An unlikely group spent countless hours last year exchanging emails and meeting over coffee, seeking common ground on an issue they believed would give mothers in Kentucky more choices about how to deliver their babies — while also better assuring the safety of both.
The midwife, the mother and the doctor involved in hashing out that compromise paved the way for a state bill licensing and regulating non-nurse midwives in Kentucky. Signed by the governor in March, the law will allow midwives to openly handle out-of-hospital births after years of working in the shadows.
In Oklahoma, where midwives are unregulated, untracked and largely unaccountable, at least seven state lawmakers from both parties expressed support for legislation regulating non-nurse midwives. Several legislators filed requests this month to author legislation for the session that kicks off in February. The deadline for introducing a bill is Jan. 16.
An investigation by the USA TODAY Network, formerly GateHouse Media, found seven babies died during or after attempted out-of-hospital deliveries overseen by midwives last year alone. The new legislation can’t come soon enough for those who want oversight of out-of-hospital births in Oklahoma.
“We continue to have bad outcomes, so I think the longer we wait, the more women and babies’ lives are at risk,” said John Stanley, an OBGYN and vice chairman of the Oklahoma Section of the American College of Obstetricians and Gynecologists. “It’s important to try to make some progress this year.”
Kentucky’s efforts may provide a road map for how to get there.
For decades, only Kentucky’s nurse midwives, most of whom work inside hospitals, were legally allowed to practice. Non-nurse midwives, who oversee the majority of out-of-hospital deliveries, have been unable to obtain licenses for years, effectively driving their practice underground.
“When I started trying to learn about what types of midwives there were in Kentucky and how to find a midwife, it was very confusing,” said Mary Kathryn DeLodder, a mother of four and leader of the Kentucky Home Birth Coalition. “You had to know the right people and know the secret handshake.”
The state’s new law is changing that by establishing criteria for licensure of non-nurse midwives and setting up a system in which the state’s Board of Nursing will establish rules and restrictions for practitioners. The law went into effect earlier this year, but the board has not yet begun licensing non-nurse midwives. Stakeholders are still in the process of drafting regulations, but best-case scenario projections indicate that process will be completed and licenses issued as early as June, DeLodder said.
The law also includes measures that will require midwives to report their outcomes and disclose to clients whether they carry malpractice insurance.
“It will allow people an easier way to locate a midwife,” said DeLodder, who was among those who worked to compromise with other stakeholders. “It will allow them to know who they are hiring — that this person has at least the proper credentials. It also provides accountability and some sort of consumer protection, in that consumers, if they feel they have had a bad experience, it gives them a formal way to have recourse.”
For the Oklahoma lawmakers looking to draft midwifery legislation, Kentucky’s new law wouldn’t be a bad place to start.
Until a decade ago, out-of-hospital deliveries accounted for just 0.8% of all U.S. births. Now that number is double.
More than a dozen states have passed laws in the past 10 years recognizing, licensing or regulating non-nurse midwives, who oversee the majority of out-of-hospital births. These midwives enter the field from midwifery schools or apprenticeships, and they rarely collaborate with physicians or hospitals.
In Oklahoma, out-of-hospital deliveries are increasing on pace with the rest of the country. But the USA TODAY Network found non-nurse midwives who oversee those deliveries are not investigated or disciplined by any state agency, even if deaths occur under their care.
“Women need to know what the true risk is of delivering at home,” said Stanley, the Oklahoma OBGYN. “We don’t really have good information on what the actual outcomes are.”
When Kentucky’s new law is implemented, midwives will be required to file annual reports and separately report newborn and maternal deaths within 30 days.
“If you have data that says we have a deficiency in this area, then you can go in and say what’s wrong and how do we fix it,” said Dr. Jeffrey Goldberg, legislative chair for the Kentucky Section of the American College of Obstetricians and Gynecologists who worked with DeLodder and others to pass legislation.
Kentucky will join other states with similar requirements.
In Florida, a law passed last year now requires midwives to report adverse out-of-hospital delivery outcomes and mandates that midwives provide a medical summary of events for every adverse incident.
Oregon goes so far as to require that all birth certificates include the planned attendant and place of birth. Other states require only the actual attendant and place of birth.
Dr. Amos Grunebaum of the Zucker School of Medicine at Hofstra/Northwell Health in Hempstead, New York, said it’s the best way to collect such data.
“Birth certificates in the United States should include where the original intent of delivery was,” Grunebaum said, “so that for the woman who delivers in a hospital after she was transferred from home, there is a data point where we know this is a bad outcome.”
