MBC-Midwifery Committee Meeting #3,

June 6, 1994 / Tape 2 (of 3), side b

Sacramento, Medical Board Office

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Verbatim transcription of audio tapes recording the preceding of the Midwifery Implementation Committee -- Dr Joas, Chairman

Members MBC present: -- Dr. Joas,MD; Stuart Hsieh, JD; Dr. Schumacher, MD

MBC staff present: Linda Whitney, Anita Scuri, JD, Tony Arjil, Rick

California Legislators: Senator Lucy Killea

Lobbyists: Joan Hall, CMA; Judge Gordon Cologne, JD and Mr. Barnaby -- malpractice carriers

Consumers: Todd Gastaldo,DC; Kathy McChesney

Other professional witnesses: Steve Keller, JD; Shelly S, MD (obstetrician from Oakland)

Midwives (partial list) : Tonya Brooks, CPM; Shannon Leahy, Maggie Bennett, CPM; Maria Iorillo, CPM; Faith Gibson, CPM

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Begin tape two, brief discontinuity from tape one, on-going discussion which is comparing the original midwifery bill, written by the midwives, with the enacted midwifery legislation (SB 350) as written by the CMA...

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Index -- Hot Links to go directly to specific topic & testimony listed witnesses

Judge Cologne's comments on CMA, consultation, homebirth midwives, cancelation

Midwife Maggie Bennett comments #one and #two on the lack of support by physicians

Shally Scalla, Obstetrician

Joan Hall, acknowledgment of competency of midwives license under the LMPA of 1993

Mr. Barnaby, Medical malpractice carrier representative

Senator Killea's testimony in opposition to written supervisory regulations by the MBC

Judge Cologne's Rebuttal to the Senator

Shannon Leahy -- questions whether malpractice carriers will cancel insurance on doctors

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Todd G: It {referring to the former bill authored by practicing midwives} didn’t have physician supervision and it didn’t have a hospital delivery provision, a mandatory hospital delivery, it mandated observation of 5 births out of 50 in the hospital but that was it. So we could go back to April, May 1993 and we could say 'Hey, Vivian Dickerson said they stuck in physician supervision', she’s an ACOG and a CMA member, and she said they stuck it in so as not to issue an invitation to home birth. I’m a home birth consumer -- we went to Oregon because of the oppressive state, I mean I’m a chiropractor but I’m here primarily because I’m a home birth consumer and we had to go to Oregon because all the midwives were running around like scared dogs, it just isn’t the way midwifery should be practiced.

Dr. Joas: I suggest that you go back the author, if you want to go back to the author...

Todd G: If you’ll go with me and say ‘we’re having problems’, I mean I’ll go with the Medical Board.

Dr. Joas: You can count on me...

Todd G: Ok, I would appreciate that.

Dr. Joas: But I also said that if we can’t reach agreement on what to do, and I will beg to differ with you on the fact that we’re not trying to implement the legislation. I’m running myself ragged.

Todd G: I never said you weren’t trying to implement it

Dr. Joas: Ok.

Todd G: I was saying the last item on the time line was clean up legislation, that’s what I’m recommending, that we stick with the timeline..

Dr. Joas: Perhaps we are.

Todd G: OK, good.

Dr. Joas: But I don’t think we have gone through all the provisions yet, you know, that’s the way I read it. Of course I’m not an implementer, that’s not what I do.

Tony Arjil: There’s a time line involved with this cleanup legislation, if, because of the accreditation requirement, we can’t come to agreement and everybody agrees that it requires legislative changes. Couple things has to happen. First of all the committee has to agree that there is a problem and take it before the DOL, so the Division of Licensing are the ones that would say that either the Medical Board is going to support legislation, for clean up for SB350 or they not and the associations are going to have to do that. The other problem of course is timing, because even if the Board were or the DOL were to take this responsibility, which at this time none of us can say what they would do, assuming they did, the legislative session for this years is just about done and we’d have to wait for the next session. The question is what happens to the midwives. {1-2 minutes of untranscribed tape concerning licensing exam}

Faith G: So does this whole thing go on hold?

Tony A: I don’t know what would happen --

Todd G: I like the idea of the committee asking the Division of Licensing to ask the Medical Board to support legislation to ......

Dr. Joas: That not at this time, we’re moving along on the slow democratic legislative process that we use in the United States today. That’s the nature of the beast. It doesn’t happen over night . If you want it to happen over night then you have to create a revolution and create a new government, that’s the way I see it. I don’t see it any differently than that.

Dr. Joas: The committee has already approved the fee structure, we moving on the issue on what should constitute an examination, we’re moving forward on what should be supervision, etc, etc, etc, so we are moving forward on the implementation which should be, perhaps, November, if we can’t reach any conclusion then we have to go back and ask for some clean up legislation. Ok, that’s how I understand implementation. Again, I’m not an implementor and that’s why I find it very difficult to get into this conversation.

