HB 26-EXTEND CERT. DIRECT-ENTRY MIDWIVES BOARD  4:11:44 PM   CHAIR OLSON announced that the final order of business would be HOUSE BILL NO. 26, "An Act extending the termination date of the Board of Certified Direct-Entry Midwives; and providing for an effective date." 4:11:59 PM LAURA STIDOLPH, Staff, Representative Kurt Olson, Alaska State Legislature, on behalf of the prime sponsor, stated that HB 26 would extend the sunset date for the Board of Certified Direct- Entry Midwives to June 30, 2017. The Division of Legislative Audit conducts audits to determine if state boards and commissions should be reestablished. The division reviewed the activities of the Board of Certified Direct-Entry Midwives to determine if there is a demonstrated public need for the board's continued existence and whether it has been operating in an effective manner. She directed attention to a copy of the legislative audit in members' packets. The auditors recommended that the board be extended two years until June 30, 2017. MS. STIDOLPH explained that auditors found the Board of Certified Direct-Entry Midwives has been serving the public's interest by effectively licensing certified direct-entry midwives (CDM) and apprentices. In addition, it was found that the board continues to improve the profession by modifying and adopting midwifery regulations to conform to current standards of care. MS. STIDOLPH highlighted that the auditors had four findings and recommendations, including the Department of Commerce, Community & Economic Development (DCCED) should immediately pursue disciplinary sanctions for CDM cases when warranted; increase licensing fees to eliminate the board's operating deficit; that the board should communicate certificate requirements to continuing education providers to facilitate compliance with centralized licensing regulations; and the board should approve apprentice permit applications in accordance with statute. In response to a question, she reiterated the chair of Board of Certified Direct-Entry Midwives (CDM) is Cheryl Corrick. 4:15:15 PM REPRESENTATIVE JOSEPHSON referred to page 10 of the audit. He expressed concern about the failure of the certified direct- entry midwives (CDM) respondents to sign consent orders (CAs). He asked whether the committee should be concerned about anything in terms of the nature of the reason the CDMs wouldn't sign. He said he was concerned about this given that the legislature removed the statute and gave the board the liberty to create its own regulations. KRIS CURTIS, Legislative Auditor, Legislative Audit Division, Legislative Agencies and Offices, answered that the division doesn't see any correlation or cause and effect related to last legislature's Senate Bill 136, which moved the requirement for what the profession could do from statute to regulations to give the board more flexibility. At the end of an investigation if any problems are found and sanctions are necessary, investigators draft consent agreements and ask the respondents to voluntarily agree to the sanctions. If that does not occur, the investigators can use standard procedures to elevate the matter to the commissioner, file an accusation, and move forward with civil licensing action through the Office of Administrative Hearings (OAH). However, it is not uncommon for respondents to refuse to sign consent agreements, she said. 4:17:45 PM REPRESENTATIVE JOSEPHSON suggested that he felt less secure when the process changed. He read page 10, paragraph 2, as follows, "By not pursing licensing action, the respondents were allowed to continue practicing, and the public's safety was placed at risk." He went on to say that this referred to 4 of 52 providers, but he wanted to be sure a pattern wasn't developing that the legislature should be concerned about. MS. CURTIS answered that the audit period covered four years. There were 28 complaints filed and investigated, with all addressed timely except for these four cases. She reported that the four investigations involved two people and investigators concluded the disciplinary sanctions should occur, but were not pursued timely. She explained that two of the four cases were forwarded to the Department of Law's Office of Special Prosecutions and Appeals (OSPA) for criminal action. At the time of the audit the cases had been at OSPA for over a year without action. OSPA regarded these cases as the lowest priority due to the cases being classified as class B misdemeanors. She stated that due to turnover, the auditors were not able to determine why the investigators did not pursue a civil licensing action, which at a minimum, should have been pursued concurrently with criminal action to ensure the public safety is protected. Auditors characterized this as a fairly serious deficiency which is why the audit only recommend a two- year extension. She said it is unusual for the auditors to give such a short extension, but auditors felt it was important for the division to follow up on this matter to ensure that corrective action has been taken. 4:20:17 PM REPRESENTATIVE COLVER assumed these cases were not simple licensing actions, but were due to cases driven by mothers or families who experienced problems with the midwifes. He asked for further clarification on the cases without breaching anything that is confidential. MS. CURTIS answered that one or two of the consent agreements asked for voluntary license revocation, which would indicate severe problems were encountered. She recalled that another consent agreement asked for continuing education, which is a common outcome for an investigation. She declined to provide any details about the cases. 