SC Bill H.3851 Threatens Birth Options
While this blog focuses on abortion, we occasionally address other life-related, birth-related, or freedom-related issues. The South Carolina legislature is considering a bill, H.3851, that would add burdensome regulation to birthing centers that provide midwife-assisted deliveries. Below is a legal analysis of this poorly-written bill that has the potential to shut down most independent birthing centers.
This freedom is of great concern to me personally, as our last three births have been attended by our midwife, Cynthia "Sandy" Glenn at Carolina WaterBirth, and we couldn't be happier with the level of care. This photo is of our midwife with our children.
The legal analysis below was provided to Sandy Glenn and is shared with her permission. If you live in SC, please read the analysis and contact your state legislators.
TO: Sandy Glenn, CPM, LM
FROM: Susan M. Jenkins
The Sanchez Law Firm, PC
DATE: April 7, 2015
SUBJECT: Analysis of H. 3851
Although H. 3851 differs in some respects from the draft bill I analyzed in February, it still contains several provisions that are of no benefit to South Carolina birth centers, and some provisions that I would consider harmful for birth centers. In general, the most significant problems are:
1. Accreditation will be required as a qualification for licensing for birth centers, but will not grant deemed status in terms of operations. That is, while you will have to be accredited or to have applied for accreditation in order to be licensed, you will also have to be inspected and comply with all DHEC's rules in order to operate your birth center. That means that you will incur a major financial burden of accreditation fees and costs without gaining any advantage in terms of dealing with DHEC. Accredited birth centers will not be relieved of any of the burdensome DHEC regulations or inspections.
2. No other facility, not even hospitals, surgi-centers, or nursing homes, all of which deal with sick or injured patients, is required to be accredited under SC law. This sends a message that birth centers alone, of all types of licensed facilities, are so dangerous that they must not only be licensed but also must answer to a private regulator, an accrediting body! That birth itself is more dangerous than open heart surgery or laser eye surgery or hospice care with dangerous drugs. Yet birth centers are the safest facilities, with clients who are NOT sick or injured at all, but perfectly healthy, who are experiencing a normal life function, not an
injury or disease.
3. The bill is poorly drafted, with many ambiguous and confusing provisions, including a definition of "licensed midwife" that differs from the definition in the licensed midwife rules.
4. Although the bill repeals some of the stricter provisions of the statute, it permits DHEC to retain those same exact provisions (including the requirement of the consulting physician coming to the birth center to authorize a transfer, that are already in effect. Nothing in this bill tells DHEC to change the regulations that are identical to the provisions of the statute that would be repealed by this bill. That allows DHEC to continue to enforce those rules.
5. The bill requires a physician to sign off on the birth center's policies and guidelines. No doctor will do that. No medical malpractice insurer will allow their covered doctors to do that.
6. The bill confuses the concepts of consultation, collaboration (which it calls "medical management") , and referral (transfers and transports to the consulting physician). The birth center's "on call consultant," when he/she is consulted, can either require "medical management" or a transfer. But sometimes consultation does not require either, but is sought simply to ask a question or check on something.
7. The term "medical management" is not defined in the bill. But the concept of medical management is outside the scope of practice of midwives and also outside the appropriate licensed scope of services of birth centers. The midwife's standard of care should not be supplanted by a medical model just because the midwife asked for a consult. This would, ironically, violate AABC standards and CABC indicators.
SECTION 1. Amends section 44-89-30 (definitions):
(1) "accreditation": this is a very confusing and ambiguous definition. Which "board"or "boards" is it talking about? Which "board" is it that "recognizes standards"? It does not make any sense. Read it out loud and you will realize that. Also, why reference the Board of Health and Environmental Control, rather than the Department? Does that Board have any expertise in accreditation, or even in birth centers, rather than DHEC itself?
(2) "Birth center". - this should be amended so that only facilities licensed as birth centers can call themselves birth or birthing centers, not hospital unit.
(5). "Consultant on-call physician" - this definition is a problem because it requires the consultant to have admitting privileges at a hospital within 45 miles of the birth center. This will permit hospitals to close down birth centers and/or avoid receiving transports by denying clinical privileges to consulting physicians. Hospitals WILL do this. It gives them a weapon for eliminating a competitor birth center. At present, birth centers may transport to any hospital, but this definition is part of a set of requirements in this bill that will limit birth centers to only transfer to the hospital where the consultant has admitting privileges, and that consultant will have to admit birth center transport patients in his/her name. This gives the local hospitals veto power over birth centers in their area. It also prevents birth centers from opening in areas of the state that lack hospitals. So, counties that are already underserved for maternity care will have even fewer facilities because no birth centers can open there either.
(8) "licensed midwife" - this definition requires LMs who work in birth centers to be CPMs, even though CPM is not required for LM license. Will this statute change the LM rules also? Ask Lesley if that is the intent, because there is no definition of LM in the midwifery law, only in rules. It will bar non-CPM LMs from working in birth centers.
(9) "national standards" - this calls for the "board" [BoardHEC] to "recognize" national standards. What knowledge of National Standards does the Board have?
SECTION 2. This section of the bill amends section 44-89-60 of the birth center law as follows:
(A)(1) This subsection repeals 4 specific requirements for DHEC to include in its rules. DHEC will no longer be required to enforce these as rules. However, it does not PROHIBIT DHEC from having such rules. It leaves it up to DHEC whether to still include these in the rules. Also, DHEC is specifically still required to "receive reports from, regulate, investigate, and inspects all birthing centers and records". DHEC will still have full power to promulgate rules, substantive and procedural.