Linda Whitney: Ok, the implementation time-line is to work through the legislature as it is this year and come to agreement on those pieces so that we can to put the program together. If there is clean up legislature that is necessary and the Board agrees on that, in Jan of 95 is when it is introduced. So in November we will have a sense of what needs to be done in legislature if that’s necessary. It s a shame that the Senator {Killea}is not here to hear some of your concerns because she did carry the original bill. But that what we are working towards and we are going to continue to work towards is implementation of this program. We’re not going to stop and throw out what we’ve done, we’re going to continue.

We may not have an education program that comes into California, but in my experience, where there is a demand, supply tends to follow. But they are going to be looking at what kind of demand there really is. When we ask originally if the demand was 200, 400, or 800 who were going be licensed, the educational programs are looking at that too, how many are going to come forward and want to go through with the process, the challenge mechanism. So they are going to be looking at that. I just got a copy of a letter from EPA, and it looks like we have some bad news, that Linda Walch is leaving EPA, but that doesn’t mean that there program isn’t available. They can still do something, they still exist we can still work with somebody and you guys need to talk to them. We talked to them but we aren’t going to force them into creating a program. They have to have enough input from other people to believe that it is a worthwhile, profit making venture, unfortunately because that is how it works, but we’re not going to stop on reciprocity, we’re moving ahead. That is for certain, were still working on it.

We are working on how to deal with supervision and that issue and we going to hear a little bit later from Judge Cologne on liability and insurance. We will we looking at other requirements that the Board will expect, in terms of a midwife, are we going to require CPR, are we going to require them to have not only regular CPR but neonatal. What are we going to be requiring in terms of those things. But it doesn’t mean that we may have to go forward or at least observe that legislation is required next years.

Maggie Bennett: I don’t know about all this stuff that we are trying to work through but it does seems to be misunderstanding on both sides. For instance, it seems like the Medical Board or sometimes people come in as Dr. Schumacher did earlier, and was surprised that midwives actually want to be part of the system which surprises us, because we wouldn’t be working so hard to get a licensing bill past if we didn’t. So its good to clarify that and its good for that message to get disseminated to all the doctors through out the state. On other hand I feel like I’m getting a very mixed message -- I would so like to be working with you and you and you as representatives of the medical board, ah, the California Medical Association as opposed to the physicians I actually do work with in my area because they don’t seem to know how much you want to supervise me, and don’t to know that you want them to come and want to watch me demonstrate my clinical skills, they don’t seem to want to come to home births with me, they don’t seem to want to come to my office and watch me palpate women. So my question is, how can we get this information to go in both directions, so that we are on the same team? I don’t see midwives getting licensed or this option of NARM happening at all until there is understanding on both sides and we are all working for the same thing.

Dr. Joas: I agree with that, the problem that I see is that you’re dealing with people who have been trained in two techniques, with different ways, with different societal backgrounds perhaps, training techniques and so forth, different mind sets, if you will, within the broad spectrum of American society and saying that these people, these people being the midwives, have accept these responsibilities for centuries in a particular area and have been very effective and successful and medical only thrived in last 100 years and has come to supplant some of these people {midwives} and has antagonized many of the others. That’s part of my historical background, through all of the reading that I have been doing. Ok, and that’s what I see.

But I also see a sea change at all levels of acceptability of alternative care, Ok, and I see that not only at state level but I see that at a federal level also I would hope it doesn’t take form of mandate, because I think that is a mistake in American society, Ok, but I do see that is an evolutionary process and I don’t know how you drag somebody to a place they don’t want to be and say ‘Ok, learn this because this is really the way we do it’ unless they express an interest in it. That’s my personal, medical background, bias coming through, Ok? I’m trying implement the legislature and I’m trying to educate myself whether I want to or not, Ok, I’m forcing myself in some instances to do this.

Maggie: I guess my question is, I think I spoke in another meeting about the relationship I have in my community, my hospital, with physicians in my community who are not my buddies and I don’t have lunch with me and I don’t tell anybody who they are, its just kinds of an agreement that they are going to take care of people who have to come in for a problem, they just do that. There is however, one physician in my town who actually, if someone comes into his office and says that they’d like to have a home birth, he would actually, he does refer to me. So after the last meeting I actually approached him, I worked up the courage for two or three weeks and I actually approached him and ask him, if when I got my license, would he by my supervising physician? and he laughed and said ‘why Maggie, no way’ and I said ‘why’, and he said ‘I’d get strung up’ and so what I want to know is, who shall I have this man call?

Stuart Hsieh: Strung up by who?

MaggieB: The rest of the physicians in my town.....

Dr. Scalla: I would just like to say something about that. I really fell wholeheartedly that what I think would happen is that there would be maybe just a few obstetricians or physicians who would be willing to do the backup and they would be ostracized by the medical community unless there is more of a sea change or unless it happens faster or something within our medical community that would help change people’s perceptions about midwives. But unless that happens, then it would just be a few isolated individuals. We got to ....

Dr. Joas: -- cross talk, can’t transcribe

Maggie {to Dr. Joas}: I’m wondering, can I ask this doctor to call you? And can I tell him that the CMA supports this legislation and wants me to have a license?

{Lots of energetic laughter by all}

Joan Hall: Let me tell you something, .......... this legislation has been introduced in various forms over the last several years and I inherited this legislation. This was the first time the medical association was willing to sit down and discuss it and understand the need to legitimize this process because you {the midwives}definitely have something to provide. That’s why the bill developed and I’d be more than willing to talk about it because we believe that the standards that are in the bill are standards that make for safe, capable practitioners. Yes, we believe in the standards in the bill. Maybe that needs to be more communicated because a lot physician I have talked to talk about licensing lay midwives, and I keep hearing that over and over again and people have an idea that a lay midwives is someone who learned how to "birth babies" on a farm somewhere or learned somewhere in the back woods how to deliver babies and not do it in a safe fashion. This bill doesn’t allow for that, there will be competent capable practitioners under the standards that are set up in this bill. So we very much believe in the standards in this bill.

Judge C: Doctor, if I could make a comment on that very point. We think the CMA has come a long way. When I used to work for the CMA, which was 4 years ago, I was handed the same bill and I was told to kill the bill and I did. The bill died. Now you find the CMA accepting the bill, they supported this bill when it came through. Granted its not what you wanted but its come a long way, what’s the saying "You’ve come a long way". They have changed there attitude. Now what they want to do, I think, is protect themselves so they don’t get dragged into an unfortunate situation and that all they asking for is supervision.

I think you are making a mistake. You know, we who work with the legislature have a saying that you don’t get everything you want in one year. You get as much as you can the first year, you get a step down the road, the next year you come back and make another step. If you look at the history of abortion, 10 years ago abortion would have been an absolute end to a political career, it took them 10 years to get that far. Don’t expect to get everything you want in one year but you’re made a lot of progress. You should be proud of that and I want you to know, we not here to stop that progress. We’re here to protect doctors and to protect you.

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Shannon Leahy: I really believe in a lot of progress {story of how CMA sent out letters to everyone in medical community degenerating midwives, talk abut dead babies, etc....}

Dr. Joas: The only problem with that is that is consultation not supervision which is vastly different from supervision....

Judge C: Rick, the only problem with that is we'd don't know what the statutes are in those states, this is consultation which is vastly different from consultation :

MBC staff person Rick: (out of order)

Rick: "what I was saying earlier is that supervision is defined by Marilyn as a trainee, this is the way a have chosen to define supervision once the person becomes licensed the state is looking at that midwife in a peer type relationship with the physician as a consultant, it is a professional type of relationship that’s the way they defined ?

===================Continuation of tape two, side ‘b’=====================

Joan Hall, CMA: I would like to address something so its clearly understood, and that is the term "supervision". The term supervision as written in the statute 2507, A. B. C. Supervision as used in this law is taken basically letter perfect from the nurse midwifery law. The Nurse midwifery Act did not include any kind of supervisory agreement It was put in regulation when they first initiated the law and was taken out in 1985

Joan hall: Yea, the actual language of the bill was taken from it. (the nurse midwifery bill)

Dr. Joas: Linda, will you explain what happened?

Linda Whitney: The next time supervision is used in the lay midwifery law has to do with the ratio of midwives to supervising physicians and supervising physicians {--- unable to transcribe-- }. That is not identical to the nurse midwifery bill. That’s a new section that is different. So that is something we need to address --?-- with the lay midwives. And then the only other time there is an implication of a supervising physician, although it doesn't say supervisor, ‘is that a licensed Midwife shall disclose to a client that a specific physician is being briefed regularly concerning the clients pregnancy’ but it doesn't say supervising physician. So what I want to know, ah, is do you treat the lay midwives differently than what your describing that you treat the nurse midwives?

Judge Cologne: Absolutely absolutely. If it were identical or the same, why didn't they put the lay midwives under the supervision of the nursing board? They didn't, they gave it to the Medical Board and the reason they gave it to the Medical Board and I don't know what was in the mind of Senator Killea or anybody else, but in my opinion the reason they gave it to the Medical Board to supervise is because the doctors now have a very important role, have a supervisorial role which is going to expose them to liability. If you're talking about a consulting capacity and that’s the way the bill was worded originally, we weren't opposed to it because it was consulting and the doctor was given immunity except for bad advice. Now that’s totally different from when it was amended and made him a supervisor. He is liable whether he gives bad advice or not. He might be liable because he did not investigate well enough the qualifications of this lay midwife. There are a lot of things that can make that doctor liable. So instead of giving it to the nurse-midwife {board}where the only concern is the professionalism of the lay midwife, they gave it to medical board. Now tell me why they gave the supervision to the Medical Board?

