American College of Domiciliary Midwives
PO Bx 60334, Palo Alto, CA 94303

List of 22 Enclosures submitted with oral and written testimony at
Public Hearing on MBC regulation 1379.21 -- Physician supervision,
including abstract of pertinent contents of each document

[1] Board of Registered Nursing, Filing Administrative Regulations/ OAL // repeal of sections 1464, page 9; endorsed June 17, 1985

Repeal Section 1464: Supervising Physician

(a) the supervising physician shall be a licensed physician with current training or practice in obstetrics
(b) the participating physician includes the supervising physician and his or her regularly designated alternative(s)
(c) the supervising relationship between the physician and the nurse midwife shall be formalized by a written agreement between the parties. the agreement shall include but not be limited to the following terms:

(1) Responsibility to each to the other
(2) Communication Arrangements
(3) Arrangements for alternate consultation when the physician may be unavailable
(4) Arrangements for a hospital referral and an alternate supervising physician accessible to the nurse-midwife’s area of practice. This agreement shall be in the possession of all parties an shall be available to the Board of Registered Nursing upon request.

[2] Letter 6/29/93 - Senator Killea to Member of the Senate RE: SB350 "RELATIONSHIP WITH DOCTOR - Replaces "consultative" with supervision language from the Certified Nurse-Midwife (CNM) statue".

[3] Fact Sheet 6/29/93 on Senate Bill 350 by Senator Killea:

"PHYSICIAN SUPERVISION: Requires midwives work under the supervision of a physician -- same arrangement required by law for certified nurse-midwives."

[4] Press Release 7/8/93 Senator Killea’s Office --MIDWIFE BILL PASSES SENATE

"SB350 provides the same scope of practice and physician back-up requirements for direct entry midwives as is currently required of certified nurse-midwives."

[5] Letter from Dr. Schumacker, MD, to Greg Gorges, Legal Counsel, DCA, dated 8/11/93, regarding his position as a member of the Division of Licensing, MBC on SB 350

"I understand that you will be meeting with members of Senator’s Killea’s staff on the 18th, and I am taking this opportunity to give you my suggestions for change to make this proposal more palatable. As you are aware, my objection to this legislation center around inadequate supervision, a lack of any mandated review process, ....and a failure to interface with the established systems of care.

Section 2507 should be modified to include language that ensures that the supervising physician:

1) has current training and practice in obstetrics
2) has current full obstetrical privileges (including Cesarean Section) in a hospital with a licensed obstetrical unit; and
3) signs a written contract with any licensed midwife under his/her supervision"

[6] Assembly Committee on Health, Burt Margolin Agenda, August 17, 1993

page 7: Item #9 "SUPERVISING PHYSICIAN. .... This bill does not require that the supervisory relationship be confirmed in writing or that protocols for patient case review be established."

Item #10: OPPOSITION. Opponents, including the California Association of Professional Liability Insurers, are concerned that the bill does not require written confirmation of the supervisory relationship of a physician to a licensed midwife. ....The opponents also are concerned that the bill does not require formalized protocols to ensure that midwives sufficiently consult with their supervising physician...

[7] OB-GYN NEWS, 9/15/93 -- quoted Dr. Vivian Dickerson, chairman of District IX (California) of the American College of Obstetricians and gynecologists, saying that ACOG "held out for a guarantee of supervision rather than a more collegial relationship, which was, we felt, an invitation to home births". The article goes on to say

"ACOG has been strongly opposed to home births for more than a dozen years. California, alone with Illinois [Ed note: New York added 1994], requires that certified nurse midwives be supervised by physicians, unlike more states which license "lay" or certified nurse-midwives. What this means, in practical terms, is that instead of the midwife being in charge and telephoning physicians for consults or referrals, the physician is ultimately responsible for the patent and "sets protocols in a formal (and most likely written) relationship

OB.Gyn.News quotes Dr. Milton Estees as saying: "Certain malpractice carriers won’t insure anyone who has anything to do with home births."

[8] SF Chronicle, p. A-15 - Oct 13, 1993

"State Senate Approves Non-Nurse Midwifery 28-5 vote on bill to allow licensing"

[9] Letter Senator Killea to Jackie Trestrail, MD, President, MBC, 11/3/93

" As you know, the bill does not require the Board to promulgate regulations except to update the educational requirements in four years to reflec5 the national standards of midwifery education.

Through negotiations with representatives of the California medical Association, (CMA), SB 350 provides an identical scope of practice and physician backup arrangements required by law for certified nurse-midwives (CNMs). ....SB 350 contains both laws and regulations already governing certified nurse-midwives.

The only opponents of the bill once the CMA went neutral were representatives of doctor-owned insurance companies. Those opponents repeatedly asked for amendments to require a written agreement between the supervising physician and the midwife. That agreement was defeated each time by committees in both houses (emphasis added)

A similar written agreement regulation was tried and failed on certified nurse-midwives when they were first legalized 20 years ago and was repealed in 1986 .[see encl #1]. Many CNMs could not find physicians willing to supervise them under the condition of a state-mandated written agreement.