4:21:38 PM REPRESENTATIVE COLVER related his understanding that some direct-entry midwives practice at a birthing center and others assist with home births. He said that he and his wife used midwives with the birth of both of his children, and the births went very well. In their experience, the midwives were very professional. He asked whether the mother or child endangered by the procedures or care since, at some point, he has found that midwives are very clear to determine when the mother needs to go to a hospital. He thought it would be helpful for the committee to have a better understanding of what happened. MS. CURTIS responded that the audit does not comment on the profession as a whole, but does comment on investigative practices, which are in place to protect the public and to ensure quality of care. She said that the allegations were pretty serious and the auditors found the lack of timely disciplinary sanctions as fairly significant. In response to a question, she reiterated that there were four cases that involved two people. 4:23:30 PM REPRESENTATIVE KITO referred to page 10 of the audit and read, "A year after the cases were forwarded to OSPA, no action had been taken." He asked whether it was the board's responsibility or of OSPA. MS. CURTIS stated that board members were asking for and receiving updates on the investigations. Thus, there isn't anything in the auditor recommendations on the board not taking appropriate action. She stated that the board must recuse themselves since the board must weigh in later as an adjudicative entity. Therefore the board typically is not furnished details. The board was advised that the cases had been referred to the Department of Law. She described the typical process is that cases are referred to the Department of Law for review of sufficiency of evidence prior to an accusation being filed for civil licensing action. However, the cases were at OSPA, in an effort to pursue a criminal case. 4:25:05 PM REPRESENTATIVE TILTON referred to page 10, to recommendation 2 in the audit. She related her understanding that this board has a small number of people who pay a large licensing fee, but face a deficit. She acknowledged that she personally used midwives when she gave birth to her children, so her questions are not about care, but relate to the fiscal impact. Recommendation 2, which read, "DCBPL, in consultation with the board, should increase licensing fees to eliminate the board's operating deficit." She asked whether there is a plan for that action. MS. CURTIS answered that the license fees for certified direct- entry midwives have been a continual problem. In 2006, during the sunset review, the licensing fees were over $2,000 and they paid the highest fees of any occupation. Thus this issue is not new to the occupation. She directed attention to the table on page 15 that lists license fees. She stated that in fiscal year [FY] 10, the initial certification fee was $500. Fees were increased in FY 11 and again in FY 13, at which time fees were $1,450. However, the fees were not sufficient enough to cover increased costs, which were associated with regulation changes and investigative costs. As of March 2014, the number of licensees was 35, plus 13 apprentices. Thus to shoulder the cost for such a small group of licensees results in higher license fees. In terms of the future plan, the department would need to address how it plans to reduce the deficit. 4:27:15 PM CHAIR OLSON stated that the Legislative Budget and Audit Committee (LB&A) started a year ago to grapple with the issue. He recalled one board had $150,000 in legal costs and other boards have large numbers of licensees to spread out the costs. He explained the difficulty in establishing standards that can be applied to all of the boards. He said the LB&A committee and the division spent the interim working on these issues. 4:28:24 PM REPRESENTATIVE TILTON expressed thanks for the work the Legislative Budget & Audit (LB&A) and the division have done on this matter. 4:28:31 PM REPRESENTATIVE HUGHES asked for the typical extension time for boards. MS. CURTIS answered that the statutes provide a maximum extension of eight years. 4:28:57 PM REPRESENTATIVE HUGHES related her understanding that the auditors questioned why the board didn't pursue civil action simultaneously with the referral of cases to OSPA and that the board wasn't criticized because OSPA didn't take action. MS. CURTIS said she expected to see civil licensing action to be taken to be sure a negligent or incompetent practitioner isn't allowed to practice. REPRESENTATIVE HUGHES asked for further clarification on who would initiate the civil action. MS. CURTIS answered that it would be filed by the commissioner in conjunction with the board. The respondents are allowed to file a response to the accusation, and the Office of Administrative Hearings (OAH) has 120 days to conduct their hearings after which the board has time to make a decision. 4:30:17 PM CHAIR OLSON remarked that two years is short extension time. He recalled that the Alaska Bar Association was extended for three years in a row. MS. CURTIS replied that she did not specifically recall. 