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Lawmakers Give Initial Nod to Loosened Midwife Practice

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A legislative subcommittee has proposed a bill that would give certified nurse-midwives more liberty to practice without physician supervision. But there are still many lawmakers who object to changing the way things are at present.

By Rose Hoban

Last week, a house subcommittee formed to review midwifery practice recommended that North Carolina’s certified nurse midwives (CNMs) be given more flexibility to practice. The move is the first time a legislative subcommittee has recommended to allow advanced-practice nurses more leeway to work as they’re trained to, without having physician supervision.

Supporters of the measure said they expect physicians’ organizations will come out against the move.

“It’s a very important landmark decision of the committee that looked at this issue in detail,”  said Alex Miller, a lobbyist who represents the CNMs.

Miller said the subcommittee of the Joint Legislative Oversight Committee on Health and Human Services spent months hearing from experts on both sides of the issue, “really getting down in the weeds and into the data and coming back with these recommendations and with these findings. And the findings are pretty strong.”

The proposed bill that came out of the subcommittee includes a finding that current requirements for physician supervision of nurse-midwives place “unnecessary restrictions on CNM practice” and lead to nurse-midwives trained in North Carolina fleeing to other states. At its core, the bill recommends removing the requirement for written practice agreements between physicians and nurse-midwives.

It also stipulate that newly graduated CNMs would need to practice for 2,400 hours or 24 months under another’s supervision before being given the opportunity to practice independently.

But opposition to expanding nurse-midwife practice began to take shape as soon as the subcommittee report was presented to the full oversight committee this past week.

Supervisory language an obstacle

At present, CNMs in North Carolina need to contract with a physician to “supervise” them in order to practice midwifery. But as pointed out many times during the subcommittee process, that physician supervisor need not physically work with the CNM or even be present in the same county or region where the nurse-midwife works.

map of OB/GYN availability in NC

Data: Sheps Center for Health Services Research at UNC-Chapel Hill

Data from the American College of Nurse-Midwives shows 24 states and the District of Columbia have licensure agreements that allow CNMs to practice in “collaboration” with physicians; that is, without a contractual agreement. Most other states require some kind of contractual relationships with physicians, something doctors’ groups have fought to retain.

Without a contractual agreement between a CNM and a physician, a nurse-midwife is essentially unable to practice in North Carolina. In instances where doctors have withdrawn from supervisory agreements, nurse-midwives have ended up being unable to deliver babies, as occurred in the summer of 2012.

Physicians complain that supervising the nurse-midwives costs them extra in malpractice insurance and puts them at risk from so-called “vicarious liability,” making CNM supervision undesirable. Some physicians have claimed that the cost of extra malpractice coverage drove the decision to withdraw supervision of nurse-midwives.

The proposed statute would remove that vicarious liability and limit a physician’s exposure to medical malpractice litigation in cases in which a physician has to be called in to assist a nurse-midwife – in particular, in home births, which account for fewer than 1 percent of births in North Carolina.

UNC-Chapel Hill obstetrician John Thorp, who testified in favor of the nurse-midwives at a subcommittee hearing, told the committee that under the current supervision arrangement allowing for vicarious liability, physicians are more at risk of lawsuit than if the nurse-midwives were to practice independently.

He also told lawmakers that physicians and nurse-midwives “have always had a push-pull competitive relationship.”

After the meeting, Thorp said the problem isn’t with malpractice coverage or lawsuits, it’s with the fear of competition.

“It’s the fear of nurse anesthetists, nurse practitioners – that if they allow them to independently practice, that you’ve set the precedent to allow all sorts of advanced-practice nurses to independently practice,” he said.

Rural access to care

Currently, many of North Carolina’s 100 counties have no obstetrical provider (see map). Legislative staff found that in one western county, women had to drive 40 miles to find obstetrical care, and in one eastern county the distance is 50 miles. Often their babies are delivered by emergency-room physicians or family physicians without a specialty in women’s health.

“Who is providing the prenatal care?” asked Miller. “For these women, in too many cases the answer is no one.”

During one of the subcommittee meetings, Rebecca Bagley, head of the graduate midwifery program at East Carolina University, told of several students from rural counties who quit her program once they realized they’d have difficulty finding physician supervisors upon graduation.

Jessica Middlebrooks, a lobbyist for the North Carolina Obstetrical and Gynecological Society, disputed that nurse-midwives would have trouble finding physicians to practice with.

“There’s an interest for obstetricians to employ more nurse-midwives, if only we had names and information about who was looking for work,” she told the committee.

But nurse-midwife Jane Gledhill, who was at the same meeting, described petitioning more than 100 physicians and physician practices in an attempt to continue delivering babies after her supervisor withdrew from a contract with her.

“They were all noes,” Gledhill said. “I’m not finding physicians who will back up that statement.”

Lingering objections

As legislators debated the bill language, Sen. Jeff Tarte (R-Cornelius), who is married to a physician, raised a number of challenges. He objected to allowing CNMs to deal with preterm births and perform well-baby care and wanted to know whether nurse-midwives would be allowed to attend at home births, saying the practice made him “excruciatingly nervous.”

He suggested that families who ask for home births be required to waive all rights to sue nurse-midwives who perform home births and any physicians who are called upon to help in case of an emergency. And Tarte wanted collaboration agreements to be only between CNMs and obstetrician/gynecologists, not with another midwife.

In the end, few of Tarte’s objections made it into the bill. But when the bill was introduced into the full committee, other lawmakers raised issues.

“I’ve had a love-hate relationship with trial lawyers over my lifetime, and I think in this case they weren’t present, apparently, to attend to some of the needs around the protection of patients,” said Rep. Jim Fulghum (R-Raleigh), a back surgeon.

But Rep. Marilyn Avila (R-Raleigh), who serves on the subcommittee, said she felt the legislature would be better served by having physicians and midwives, “who have the greatest risk to their profession and their reputations, be the ones who drive how this change takes place.”

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