Other countries have implemented such methods, said Saraswathi Vedam, a midwife who practices in both the U.S. and Canada.
“We have reliable systems of data collection in Canada,” said Vedam, who is also a professor of midwifery and principal investigator at the Birth Place Lab based out of the Division of Midwifery at the University of British Columbia. “There are a lot of claims of what’s safe and what’s unsafe (in the U.S.), but nobody really knows.”
Oklahoma lawmakers will also have to consider whether they will restrict the types of deliveries midwives can oversee.
Former state Sen. Ervin Yen, an Oklahoma City anesthesiologist, tried for two consecutive years to ban out-of-hospital breech deliveries, twin deliveries and vaginal births after cesarean sections (known as VBACs), all of which carry additional risks.
Midwives opposed Yen’s legislation, and he lost his bid for re-election in 2018.
Several midwives interviewed by USA TODAY for its October investigation said they would support legislation regulating their practice and establishing reporting requirements. But they would not comment on whether legislation should include restrictions on high-risk deliveries like those that Yen tried to ban.
In Kentucky, lawmakers chose to exclude restrictions in legislation. Instead, they will be established by the state’s Board of Nursing.
That’s also how restrictions are implemented in Arkansas, where the state’s Midwifery Advisory Board advises the Board of Health on regulations.
“We do have some organizational structure that provides a framework,” said William Greenfield, medical director for the Arkansas Health Department’s Family Health program. “For us, we have certain things in place to ensure that we are able to track and monitor certain activities.”
Under the board’s rules, Arkansas non-nurse midwives are banned from overseeing VBAC, breech or twin out-of-hospital deliveries.
Compare that with Oregon, where licensed midwives are not banned from overseeing such deliveries, but midwives who seek reimbursement from Medicaid cannot oversee VBAC, breech or twin deliveries, according to the state’s Health Evidence Review Commission.
In Kentucky, Goldberg said he would have preferred writing some restrictions into law but that midwives opposed it. So they left it up to the nursing board — with input from the Licensed Certified Professional Midwives Advisory Council — to decide what kinds of complications require that midwives refer patients to higher levels of care.
“We had several meetings where we would sit down and go through the proposed bill, and line by line, issue by issue, have a conversation about why we wanted (something) in or why we wanted it out,” Goldberg said. “We came up with some compromise, and we were able to edit the bill to something that was acceptable to all stakeholders.”
While only three states — Florida, Alabama and Indiana — require non-nurse midwives to carry malpractice insurance, it’s another issue Oklahoma legislators will need to consider.
Kentucky did not pass such a requirement, though its midwives must disclose whether they carry insurance.
The absence of a requirement makes it difficult for clients to sue midwives, even if they are at fault.
“If you’re delivering babies, your insurance needs to be on par with other individuals who deliver babies,” said Oklahoma malpractice attorney Kenyatta Bethea.
But in those states that do require that midwives carry malpractice insurance, the minimum amounts are far less than requirements for physicians, and in particular, OBGYNs.
In Florida, midwives are required to carry at least $100,000 per claim, or an annual aggregate of $300,000.
“I’ve never had an OB that had less than a million dollars in coverage,” Bethea said. “One hundred thousand isn’t enough to take care of a brain-damaged baby. Regardless of whether we’re talking about a baby that dies or a baby that survives with injuries, $100,000 is woefully insufficient.”
Kentucky isn’t the only example Oklahoma lawmakers might consider when drafting legislation.
The U.S. Midwifery Education, Regulation, and Association — a coalition of midwifery organizations — drew from international standards to create model legislation and regulation in 2015, addressing issues such as insurance, complaints and education requirements.
While Kentucky implemented some of the measures recommended by the coalition, other provisions differ from the coalition’s model. For example, non-nurse midwives will be overseen by the state nursing board, rather than by a midwifery-specific regulatory authority, as the coalition recommends.
Given Oklahoma’s failed attempts to pass legislation in previous years, the most important lesson from Kentucky’s success in passing midwifery legislation may be how midwives, doctors, legislators and mothers all came together.
Goldberg pointed to stakeholders’ respect for each other and their willingness to collaborate as the key to getting a law passed.
“If you look at the history of attempts to pass this type of legislation for multiple years and you ask, ‘What was different in 2019 that brought this about?”’ Goldberg said, “I would say that for the first time the stakeholders really sat down in a room in a small group and worked out compromise legislation.”