4:31:06 PM REPRESENTATIVE JOSEPHSON referred to the repeal of AS 08.65.140 since he was unsure of what fills that gap. He asked for further clarification on part of the statutes that at a minimum the regulations must require that the certified direct-entry midwife not knowingly deliver a woman with certain types of health conditions, prior history or complications as specified by the board. He suggested that the language was ambiguous. He asked for clarification that safeguards are in place before he could vote to extend the board. He said he was curious about the status of the regulations. He asked for an explanation since the legislature deferred to the board to make the rules. SARA CHAMBERS, Acting Director, Division of Corporations, Business, and Professional Licensing, Department of Commerce, Community, & Economic Development (DCCED), answered that the board has been conscientious in working to adopt its new regulations. The department has been working with the board to minimize the window between the statutory repeal and the effective date of new regulations. The Board of Certified Direct-Entry Midwives (CDM) met over the past two days. She related her understanding that the board planned to continue to work on regulations and if they adopted the regulations, the division would expedite the public comment within the next month. She said Ms. Corrick could provide more details but the board and division are very aware of the concern. 4:34:12 PM CHAIR OLSON pointed out that Representative Josephson participated this summer during the Legislative Budget and Audit Committee hearings on the board issues. 4:34:51 PM REPRESENTATIVE JOSEPHSON asked about the status of the regulations. He further asked what part of the prohibited statutes that was particularly unfair that the board wanted the authority over regulations for prohibited actions. CHERYL CORRICK, Chair, Board of Certified Direct-Entry Midwives (CDM), Department of Commerce, Community & Economic Development (DCCED), replied she serves as one of two midwifes on the board that also includes a certified nurse midwife and a physician who practices in obstetrics/gynecology. She said the board felt the prohibitions were somewhat out of date, particularly since they had not been addressed in over 20 years. She reported that the board just finished its regulations project today that will further guide midwives. Up until that point, the board has made it clear to practitioners through board actions that the old regulations still apply until the new ones were promulgated. 4:36:28 PM MS. CORRICK recalled one in terms of prohibitions for treating with women with gestational diabetes. The new regulation will allow midwives, in consultation with a physician, to manage a woman as long as she can be managed without medication, basically through diet and exercise, and can deliver the baby. Midwives can now co-manage the patients with the physician, but the physician will deliver the baby. REPRESENTATIVE JOSEPHSON related that she has provided enough information that gives him comfort and he appreciated her time. 4:38:35 PM CHAIR OLSON, after first determining no one wished to testify, closed public testimony on HB 26. 4:38:49 PM REPRESENTATIVE COLVER deferred to the Chair, but he wondered whether it might be possible to extend the board for three years. He expressed a concern that the legislature will have to revisit this again. CHAIR OLSON deferred to the legislative auditor on the extension time and said he completely trusts her judgment. He could not think of any time that he disagree with the auditor's judgment on extension times. 4:40:42 PM REPRESENTATIVE HUGHES commented that she personally has had wonderful experiences with midwifes and was grateful that the state has very competent midwives who provide wonderful services to families. She viewed the two-year extension for the board was more a reflection on the division and not the midwives as a profession. She commended the midwives who provide a very wholesome and wonderful experience delivering babies. CHAIR OLSON commented that most of the boards the committee will review request a four to eight year extension, but this represents an exception. He acknowledged the importance of protecting Alaskans. 4:42:11 PM REPRESENTATIVE COLVER echoed earlier comments that midwifery provides a valuable service that allow families to make choices. He emphasized the importance of allowing families to make choices, especially since this is their baby and their family. He offered his belief that it is important in medical care that government does not mandate women must to go to a hospital to have her baby. He stressed that it is up to the family to decide what works for them. He imagined that using a midwife also has an economic role since women can have their babies at home, which is especially important for the uninsured. He said that it is important to help families. He hoped that there won't be any complications that will cause an expensive birth, but again, it offers a means to deliver health care without an expensive trip to the hospital. He offered that this bill will accomplish a number of goals and objectives in our society. He said he is very supportive of the profession and he hoped the punitive issues would soon be resolved. 4:43:55 PM CHAIR OLSON remarked that boards are comprised of volunteers and most of the time things go well. The only time the legislature hears about it is when something goes wrong and in those instances often the whole profession is blamed. He commended the volunteers who serve on boards, stating his "hat goes off" to them. 4:44:44 PM REPRESENTATIVE HUGHES moved to report HB 26 out of committee with individual recommendations and the accompanying fiscal note. There being no objection, HB 26 was reported from the House Labor and Commerce Standing Committee.