In August 2014, the California BRN adopted an administrative law decision in the disciplinary hearing for CNMs Kavita Noble and Yelena Kolodji. The hearing addressed their home birth practices but the decision has implications for all CNMs. The full, adopted decision can be found here:
It is important to note that Kavita and Yelena’s hearing had nothing to do with negligence in clinical care; their clinical management of the client’s birth was found to be safe and within standard of care. Instead, the BRN was accusing them of two issues of great interest to all practicing CNMs in the state of California:
1) Nurse-midwifery practice without physician supervision
2) Practicing “medicine” without standardized procedures in place
The judge’s decision acknowledges that the term “physician supervision” is not defined and that regulation would suggest that supervision includes “consultation and collaboration;” nurse-midwives are also determined to be “responsible for attending to childbirths and determining the degree of collaboration with physicians, depending on the medical needs of the mother and infant and the practice setting.”
This aspect of the decision acknowledges and legitimizes the way CNMs have long practiced in California in the home setting. The judge and the BRN have specified that both Kavita and Yelena be allowed to continue home birth practice, acknowledging their exemplary midwifery careers.
Standardized Procedures and Home Birth Practice
However, the judge also declared that there are some situations that require a greater degree of physician involvement—in particular, those activities that could be considered the realm of medicine. Standardized Procedures are the accepted mechanism in California state law by which nurses may perform functions that overlap with medicine. Nurse-midwifery law specifically refers to the use of standardized procedures in the following instances:
Yelena and Kavita have been placed on probation for three years for this infraction; lacking standardized procedures. They are now working to clarify and meet the stringent requirements of probation, which will hopefully allow them to continue practicing in the home setting.
This aspect of the BRN's decision poses ongoing difficulties for CNMs practicing outside of a hospital setting.
Prescribing medications, episiotomies and repair of lacerations continue to be included as core competencies of basic nurse-midwifery education by the American College of Nurse-Midwives. Standardized Procedures are legally constructed as a general agreement of practices between the midwife, supervising physician, and administrative facility. Since there is no administrative facility in a home birth setting nor an individual supervising physician required to be in physical attendance at the setting, Yelena and Kavita adopted "Practice Protocols" in a good faith attempt to abide by the intent of Standardized Procedures. These were deemed insufficient by the judge.
Standardized Procedures do not mention home midwife practices (instead referring to “organized health care systems”), however the judge determined that because every woman in childbirth may require prescription medications or laceration repair, every midwife should have these standardized procedures in place for those instances. The judge found standardized procedures as both a mechanism for supervision, as well as a way to demarcate the practice of midwifery from the practice of medicine. “It is incumbent that [nurse-] midwives with home birth practices have standardized procedures in place that allow them to legally perform these functions. Without such a document on hand, a nurse-midwife practices in peril that she will be faced with the choice of either treating a patient in excess of her authority or not treating a patient until she has the legal authority to do so.” Kavita and Yelena are now tasked with creating such standardized procedures that shall be found in compliance with state law (describing a protocol of agreement between a collaborating physician and a midwife in the absence of a facility administrator)
It is important to note that the licensed midwives of California have the authority to administer Rhogam, Pitocin, misoprostil, methergine, erythromycin, vitamin K, oxygen, and injectable local anesthetic for suturing. The 2014 MBC Practice Guidelines for Licensed Midwives indicates that LMs only need to refer to physicians for “laceration requiring repair outside the scope of practice or practice policies of the individual licensed midwife.” The Medical Board does not require standardized procedures or supervision in these instances.
It is explicitly stated in the decision that the Board’s “prior investigative and disciplinary determinations are not controlling, unless the Board renders a final decision and designates it as precedent.” Thus there still remains no precedent set by the BRN regarding how to fulfill state regulations regarding Physician Supervision or Standardized Procedures. Whether or not, these two exemplary practitioners establish a clear path toward legally validating their practices, it is apparent that all CNMs practicing out of hospital settings continue to operate at great risk to their own licenses.
This case spotlights the importance of legislative and regulatory change to the NPA regarding physician supervision of CNMs as well as the need for the BRN to reestablish the Nurse Midwifery Advisory Committee to clarify complex concerns of nurse midwifery practice. These are two areas which CNMA is actively working to improve.
For more information on CNMs and Standardized Procedures: