate into regulation a comprehensive, mother-friendly and evidence-based midwifery standard of care for California midwives.

As midwives in our state already know, the specific standard and guidelines identified by the Medical Board was one compiled by me and published on the California College of Midwives' web site. I'd like to explain the recent history of how and why that came about.

The midwifery licensing ‘dilemma de jour’ for the last thousand days has been a legislative requirement (SB 1950, Senator Figueroa, July 2002), in which the Medical Board of California was directed to “adopt regulations defining physician supervision and the appropriate standard of care for and for the practice of midwifery”. The need for this legislation was triggered by the Board's history of using obstetricians as expert witnesses against midwives and using obstetrical standards as determiners in midwifery “quality of care” cases. As for the totally unworkable “physician supervision” issue, nine years of futile attempts by midwives to comply and equally futile attempts by the Board to prosecute non-compliance finally spurred an attempt by Senator Figueroa’s office to fix the problem by proposing a regulatory ‘work-around’.

The first 13 months post-SB 1950 were spent wrangling about the impasse that defines the current physician supervision provision of the LMPA. Since the Board did not look favorably on the language proposed by the midwives (which was originally negotiated by Senator Figueroa’s chief counsel), the Board choose not to vote on the proposed regulation relative to physician supervision and instead sent the physician supervision section of the regulatory language to the Attorney General’s Office for an official ruling (where it remains today, more than 14 months later).

Next the midwives who were regularly attending Board meetings (Karen Ehrlich and myself) focused on the idea of identifying the obvious – that the ‘appropriate’ standard of care for California licensed midwives would be a midwifery standard as defined by “the California community of midwives”. This is the same linguist form used to define standard of care for physicians and other health professionals and formed the original regulatory language. As many will remember, the MBC hearing on this proposed regulatory language was held in South San Francisco in August 2003.

For the Medical Board, the idea of midwives defining their own standard was an extreme departure from anything the Board would have proposed. See Letter From Dr. Chase -- October 2002. In a quandary about how to handle this problem, the Board let the clock run out on the 364 day limit on regulatory hearings. This meant starting all over again with new regulatory language and new hearings.

Last July (2004) the MBC's Midwifery Task Force proposed that Alaska's direct-entry statutes and regulations be adapted and adopted as the standards for Licensed Midwives in California. At the request of Dr Fantozzi, the Medical Board staff downloaded all midwifery-related state statutes and went thru them line by line, making lists of practice limitations, restrictions, and prohibitions from 14 different states, including Alaska. This became the latest MBC's proposed standards for California LMs. This list may be read by clicking on: MBC October 8th 2004 proposal

Several meetings the midwifery task force were held. At each meeting I argued that a list of negatives failed to meet the functional (and legal) needs of a professional standard, which is to positively establish professional competency. This can only be done by identifying the specific actions and activities required of a practitioner in order to be judged competent. Simply listing a 20 or 30 conditions under which are midwives are not permitted to provide care or acts deemed to be negligent is not a professional standard and could not fulfill the legal necessity of SB 1950. Dr. Fantozzi (chair of the midwifery task force and a truly lovely and gentle man), continued to grapple with the idea that a ‘proper’ midwifery standard was one compiled by the Medical Board staff from the statutes and regulation from other states. I call this the Chinese menu method – building up a final document by choosing one from column A and two from column B, etc. I continued to promote (with no observable success) the idea of a truly professional standard authored by the midwifery community. Round and round we went.

So I did the only thing I could think of and that was go to work downloading the same statutes and regulations from the 14 states with LM licensing laws that were the source of material used by the MBC staff in compiling their October 2002 & 2004 proposals. I also downloaded or had copies of professional standards from several different midwifery associations, in particular, Tennessee, Washington State, CAM's 1989 document and MANA's 1997 document. In order to integrate the large volume of sources (a 100-plus pages), I printed out all the documents (about 10 hours and an entire $32 black ink cartridge!), cut them apart with scissors, sorted them by categories and organized these piles into 30 different specific topics (this took bout 3 days). Then I took the scraps of paper for each of the 30 topics (anything from just a single sentence to a couple pages long) from as many as 10 different sources per topic and went thru each of them line by line.

I was looking for two things. First I wanted to be sure that I accounted for every single important factor relative to the professional practice of midwifery the from the standpoint of midwives and the safety of consumers and taking the legal requirement of the California LMPA into consideration. This included all significant variations, deviations, complications, emergencies, contingencies and extenuating circumstances. Second, I wanted to find the best, most well written version for each line of the discrete topics and their many subdivisions. I liken this task to separating nutritious farm fresh eggs from the straw and the chicken feathers. I organized all this material by gluing it back together, line-by-line, on color-coded sheets of paper for each major topic. This took me about 3 days.