{Cross talk -- unable to transcribe}

Linda Whitney: Let me say this one more time, the nurse midwives are required to have a physician supervisor, just like the lay midwives.

Judge Cologne: that's right, that's right!

Linda Whitney: So I need to understand why they are treated differently than the lay midwives, I need to understand in respect to supervision?

Judge Cologne: Because in our experiences.............,

Joan Hall: Don’t you require that in your underwriting requirements?

Judge Cologne: In our experience the nurse-midwife has only been used in a hospital and in the hospital you have the physician immediately available, he’s on call, he’s there. With the lay midwife, we knew from the very beginning that what she wanted to do was home deliveries and in home deliveries, if you have a consulting capacity, we don't have a problem with that but if your doing home delivers and you want a doctor to be supervising you at all times then we want to be sure the medical board has a role in all this because they are the ones that are best able to protect and assure that the doctor know what he's getting into.

Linda Whitney: So the home deliveries are an issue?

Judge Cologne: The home deliveries are an issue on that point.

Dr. Joas: Time out again, time out again. Before she {Senator Killea} gets here ... I’d like to talk about another chance for our meeting

{........discontinuity of several minutes while date and location of next set ..........}

Tosi Marcelene: If I could just go back for a second and address Judge Cologne’s idea, his concern about why the Medical Board is taking care of this program rather than the nurse-midwives. The nurse-midwives are under the nursing board because they have a nursing license. They (nursing board) did not feel that they could take us. Our first preference was to have our own midwifery licensing board and truthfully we took the Medical Board because they were the cheapest, so it had to do with money, they proposed to regulate us with less money than the Department of health services. The idea of creating our own board was just prohibitively expensive and since we are trying to get legislation passed in a cost conscious time that was essentially the bottom line on where we went. So it really had nothing to do with who was being supervised or how and at what cost and having been involved in the legislation for a long time I can tell you this from the bottom of my heart, there was no sort of idea that the medical board was the most suitable place -- {laughter in the room}.

Judge Cologne: I can understand what was going through your mind and of course, what was going through my mind was how we protect doctors.

Shelly S {Ob from Oakland): I actually have a question. I’m quite confused. It seems like from an obstetrician’s perspective the best role, in terms of actually getting insurance, is a consultant. So why is it......{interrupt -- Judge C: No let me explain...}

Shelly: ..... because you said that was how you were going to insure obstetricians who were going to backup midwives, in the consultant role, not as a supervisor........

Judge Cologne: When the bill was first introduced it was in the language of a consultant not as a supervisor. The responsibility of a consultant are a lot less. The legislature, in its wisdom, went for the supervisory capacity which is more responsibility placed on the doctor. When the consulting language was in there it said the doctor would be responsible only for bad advise. You see now, with the supervisorial relationship, he’s liable for a lot more, he’s liable for selecting the obstetrician {speech error - referring to the midwife} he’s going to deal with, he’s responsible for making sure she or he has good practice, there is a lot more than just his giving bad advise, he’s got to know that when she delivers the baby or he delivers the baby its going to be a reasonably good delivery.

Shelly: Well, so clearly, its a barrier, being a supervisor is a barrier to me as an obstetrician who backs up midwives, as opposed to a consultant. I want to know why that’s happened because if we want to implement the law then we need to have obstetricians that are willing to back up midwives but that will never, obviously that’s not going to happen...

Joan Hall: From the medical association perspective the physicians of the association agreed to --?-- the bill they --?-- the only way they could work was in a supervisory capacity and not in a consulting capacity.

Judge Cologne: See that’s where we differ {referring to Joan Hall} we don’t always agree with each other.

Joan H: The same as with nurse midwives and the Association has had very positive experiences with nurse midwifery programs in fact we have even looked into how to could increase funding for those very programs and we want to have another way to have another practitioner out there who is, we believe, is clinically competent which is what the bill does but we also wanted and felt very strongly the supervisory relationship being very much a part of that...

Todd Gastaldo: {cross talk}

Joan H resumes: ...well sometimes we, as Gordon says, sometimes we disagree.

Todd G: but what a convenient disagreement because Vivian Dickerson, MD, the ACOG member said what you just said, that was the text of her report "We held out for physician supervision as opposed to a more consultative relationship", I think that was the word she used, "so as not to issue an invitation to home birth" She was explicit -- you’ve got to read that if you haven’t seen it. In other words I would like to see Judge Cologne and Dr. Joas, the board and the liability insurance carriers help the midwives and go back to the pre-May (93) CMA form of the bill which had consultative relationships.

Woman’s Voice ?Joan Hall): Right now this is not the time to argue about whether or not it should be supervision, that’s what is in the bill......

Dr. Joas: Why don’t you bring that up when the Senator (Killea) comes into the room, there is this fantastic, no seriously, it a fantastic ....