I urge the Board when deliberating on any regulations proposed for SB 350 to honor the intent of the legislation, to respect the experience of certified nurse-midwives who have excellent records and statistics of quality care, and to avoid burdening direct entry midwives with regulations which have been tested and proved to discourage collaboration between physicians and midwives."

[10] State of California Memorandum from the DCA to all executive officers and bureau chiefs, dated 9/4/92, regarding a request by the Governor’s Trade Representative for each state agency to prepare a plan of implementation of the North American Free Trade Agreement.

1. Anti-competitive impact:

(a) Are any of your licensing or certification statues, regulations or procedures not based on objective and transparent criteria such as competence and the ability to provide the service?

(b) Are any of your licensing or certification statues, regulations or procedures more burdensome than necessary to ensure the quality of the service?

(c) Are any of you licensing or certification statues, regulations or procedures in themselves a restriction on the supply of the service?

[11] Federation of State Medical Boards, 1/11/94, letter from Dorothy Harwood says that "State medical board licensing standards are not pre-empted. NAFTA’s objective in relation to licensing is to prevent licensing requirements from being "unnecessary barriers to trade," stating that any state licensing requirements "not constitute a disguised restriction of the service? Requirements should be based on competence"

[12] Letter from Douglas Laue, Deputy Director, MBC, to Robert Del Junco, President, Division of Licensing, MBC, 2/2/94; subject: STATUS REPORT ON THE IMPLEMENTATION OF THE LICENSED MIDWIFERY ACT OF 1993

"the Board has undertaken a thorough analysis of the legislation.. this analysis was performed by board staff to determine if there are any obstacles to the implementation of the Act and what actions need to be taken by specific dates to meet the intent of the legislation.

The findings are as follows:[pertinent excerpts]

Requirements should be based on competence"

two pathways or methods for an applicant to qualify [sec. 1376.10, 1379.11]

two ways to graduate from an accredited midwife training program [?#]

Board must ... approve educational programs and out of state licensure [1379.2]

Board must approve the clinical experience and educational ...for the challenge provisions [?]

Board must develop regulations to set specific licensing fees [1379.50]

Board must specify Continuing Education requirements in regulations [proposed 1379.25, 26, 27, 28].

NOTE: NO statutory requirements regarding physician supervision is identified by Mr. Laue in his 2/2/94 analysis of the LMPA.

[13] MBC, DOL, Midwifery Licensing Program, Initial Statement of Reasons -- 2/28/94 for 1379.1 - 13765.3 and 1379.50

Subject Matter of proposed regulations, Problem addressed, Specific purpose of Regulations, Factual Basis, Underlying Date, Business Impact, Specific Technologies, Consideration of Alternatives

[This "Initial Statement of Reasons" by the MBC is missing for the proposed text of 1379.21]

[14] DISCUSSION PAPER / 3/3/94; Staff paper on Supervising Physician Definition Regarding: "Nurse-Midwife requirements:

The statute requires the same supervision requirements as stated in 2507 (a), (b), and (c) above.

The (Nursing) Board established regulation for "Supervising Physician" and for "Ratio of Nurse-Midwives to Physicians in 1979. Both of these regulations were repealed in 1985*. Per (Nursing) Board staff these regulations were no longer needed. [*emphasis added]

The (Nursing) Board does not have any guidelines on the role, responsibilities or relationship of the supervising physician. The (Nursing)Board assumes an accepted standard of practice*.[*emphasis added]

Questions that need to be considered in developing a definition:

What needs to be defined, if anything?

Why were the BRN regulations repealed and how does that relate to this program?

[15] Letter from Julianne D’Angelo, attorney for the Center for Public Interest Law, 6/24/94, regarding the proposed regulations for physician supervision. "...the Division of Licensing is not authorized to adopt a regulation requiring a written supervisory agreement between a supervising physician and a midwife".

SB 350 authorizes the Medical Board (through the Division of Licensing) to adopt regulations in specific areas:

(1) "equivalent" educational programs which satisfy ...[B&P Code 2512.5 (a) & 2512.5 (b);

(2) states with licensing standards that are equivalent to California’s under SB 350 [2512.5 (b);

(3) after January 1, 1998, it must adopt -- after notice and public hearing -- educational requirements which reflect national standards for the practice of midwifery and must update those regulations every two years [2514.5 (a);

(4) adopt written examination required for licensure [2514.5(a);

(5) approve specific educational programs and ... accrediting organization which must accredit those educational programs [2515]; and

(6) . establish areas in which continuing education courses must be taken [2518 (a)

From my brief reading of the bill nowhere does SB 350 (Killea) authorize the Medical Board or its Division of Licensing to impose a written supervisory agreement requirement on the practice of midwifery. "

[16] Letter from a homebirth consumer, Cameron Radke, receiving care from a midwife (dated 7/7/94) & documenting the refusal of an obstetrician to provide any medical services unless the expectant mother first agreed to stopped seeing her midwife:

"I requested an appointment with an Ob-Gyn in case I developed medical problems and had to go to the hospital. The receptionist told me that they could not see me, as their insurance forbid them to provide care to anyone seeing a midwife. I was told that I would have to stop receiving care from my midwife before they would agree to provide any medical services to me."