Then I returned to my computer and pulled up all original sources and did a second, electronic "cut and paste" in my word processing program. This was like making 30 bowls of scrambling eggs into stand-alone ‘gourmet omelets’ (i.e., files) for each of these 30+ topics and took also about three 10-12 hour days. Last, but certainly not least, was to organize this morass of material into a logical and/or chronological order so that was understandable by professional and lay reader alike, which was to say, a modicum of literary merit that would assure intellectual rigor while pleasing both the eye and the ear. This took about 40 hours, since it required that I actually write text that would connect the disparate parts and new text in parts that were not adequately addressed by the original resources or were specific to the legal needs of the LMPA.

In addition to the issues of SB 1950 and the Medical Board's requirements, I thought of this as an opportunity to design a broadly-based, logically-organized document that would make the practice of midwifery understandable to members of other interested professionals, most especially, legislators, lawyers, Medical Board staff, physicians, reporters and the lay public. I felt it was important to have the other professionals involved in midwifery legislation understand the specifics of the issue, so as to broaden our base and strengthen our legal argument for rejecting the "Alaska Answer" and instead, have MBC regulations identify the midwifery profession as the appropriate source for midwifery standards in California.

At the end of this 3 week, 10-12 hours-a-day 'labor', the California College of Midwives Standards and Guideline for California Licensed Midwives (in a mere 51 pages) was born! After review and corrective feedback by several midwife colleagues, an experienced CNM who first practiced as a lay midwife, a pediatrician and a physician certified by NARM as a CPM that practiced as a homebirth midwife for 20 years, I printed hard copies and mailed them to the MBC and Senator Figueroa's office. The MBC staff thanked me for its copy and continued to work on the latest edition of their ‘Chinese menu’. It seemed hopeless.

Then on October 8^th everything mysteriously (and miraculously) changed. On that now famous Friday, Dr Fantozzi asked me to consult with him and the staff in Sacramento, which included their medical consultant Dr. Pat Chase, Linda Whitney, Linda Morris, Anita Scuri, senior counsel for the MBC and the new executive director of the MBC, Dave Thornton (Mr. Thornton used to be head of Enforcement). For the first one and ¾ quarter hours (out of the 2 hr meeting), we continued to verbally chase our tails. Then Anita got up from her chair and went to the white board on the wall of the meeting room. Patiently and obviously for the umpteenth time, she explained again (while drawing a diagram on the board), why the stand-alone list of prohibitions was not an appropriate choice as a " standard of care". Dr Fantozzi got the point being made by Anita and subsequently asked her to “write something” that would correct the identified problem. Section (a) of the regulatory notice was her suggestion on that fine Friday afternoon and one that was graciously accepted by Dr Fantozzi and a very amazed faith gibson!

At the November Board meeting Anita, (again at Dr Fantozzi’s request) stepped in to craft section (b) of the regulation, quoting language taken directly from ACOG’s policies on the patient’s right of “informed refusal”. The next day the full DOL (which now includes an ACOG obstetrician) voted to accept the regulations as proposed. The hearing is set for February 18, 2005.

Because I have been regularly attending Medical Board meetings for the last 11 years, it seems that some in the midwifery community associate me with the Board, which is an entity they have had little reason to trust. They think that perhaps I have sold them out. They are suspicious of my motives and often hostile to my ideas. Many don't understand the highly technical legal & legislative information necessary, the patient accumulation of knowledge of Medical Board personalities and 'politics' and the importance of 'continuity' in presence which is needed in order to successfully advocate for the rights of healthy childbearing women and negotiate on behalf of midwives. In the last decade, during which I attended Board meetings as the official liaison for CAM (as well as the CCM), I frequently (a statistical majority of times) was the only midwife in the room or Karen Ehrlich and I were the only midwives present and representing licensed midwifery.

The fact than 178 out of 180 California licensed midwives did not regularly attend and participate in Medical Board functions leads to a genuine misunderstanding about the Medical Board and my role. In addition, there is always the real possibility that an articulated midwifery standard could work against us somewhere down the road. Occupying new territory always entails risk as well as expanded abilities. However, I believe that digging in and defending old territory in this situation also entails the very real possibility that we will wind up cutting ourselves off from an important opportunity to better protect ourselves and the childbearing women we serve from many of the legal problems that have plagued LMs (and indirectly affected our clients) since licensing was implemented in 1997.

But personally and politically, I believe these standards (including their guidelines) are good for midwives and good for mothers. I even believe they are even good for the regulatory agency by making what midwives do more logical and understandable. I think it’s a mistake to turn down this hard fought-for opportunity to have midwifery acknowledged by the Board as a self-defining profession. Due to current political pressures of the moment, the Board is motivated to cooperate with the interests of licensed midwives. If this train leaves the station without us, most likely it will not return again in the foreseeable future.