Todd G: ...with your support ?

Dr. Joas: I’m not suggesting that I’m going to support it...

Todd G: Well I suggest you do because it would help the matter...

Dr. Joas: Well, in time...

Maggie Bennett: The issue is supervision, not whether or not it should be. I do think the function of this board is to define terms, and we’ve spend a good deal of time defining terms and I do think that there is a little tiny bit of latitude that we could look at the word ‘supervision’. I absolutely agree we have to implement what the bill says but I think we can also look at the intention of the legislation, our own common sense and there is a least a little bit of latitude in the word supervision that we might take a look at what we mean by it...

Joan H: Would you be willing to provide us with what you mean by it? That would be very helpful.

Maggie B: yes....

Steve Keller: I had something that I wanted to wait till Dr. Joas got back. This is about the question of supervision. a concern I had that I wanted you to know about so you could take into account later. I don’t think the Legislature intended the board to adopt regulations with regard to supervision,..

Dr. Joas: Well, we have to define supervision...that what... before you go too crazy on supervision, my idea of supervision and your idea of supervision might be totally different.

Steve K: Yes, but I don’t think that they gave you the authority to do that and I wanted to invite one or two points to your attention. Under 2507, that defines the practice of midwifery. ‘A’ talks about the licensed practice of midwifery, the midwife is authorized to do certain things. ‘B’ says talks about the practice of midwifery, ‘E’ says a "A midwife is not authorized to practice medicine". Now, I think that the intention was to draw a very sharp distinction between the practice of midwifery on one hand and the practice of medicine on the other. In particular, a licensee under this chapter does not authorize the midwife to practice medicine.

Now take a look at sec. 2018 which is the general provision for authorizing legislation, and what that section does is it authorizes the Board to adopt regulations with respect to the practice of medicine, it doesn’t authorize the Board to adopt regulation with regard to the practice of midwifery.

Now I make two addition points; in sec. 2514.5 this board is specifically authorized to adopt some regulations with regard to midwifery and so the suggestion is that since there is no general authorization with regard to regulation and there is a specific one, that there is no general authorization. Now I would invite you compare this, for example, with the definition of nursing under section 2725. Now that talks about standardized procedures, and what it does is it authorizes the Medical Board through its division of Allied Health Professionals and the nursing board to jointly promulgate certain regulation with regard to standardized procedures but it specifically adds to that, the last line adds to that ‘Nothing in this section shall be construed to require approval of standards procedures by the Division of Allied Health Professions or the Medical Board or the BRN’.

Now that statute gives a specific authorization to promulgate regulations with regard to that relationship but it also says that those would be formal regulations only, it would not deal with the content of those regulations, that is those regulations or standardized procedures in matters like healthcare consideration, like what would constitute good treatment under those circumstances, what drugs and other forms of treatment, frequency of treatment when certain things are to happen.

Those under the nursing statute were left -- the nursing board wasn’t suppose to practice medicine and it wasn’t suppose to practice nursing, it is left to the doctor and the nurse to work out the appropriate practice under those circumstance. So that even where you have, in that case, specific authorization to promulgate some regulations, still the quality of care is not subject to --??---. Now the contrast that you have with the midwifery act that you have been dealing, with you have no authorization to promulgate regulations at all and my view on this is that those represent decisions about the practice of midwifery, how often you should see a patient, how intensively, how often other things should happen and the practice to be worked out with the doctor, the health care profession, the licensed midwife.

The licensed doctor who is supervising his or her practice are to make the decisions about certain things and it was not thought that the Medical Board would practice midwifery by promulgating a bunch of regulations to define the relationship -- how often, for example, one should see the patient, how often the doctor should review the chart and all those things that are set forth in great detail in the staff’s thing {--?--}. So I have these concerns when I was reading these things over and I wanted, in these few minutes we had before Senator Killea’s arrives, to bring these things up so we’d be able to address them at some future meeting. But I just don’t think that this legislative scheme ever intended this board to pass regulations with regard to the supervisory relationship between the doctor and the midwife.

Anita Scuri, JD: There are two kinds of statutory authority for adopting regulations. -------------??---------------. We have express authority which is -----?----- and with respect to -------??--------- and you also have implied authority, in other words it may not be expressed but the division may adopt regulations. It may not be in the law but it is implied in the law -------and I believe that it does exist. I understand your arguments but I think that it is an implied authority especially because of the particular way that act is written.

Judge Cologne: Isn’t it also true that the Medical Board has statutory authority to enact regulation under its supervision, under its authority? In general...

Anita S: But it is written very narrowly.

Judge Cologne:We were told at the hearings that they did have authority.

Anita S: They do have an expressed authority that allows then to adopt regulations {--- unable to transcribe remainder of sentence---.

