The Medical Association and a coalition of health organizations this week convinced a legislative committee with oversight of state board regulations to make changes to a dangerous proposed regulation by the newly-formed Alabama State Board of Midwifery. The Midwifery Board was established by law in 2017 to license non-nurse midwives.
The proposed regulation – if adopted by the legislative committee as it was proposed by the Midwifery Board – would have allowed non-nurse midwives to practice pediatrics and procure, store and use drugs, neither of which is allowed by state law. In addition to striking these two provisions from the ASBM’s proposed regulation, the legislative committee also added a requirement that, in the event a woman attempting to give birth at home with a non-nurse midwife transfers to a facility, the non-nurse midwife is required to accompany her client. As well, the legislative committee struck language in the Midwifery Board proposed regulation that would have limited the ASBM’s disciplinary “look back” period to only 18 months. No professional health licensure boards in Alabama have such a limited timeframe for “look back.”
The Medical Association and others in the health coalition had worked with the Midwifery Board for more than six months in an attempt to get the Board to voluntarily bring its proposed regulation into compliance with state law. While the Midwifery Board chose not to accede to the coalition’s requests, the Medical Association supports the changes made to the proposed regulation by the legislative committee this week as being in the best interest of both pregnant women and their babies.
The Midwifery Board meets next week to take up the revisions the legislative committee made to its proposed rule. At that meeting or before the Dec. 4 deadline, the Midwifery Board will have to decide whether to adopt the changes the legislative committee made to its proposed regulation or to start over with the rulemaking process.
The Medical Association joined with the Alabama Hospital Association, the Alabama Board of Nursing, the Alabama Department of Public Health and the Alabama Chapter-American Academy of Pediatrics recently offered comment to the Alabama Board of Midwifery’s proposed rules concerning the passage of Act No. 2017-282 in May 2017 (regarding licensed midwives). The Medical Association requested the Board withdraw the proposals at this time. Subsequently, the Medical Association attended a meeting of the Board on May 4, 2018, in which the Board took that advice and withdrew the rules to start the process anew.
Generally, the Medical Association commented that the proposed rules failed to properly follow the requirements under Act No. 2017-282 (the “Act”) and substantially failed to adequately protect the public. The Medical Association was successful when the Act passed the last day of the legislative session in May 2017, in requiring licensed midwives to use informed consent, maintain levels of liability insurance, and provide certain statistics annually. The proposed rules failed to provide a duty for the Board to enforce any of these requirements as well as enforce many other statutory requirements. In fact, the proposed rules failed to even provide a duty that the Board establishes the minimum levels of liability insurance, as specifically required under the Act.
Below are some of the items upon which the Medical Association commented:
- Under the proposed rules, a licensed midwife was to make a “reasonable effort” to contact a receiving health care professional or receiving institution in an emergency transfer. The Medical Association commented that a licensed midwife must make “every effort” to contact the institution. The Medical Association strongly objected to a licensed midwife simply calling 911 and washing his or her hands of the matter to effect a transfer.
- The Board proposed a rule that it would only look at conduct for licensed midwives in the previous 12 months in a complaint. The Medical Association commented that the Board should look to all conduct and that 12 months, considering a pregnancy is nine months, is grossly insufficient.
- The Board attempted in the proposed rules to create a formulary for prescription drugs when neither the Act nor any other law, allowed licensed midwives to use prescription drugs.
- Under the proposed rules, licensed midwives were attempting to provide certain care for newborns. The Medical Association pointed out that nowhere in Alabama law is licensed midwives authorized to provide newborn care. Instead, the Medical Association suggested licensed midwives stabilize and transfer any newborn needing medical care.
- The Board attempted to establish the name of the Act as the Childbirth Freedom Act when no such name was given.
- The proposed rules failed to follow the Alabama Administrative Procedures Act.
In other words, the Medical Association believed that substantial changes in the proposed rules were necessary and that they should be redrafted to follow the law and protect clients sufficiently. The Medical Association was successful in convincing the Board that withdrawal of the rules was appropriate at this time.