(A)(2). this section requires new birth centers to include an application for accreditation along with its application for licensure, and it must prove that it is accredited within on year. Note that, despite have to be accredited, the birth center must ALSO "comply with the regulations." Being accredited will not relieve birth centers from also complying with all DHEC regulations.
(B) This new section requires all birth centers to be accredited in order to be licensed and in order to operate. However, it only provides "deemed status" for purposes of licensure, NOT for operations. Accredited birth centers must still "operate in accordance with all applicable statutes and regulations. So, what benefit is there to the birth center in getting accredited? It will still have all the burdens of DHEC regulations and inspection, it will now have to have its practice guidelines signed by a physician, and it will have all the extra expenses and fees of accreditation. !ironically, AABC's national standards and CABC's indicators do NOT require a physician to sign off on the center's practice guidelines, but accredited centers in SC will not be able to take advantage of that less restrictive standard, because they must also comply with this new law and all DHEC rules. So, this bill would enact the worst of both worlds, and none of the benefits.
In contrast, a new birth center law in New Mexico makes accreditation voluntary, but allows accredited birth centers to base RELICENSING on accredited status, meaning that only unaccredited centers would get inspected and have to satisfy the rules to get relicensed. SC should follow the NM example.
(C)(1). This section deals with the so-called "consultant on-call physician," who must "provide consultation regarding medical management". I have NO IDEA what that is supposed to mean. How can this physician consult on Medical management" when birth centers are not supposed to provide the medical standard of care? A birth center that provides the medical model rather than midwifery model,would be acting outside its licensed scope of services and would violate AABC's National Standards, and thus violate accreditation standards. So, it places accredited birth centers in an impossible position. This bill must define what is meant by medical management (inducing labor using pitocin or cytotec? Administering drugs or anesthesia? Using electronic fetal monitoring? Cutting episiotomies? Using forceps? Forcing Vaginal exams? Timing based on Friedman's curve? Forceps delivery?
How can LMs provide any of these in a birth center? Why even use this term?
This section also requires the consultant physician "to accept transfers of mothers and babies who require care outside of the scope of the birth center." This essentially means that all transfers of care must go through the consultant physician, and be admitted by the consultant, rather than directly to the hospital from the birth center. This is contrary to standard birth center practice, including AABC National Standards and CABC indicators, which allow transport to ant hospital so long as in accordance with the center's policies and procedures. Now, the consultant will also have to accept and admit all transfers, which will discourage nearly all physicians from acting as consultants. Even worse, the consultant must SIGN ("provide written approval of") the birth centers policies and procedures. Neither AABC nor CABC require this, but being accredited will not changed this requirement. This provision will kill birth centers in SC because no physician will do these things.
(D)(1) to (4) These subparagraphs, and the entire bill, for that matter, use the terms "guidelines," "policies," "procedures," or "practice guidelines" interchangeably without ever defining any of the terms or explaining which ones the consultant must pre-approve and sign. This is another sloppy, badly drafted, and, as a result, ambiguous aspect of this bill.
(E) This subsection also contains terms that raise warning signals. It speaks of "consultant on all physicians" in the plural, as if you are expected to have many, and it also requires the birth center to invite physicians and administrators to participate in these biannual meetings. It uses confusing terms, such as referring to hospitals as a "transferring facility," although the hospital is the RECEIVING facility. It invites the nearest competitors to get deeply involved in the details of running the birth center. Surgi centers and nursing homes transfer to hospitals but do not have to comply with anything like these restrictive anticompetitive requirements.
(F) This subsection is a complete disaster, representing terrible policy choices as well as being poorly written. It is obviously intended to provide an exemption from vicarious liability for consultant physicians, but it doesn't. These are the problems with this subsection:
- it exempts the physician from liability for his/her OWN acts or omissions, AFTER the transfer, but does not exempt him or her from vicarious liability for the midwife's or birth center's acts or omissions.
- it is completely unheard of, inappropriate, and very poor policy to give the physician a complete exemption for what he or she does wrong. NO states do this. This is not how to write this types of exemption. Usually in these laws, you protect the physician from liability for any acts or omissions that occurred before the transfer, but hold him/her responsible for his/her own actions after accepting the patient. This provision is entirely too broad.
This provision also puts all the liability on the birth center, even for what the physician does. If the birth center doesn't have much insurance, the patient will have no recourse, even if the injury was 100% the physician's fault.
The other problem with this subsection is that it only protects the consultant physician, who gets off Scott-free, but not the hospital, not any other physicians or staff involved in post-transfer care. The state Trial Lawyers Association will freak out when they see this, and can be expected to oppose it. The hospitals, on the other hand, won't like being left out.
(G) This subsection requires birth centers to share confidential patient information with hospitals and physicians who may not ever have provided care for the patients whose records they will see. Again, there is no reason why birth centers should be considered so dangerous, such risky facilities that would justify extreme provisions such as these. No other facilities are forced to do things like this. What is so intrinsically less safe about birth centers - compared to facilities that provide major surgery, treatment of life-threatening illness, administration of dangerous drugs - that birth centers should have to go to these ridiculous extremes to maintain a license? No other state requires all these "protections."