Noise --- ??--- unintelligible comment

Steve K: Ms Scuri, the one comment I would make, I think you ought to take a look at that before the next meeting. The one comment I would make is that before you would apply an authority of any kind you should look at what you are trying to accomplish. Now if what you are trying to accomplish is to have this board practice midwifery or medicine I think you are getting in hot water.

Anita S: That was not my intention..

Steve K: No, I wasn’t suggesting that you said that, I was trying to give the benefit to the Board and the staff of my thinking on it. But, for example, if you take a look at these suggestions, some of the possible ones that they are putting out, a number of these things represent practicing midwifery.

Anita S: There are different ways for the regulations ---??---------.

Steve K: Also, --a number {of them} you have to be very careful with--- you couldn’t, on implied authority, pass any regulations inconsistent with the statute.

Anita S: That’s correct.

Steve K: And a number of these things are just flat out inconsistent with statute. For example, some of the suggestions were that the physician see the patient two times but you can’t make that consistent with the part of the statute that says supervision shall NOT mean the personal presence of the physician. You’ve got to be very careful when you start doing those things. You’ve got to be very careful of implied authority, you know, authority by implication, where you clearly do not have express authority and where in comparison with every other statute -- for example the nursing statute, where it does give express authority to adopt certain structural aspect of standards procedures but specifically says the content of that shall not be subject to Board approval. You have to be very careful of implied authority in this kind of a situation.

Anita S: { comments -- unable to transcribe}

Steve K: I never thought otherwise....

Dr. Joas: My feeling on that particularly is that if you basically add quality, number one, and consumer protection, now your trying to tie me up with legal interpretations. I have a problem handling that. Because it was my suggestion that a physician,... that this is not just from the state of California but its looking at the statutes other states where there is a requirement that a physician supervise or see a client, at least once and several states require twice and there is an implication in several states that the newborn be seen within 48 hours for example by a physician so that exists in other venues. Perhaps it doesn’t exist in your interpretation of the statutes but that’s my interpretation and wearing my medical hat on quality, I can say that would be good care. Wearing my consumer protection hat on the other side I would say that would be good consumer protection so those two for me anyhow {are a} match.

Steve K: Well I don’t want to tie you up in anything. But the real question is ‘Do you in your position want to practice midwifery and make these kinds of decisions’. I mean, in every other sphere, we leave questions that have to do with the quality of care to those people who are best trained to do those, the doctors, the dentists, the midwives, when you look at the educational requirement, I mean 3 years advanced training, the question is whether this Board when we finally end up at the top, whether this Board wants to impose on the people best qualified to make the decisions their own arbitrary review. That’s the real question.

Dr. Joas: I hear what your saying and if you are asking me if I volunteered, no I didn’t volunteer, I was drafted. {Laughter all around}

Steve K: But I’m not trying to impose anything on you.

Faith Gibson: I just have to mention again when you speak of consumer protection, that nurse-midwives are already attending home births in this state with an identical supervisory statute that doesn’t include a written agreement. I can’t do more than come back to it again and again, why does it have to be different for licensed midwives than it does for nurse-midwives? Speaking of compromising, it was quite a compromise for midwives to accept basically nurse-midwifery regulations on us as non-nurse midwives. We made that compromise and now you what you are saying is, now we are involved in a downward spiral where it just keeps getting {worse}, more and more barriers to practice are being erected with each one of these additional definitions.

Maggie B: Along those same lines, the three things that you mentioned right there, about our practice, my question is, are those things required of nurse midwives? .... ah, they are not, they are not. A nurse-midwife practices on her own responsibility, she consults with the physician as need be. She does not have to have the client seen by the physician nor does she have to send the baby in within 72 hours. Those are already NOT within the scope of practice of CNMs.

And again I would just like to come back to this thing about our responsibility to interpret this law to get us down the road. The ultimate goal here is to allow direct-entry midwives to practice safely and to give another options to mothers and babies. Its not, this law was not made to protect doctors. Now certainly we don’t want to cause trouble for doctors in the process, but that is not the reason for the legislation, it was to offer another option that’s safe and economically appropriate. And if we have to look at the word supervision and that’s our area of compromise to get us down the road, to re-evaluate the constitution, to re-evaluate that word supervision a little bit, I’m not saying throw it out or anything.

Remember what my opening statement was that I have come a long way in my personal thinking. OK, so I’m not as recalcitrant here as I once have been, so that I see an option again but I think that, again, in legislation or implementation it is horse trading, so that has to wind up at some point of time in a new bill.

Mr. Barnaby: Yes, Dr. Joas, I’d like to put in a few words for Judge Cologne’s position, even at the risk of having Senator Killea here when I state this once again.