[17] Letter from the American College of Obstetrics and Gynecologists, by Vivian Dickerson, MD to Linda Whitney, MBC; dated 8/11/94

We strongly believe that any definition of supervision must include the following concepts:

1. Mutually agreed upon written medical guidelines/protocols for clinical practice which define the individual and shared responsibilities of the midwife and the obstetrician/gynecologist in the delivery of health care services.

2. Mutually agreed upon written medical guidelines/protocols for ongoing communication which provide for and define appropriate consultation between the midwife and the obstetrician/gynecologist in the delivery of health care services.

3. Informed consent to the patients about the involvement of the obstetrician/ gynecologist, midwife and other health care providers in the services offered and the physician/patient encounters are strongly encouraged.

4. Periodic and joint evaluation of services rendered, e.g. chart review, case review, patient evaluation and review of outcome statistics.

5. Periodic and joint review and updating of the written medical guidelines/protocols.

[18] Side-by-side comparison of Section 2507, LMPA as passed by the Legislature and proposed text of 1379.21 as submitted by the Medical Board of California

[19] Side-by-side comparison of the August 1993 letter from ACOG with the proposed text of 1379.21 by the MBC

[20] Minutes-MBC/DOL meeting, 11/03/94, A record of Senator Killea’s oral testimony before the Medical Board of California on 11/3/94, states that it violated her expressed legislative intent for the medical board to burden direct entry midwives with regulations which "have been tested and proved to discourage collaboration between physicians and midwives". This comment refers to nearly identical supervisory regulations (section 1464 and 1465) passed by the Board of Registered Nursing in 1974 and repealed in 1985. [1]

As recorded in the Minutes of the DOL 11/3/94 meeting, Senator Killea stated that:

... "the intent of this legislation is to provide affordable prenatal and delivery care... ...that in the legislative process, the representatives from California Medical Association (CMA) wanted an identical scope of practice (for direct-entry midwives) as were already defined for certified nurse midwives, which includes practicing under the supervision of a physician.

"The idea of a written agreement was rejected by the Legislature. It should be left up to the physician as any other relationship. This was testified to by a physician who is very active in utilizing midwives and finds that the idea of a written agreement would depend on the individual situation."

"The [malpractice] insurance companies can independently require written agreements, depending on circumstances.. So this should not be written into the regulations and it was not included in the actual bill that became law".

Senator Killea "asked the members to honor the work of the midwifery committee. Certified nurse midwives or licensed midwives working under the reasonable state guidelines should allow them to provide the equivalent high quality services...."

[21] Text of MBC 1379.21 Supervising Physician.

(a) For purposes of section 2507 of the code, a supervising physician and a licensed midwife shall:

(1) Communicate regarding care of pregnant women or newborns as needed and in accordance with the guidelines described below.

(2) review and the midwife shall at all times have, written practice guidelines that have been mutually agreed upon by the supervising physician and the midwife. The written practice guidelines shall:

(A) define the individual and shared responsibilities of the midwife and the physician, including but not limited to, a plan for communication, emergency transfer and transport of a client who develops complications and a plan for obtaining and documenting informed consent of the client regarding the involvement and responsibilities of the supervising physician;

(B) provide for and define appropriate communication between the midwife, the supervising physician and other healthcare providers; and

(C) require review and evaluation of cases and their outcomes at a set interval mutually agreed upon by the supervising physician and midwife.

(3) The supervising physician and midwife shall review and update the midwife’s written practice guidelines and discuss changes to the current practice of midwifery and obstetrics at a set interval mutually agreed upon by the supervising physician and midwife.

(b) A supervising physicians and midwife shall each retain in his or her files for a period of at least 7 years after termination of a supervisory relationship with a midwife, a copy of any written practice guidelines.

[22] Listing of all midwifery regulations passed or proposed by MBC to date

1379.1 Location of office

(B&P code sections 2018 and sections 2505 to 2521)

1379.2 Definitions of "Board" , "Code" & "Midwifery education program" (section 2018, 2505 to 2521)

1379.3 Delegation of functions -- Board delegates to executive director or his/her designee all functions necessary to the dispatch of business

(sections 2018 , 2505 to 2521)

1379.10 Application for Licensure as a Midwife

(section 2512)

1379.11 Review of Applications: Processing time

(section 2018 & 2508; Govt. Code section 15347

1379.15 Verification of Minimum Clinical Experience Required

(section 2513)

1379.20 Liability disclosure

(section 2508)

1379.21 Supervising Physician

(section 2507)

1379.22 Physician requirements

(section 2508)

1379.50 Licensing fees