Remember that regulations are never written in stone. If adopted by the Medical Board at the February hearing (with or w/o small changes), they can be modified further (additions, corrections, clarifications) at the request of midwives or midwifery organizations, thru the same regulatory process. Should midwives reject the midwifery standard at the regulatory hearing, the Medical Board can be counted on to return to the medically-defined "standards" (list of prohibitions) already developed by them.

In order to keep that from happening, written and oral testimony supporting the Medial Board's proposed regulation is needed even if you are not supportive of the specific form (i.e., CCM Standards and Guidelines).

Midwives, current and formers clients , other professionals and those generally supportive of community-based midwifery should write letters actively praising the Medical Board for proposing to adopt a midwifery standard (instead of an obstetrical standard). Regardless of whether or not you are supportive of the CCM document, please note that it is a really BIG deal for the Medical Board to acknowledge midwifery as a self-defining profession. As a self-defining profession, we can and will be able to make necessary changes, including to replace the entire scheme with CAM or MANA standards when/if an articulated set of guidelines is ever developed.

This has occurred as a combined result of Senator Figuero's legislative efforts and the Board's willingness to aced to the well-articulated needs of the licensed midwives and the childbearing women who choose midwifery care. This means the Board listened to us and gave our proposals greater weight than the complaints of American College of Obstetricians and Gynecologists (ACOG).

In December of 2002, ACOG sent an official letter to the board which used quotes from Pang Study (“Outcomes of Planned Home Birth In Washington State” by Jenny W. Y. Pang, MD, MPH et al) to support the obstetrical profession's favorite thesis -- that home birth had been definitively, scientifically proven dangerous by the Pang study, therefore the standard for midwives should prohibit all home-based birth care and that the only 'appropriate' standard of practice should be an obstetrical standard to utilized only in hospitals under the supervision of an obstetrician. A copy of the entire Pang study was included with their letter to the Board, just to 'prove' their point.

So what ever you may think about the CCM Standard and Guidelines, please remember that we actually are getting what we need most -- acknowledgement of midwifery as a safe and self-defining profession.

I spoke with the senior counsel in Senator Figueroa's office about how to best address this situation. He is a lawyer who formally worked in the Office of Administrative Law and thus is unusually knowledgeable on the topic. He explained the regulatory process in detail and graciously offered to provide guidance in regard to written testimony (which should be submitted prior to the regulatory hearing and must be received by Feb 7th). He suggested the following:

1. In order to help the Medical Board and OAL sort and categorize the written comments they receive, please begin the main portion of your letter (after your own address and that of the Medical Board) by stating whether you are supporting or opposing the proposed regulation. Note in bold type:

2. Begin the main part of your letter by introducing yourself briefly and providing a tiny bit of background that identifies why you are interested in/or have expert knowledge in regard to midwifery regulations.

3. I am writing to thank you for this proposed regulation which identifies a midwifery-based standard of care as the appropriate standard for the professional practice of midwifery in California.

4. Option #1: I believe the proposed standards and guidelines are comprehensive, evidence-based and do an excellent job of describing the professional practice of midwifery. In addition, they promote consumer safety and thus are protective of mothers and babies who are cared for by California licensed midwives. I encourage the members of the Division of Licensing to pass the regulation as proposed.

5. Option #2: While I heartily support the identification of midwifery standards as appropriate for the practice of midwifery and commend the Medical Board for its efforts in that regard,

The new deadline for the Board to receive written testimony is February 7, 2005. The mailing address and other pertinent information can be read or downloaded at the Medical Board's web site.

In addition to mailing a hard copy of your letter to one of the people listed below, please email me a copy of your testimony, to be posted on a website archive. Email address is goodnews@best.com

Inquiries or comments concerning the substance of the proposed regulation may be addressed to:

(1) Name: Susan Lancara
Address: Medical Board of California
1426 Howe Avenue, Suite 54, Sacramento, CA 95825

Inquiries or comments concerning the proposed rulemaking action may be addressed to:

(2) Name: Kevin Schunke
Address: Medical Board of California
1430 Howe Avenue, Suite 92, Sacramento, CA 95825

Telephone No.: (916) 263-2368
Fax No.: (916) 263-2387
E-Mail Address: KSchunke@medbd.ca.gov

(3) Name: Linda Whitney
Address: Medical Board of California
1430 Howe Avenue, Suite 92, Sacramento, CA 95825

Telephone No.: (916) 263-2389
Fax No.: (916) 263-2387
E-Mail Address: LWhitney@medbd.ca.gov

Web Site Access: Materials regarding this proposal can be found at www.caldocinfo.ca.gov