Senator Killea: I’ve heard it before {laughter}

Mr. Barnaby: I don’t think there is anything inconstant with having a written agreement as a way of administering the supervisorial requirement that is in the law. I think is almost essential as a matter in fact. I think it is important that there isn’t an imputed or accidentally supervisorial relationship by virtue of a chance conversation between a physician and a midwife about a certain patient. It should be clear cut that a physician is willing to take on a supervisorial role that is required in the bill and to my mind that ought to be documented by date. I don’t want to get hung up on the word ‘contract’, I think that bothers some people. I think the word agreement might, maybe written understanding, but something that at least shows a meeting of the minds between the patient, the midwife and the physician, that everybody understands their respective roles. Plus I don’t see how the Medical Board can enforce and administer the program having been given the responsibilities to carry it out without some documentation someplace, that there is such a relationship, that it exists, that it was entered into on a certain date.

And as a mater of fact, you know the law requires briefing, it doesn’t say about what, but it seems to me there ought to be some basic documentation that flows back and forth. How about an initial physical and medical history, how about some information about a prior pregnancy, weight, diseases, of this client-patient, so that is an informed relationship that the physician is entering into and also that the midwife, everybody is on an equal level playing field. You know what the patient-client’s background is and you know what the potential risk is, what the care requirements are going to be. I think that those are just essential requirements that the medical board must have in place if its going to carry out its obligation to administer and enforce this law.

Joan Hall: Officially, just one comment. One thing that is different from this particular law is the ratio requirement and the question is how can the Medical Board ascertain that there is a relationship and the appropriate ratio that you are required to regulate without having some kinds of documents, or an agreement or some kind or a form like this that you can identify the supervising physician? How does the Medical Board respond to that particular charge without having something to look at and that is different from certified nurse midwives because the ratio requirement is not....

Dr. Joas: .....when I was in my Japanese mode that I would step back from and take a look at and when I came up with a solution these guy (the midwives) have shot it down but maybe that’s a compromise position.

Senator Killea: {laughter and cheerful chatter about her husband} I guess what concerns me a little bit is that this was all a very positive, this legislation was for very positive reasons, very, very positive reasons. And I didn’t know of midwives in my prior experience so this isn’t somebody I know or a friend or somebody putting pressure on me to do this, or this was somehow a special group or a piece of legislation, not at all. Frankly, I just am horrified at the infant deaths we have in this country and that’s what drove me to it. We’ve got to find some broader base for providing the kind of care that many women don’t get today. Now we are a long way from doing that even with the midwives’ bill but at least it would be a small step in that direction.

So when we start talking about what that relations is going to be between the doctor and the midwife, and I hear the insurance people saying that the doctor has to have this, and the doctor has to have that, it bothers me a bit because this is going to be some kind of arrangement between the doctor and the midwife. I know the insurance companies are important but I don’t think they should dictate what that arrangement is. Now if for some reason or another .... the threat is from the insurance companies that the doctors won’t get insurance if they do anything like this, well that is something else again and we have faced this in other areas before.

I guess my concern is that the path this is taking, is what kind of restrictions we need to put in this legislation, and I want to know what we need to do with it to make it work and work well and I know there has been an all day discussion and I’m coming in late, I know I don’t have the right to go over the whole thing and I don’t intend to. But I would very much like to see the Board, and I know, Dr. Joas and I had a conversation, he was kind enough to come by and see me in San Diego, and I know that they are honestly looking for a way to do this but I think when you say ‘quality’, your talking about two different things, it depends on who is saying quality, and when you say consumer protection, your talking about two different things and ....so those words by themselves, unless the people involved in this arrangement can bring that close together, they really don’t have much meaning.

So I think that ‘quality’ versus ‘consumer protection’ those are words that we in the political world toss around all the time and I think really what we need to do is have the parties involved -- the doctors and the midwives, try to come to some better understanding of where that partnership can be most effective in making these births happen safely and happily. So I guess that’s where {I am}, I know you have to have all this discussion about all the details but I hope you can keep that in mind, that what is the whole purpose of it is not to so how we can keep this from happening or what kind of regulations we can put in so that there is no danger ever to anybody -- living is dangerous -- and we certainly don’t mean to build into any kind of legislation, that was not the intent to build any kind of danger into it and I don’t think it does so I just want to make it clear it is not for some kind of crusade I’m on for the midwives. I’ve met some now and I like them but before I started this I didn’t. And its really because I think they have something to offer that our society needs very much today.

So that’s where I come from and I hope there is some room for compromise on this. And I do think there are some ways of coming at this, I’m a great believer in mediation and all of the different ways of doing that. I think Dr. Joas is trying to do that. Again, his years of training as a physicians are obviously effecting the way he looks at things, the way he sees quality and so on. But I think he is making a very honest effort, I know the midwives are and I just hope that out of it you can come up with something that will not mean that this will never happen. I didn’t go through all of this -- the thousands and thousands of dollars it cost -- to have it put aside by fruitless regulations and if that happens, I’m going to fight it latter on.

But for right now I’d love to see some kind of agreement that we can try for a couple of years and see if it works out. I don’t think there is any danger to anyone to make this work out.

Judge C: Senator, may I make a comment? You were here but I would like to assure you that the doctor-owned insurance companies are NOT trying to put a hurtle up. We have not ask for anything like that but we have asked that the doctor be informed of what his responsibilities are from a legal point of view and as Mr. Barnaby pointed out, the date and that both parties understand. We are not asking for details or that it be spelled out in that agreement but just so that everybody knows what their legal responsibility is from the beginning of the relationship.

Senator Killea: But the point is that if there is a written agreement, most doctors and maybe nearly all of them would be afraid to go into that and therefore, in effect, if you require a written agreement your saying that the doctors are not going to participate and that is NOT what I had in mind. It was trying to give the midwives who are doing what they do best, despite the fact they don’t have the enabling legislation, I was trying to give them that enabling legislation.

Judge C: Our only concern is what if there isn’t a written agreement, how do we know that one exists? You end up at the day of trial, the jury may have a different opinion as the doctors has, may have a different opinion as to what the nurse or the lay midwife thinks. Its just a simply memorandum of understanding signed by the parties so they all know that there was a supervisorial relationship.

Senator Killea: Every day thousands of times, in the medical field, in the health field, you have verbal agreements ... for getting things dome. If you had to write everything down, every time you had different people agreeing, I hate to think what the paper work would be like.

Judge Gordon C: Partnerships are always done or often done on a verbal agreement, a marriage is a verbal agreement and the responsibilities are tremendous with that relationship but here we’re talking about people’s lives and were talking about huge damages and how easy it is to resolve all of those issues with a simple statement saying ‘I am your supervisor and I will help you with your work’.

Senator Killea: But Gordon that doesn’t solve it, if it did I would say "Great, lets do it that way" but {cross talk from Judge Cologne --?--) that’s the problem.

Steve Keller: This will tell you just a little bit of what I’ve seen here. This is my first meeting. I think that this Board is genuinely interested in getting this legislation implemented and I think they understand the name of the game is ‘getting midwives out there and practicing as soon as possible’. Now sure there are going to be problems because we are dealing with years and years of backlog with history on it but I think everyone understands that we are turning a new page and I think that everyone here is basically acting in very good faith.

I have my own views on what the legislation authorizes to be done here and what it didn’t. My own view is that the legislation said what it wanted to be done and it was pretty specific in here in the statutes and we shouldn’t use the idea of implied regulations to create vast new bodies of regulations. I would note that there was a recent revision of the Administrative Procedures Act which took very great exception at the great expansion of regulation especially as they effect small business people and the consumer of small business concerns because we have had, in the past years, an unprecedented increase in these regulations. I think we all ought to keep that in mind. Lets keep these things simple, lets get to the point and lets remember that the goal here is to get midwives licensed as soon as possible.

Shannon Leahy: At the last meeting, they {referring to Judge Cologne & Mr. Barnaby}said point blank, they said that they would cancel any OB that backed up a midwife. Therefore any licensed midwife who is practicing, is practicing out of the hospital. At this time, at the time of this regulation, perhaps 3years, 4 years, 5 years down the road we will have licensed midwives in the hospital, and that would be great but now and in the near future, that’s not available. You have said point blank...

Judge C: Not me, not me! Shannon L: You did, yea you did...

General Remarks from several midwives present: -- "yes you did".

Judge C: Scout’s honor, I did not intend that. Mr. Barnaby and I represent about 90% or 95% of the professional liability carriers in California

Steward Hsieh: Your wrong because they weren’t here last meeting.

Shannon: I’m talking about the meeting in April, the last meeting in April. He was here..

Judge C: Let me tell you we will NOT cancel because they --?--. We may not insure for home deliveries but we will insure them for hospital deliveries and we will not cancel them simply because they sign up with a lay midwife. Now Mr. Barnaby can speak for the Doctors Company.

Mr. Barnaby: Well what the NorCal people have said, well maybe its semantics that issue, because what typically happens is any physician that purchases malpractice coverage typically there are exclusions. The company will cover and defend that physicians against any claim of accident or mistake or negligence but there are certain exclusions. A typical one is ‘We will not cover you Doctor, if you are practicing outside of your specialty’. Makes sense, right, everybody agrees with that -- why cover an Ob-Gyn for plastic surgery. I mean, that’s a typical kind of thing that promotes good medicine. There are a whole range of exclusions. And typically, in an Ob-Gyn’s coverage it says: ‘We will not cover you for a home birth except under emergency circumstances. That exists now, its existed for years and years and that’s how it is.

Now to go a little bit further, for those who want to utilize the services of a nurse midwife under existing law, there is usually a further condition, statement of conditions. We cover you so long as there is physician intervention IF any of the following situations occur and there is a 2 or 3 page list, maybe some of you are familiar what it says. But those are objective kinds of bench marks that it is the obligation of the physician to become involved with the patient’s care if any of those conditions pertain.

{end of tape two, side ‘b’, continued on Tape 3-a}

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