Midwifery Practice and Education
Challenges and barriers to CNM/CM clinical practice generally fall into one of two categories: those created by restrictive state laws and regulations and those that, although they may have a regulatory component, can be considered related to the business of midwifery. This section of the paper describes major regulatory and business midwifery challenges.
Both the legislative authority granted to CNM/CMs to practice independently and where they practice varies considerably state to state. According to data compiled by ACNM on State Legislation and Regulatory Guidance (ACNM, n.d.), midwives that are not nurse-midwives are illegal in 10 states, 12 states have no laws or regulations about non-nurse-midwives, and 2 states prohibit CNMs from doing home births
Three major regulatory challenges exist within many states: (1) the requirement for either physician supervision or a written collaborative agreement with a physician; (2) the requirement for physician supervision of prescriptive authority even in the presence of otherwise independent practice, as well as the extent to which prescriptive authority is granted (e.g., the ability to prescribe controlled substances); and (3) legislation governing midwives and out-of-hospital birth.
Collaborative Agreements. These regulatory barriers hamper access to midwifery care in several ways. Hospital credentialing and/or admitting privileges may be denied if the CNM/CM cannot find a physician willing to sign a contractual agreement. Third-party reimbursement may also be denied without a contractual agreement, even if services clearly fall within the midwife's scope of practice. The requirement for a formal contract with a physician also creates an economic disadvantage for CNM/CMs, either because it can restrict the number of midwives "allowed" to practice with a particular physician or because it creates a potential barrier to the development of practice in a particular area (ACNM, 2013b). In many instances, because of this supervisory requirement, midwives are not considered members of a "profession" and therefore CNM/CMs are unable to open their own practices as Professional Limited Liability Corporations (PLLC). Such laws may cause midwives to leave a restrictive state and move elsewhere to work, potentially decreasing access to midwifery care in that state.
Prescriptive Authority. Prescriptive authority restrictions have long been problematic for midwives. Independent practice without the ability to independently prescribe is not independent practice. For example, in Michigan prescribing is the only midwife practice area requiring physician supervision or collaboration. However, the legal interpretation of this law has evolved into the opinion that if prescribing is supervised then perforce practice must be also. This barrier prevents the creation of practices especially where there is no physician willing to partner with a midwife. Unclear prescribing practices also results in patient – and pharmacy – confusion as to the prescriber and care provider, potentially resulting in a lack of provider accountability.
Legislated barriers require legislative change. While actively working for change is not an easy process, it can be particularly difficult for CNM/CMs due to their small numbers and demanding work schedules. Partnering with APRN groups has helped to move legislative change forward. Recently, in a number of states, APRNs and midwives have worked effectively together to remove, or at least lighten, restrictions. Currently, eighteen states have no restrictive regulatory requirement for written or formal physician involvement in midwifery practice, and more are working on this type of legislation (ACNM, n.d.). There may be other opportunities to partner with APRNs or other midwives to create legislation that removes barriers for all. Collaboration with grass roots organizations, for example, can be an incredibly powerful partnership.
Several events in recent years have spurred an unprecedented opportunity to address regulatory challenges. Support from the nursing profession has been described in the National Council of State Boards of Nursing (2008) Consensus Model for APRN Regulation: Licensure, Accreditation, Certification & Education that defines the categories of APRNs (including CNMs). This groundbreaking document provides model regulatory language that clearly calls for autonomous and independent practice by APRNs without supervision. Another key document, the Institute of Medicine's (2010) Future of Nursing: Leading Change, Advancing Health called for removal of barriers to APRN practice and for "the full extent of their education and training" (p.85). The passage of the Affordable Care Act has also been key in bringing attention to the need for increased access to care as well as the importance of removing APRN practice restrictions.
Midwifery and Out-of-hospital Birth. Between the professions of nursing and midwifery, an issue midwives uniquely face could be described as the "foot on each side of the regulatory fence." Direct-entry midwives practice legally and are licensed separately in many states. A few states license all midwives under a Board of Midwifery, but most CNMs practice under the Board of Nursing, while a couple of states designate the Board of Medicine, and a few states issue licensing under joint regulation. ACNM considers the best model to be a separate Board of Midwifery (ACNM, 2011b). Those wishing to enter the profession of midwifery will have to thoughtfully evaluate each state's needs and regulatory issues in considering where to practice.
Regulations are wide-ranging concerning out-of-hospital birth (OHB), defined as birth in free-standing birth centers or home birth. Birth center regulation exists in most states today; some are working on this legislation. States that do not regulate OHB face a considerable challenge. Under the Affordable Care Act, Medicaid is required to reimburse for OHB services; however, there is room for interpretation. Data compiled from 50 ACNM State Legislative and Regulatory Guidance sheets, reveals that a number of states actively discriminate against home birth and home birth care providers (ACNM, n.d.). A few states actively prohibit home birth care providers from practicing, whereas regulation in other states is either vague or absent entirely. Where there is no regulation, third-party reimbursement may be problematic. In addition, the frequent medical disparagement of those who choose to provide OHB services can result in erratic (at best) inter-provider communication and loss of continuity of care in the event of urgent transport to a medical facility.
Solutions to these pressing challenges include legalization, regulation, and professional recognition of all midwives as well as all OHBs. Currently, this will require state-by-state legislative changes. The presence of safety measures such as adequate criteria for OHB candidates may be accomplished through education of providers. A "safety-net" system of seamless and respectful consultation, referral, and transfer between care providers in a timely manner also requires education and opportunities to build trusting relationships between OHB providers and in-hospital providers. A key strategy is working collaboratively with other professional and consumer groups toward solutions that enable midwives to provide care within the full scope of their practice. ACNM is politically active and has a long track record of success at the national level, both in the federal legislative arena and working with other national and international nursing, midwifery and medical organizations. ACNM lends support for state efforts as well and CNM/CMs are encouraged to take advantage of the organization's abilities and resources if they wish to be involved in removing legislative barriers within their own states.
There are several barriers and challenges to the business of midwifery clinical practice that may result in decreased access to midwifery care by women and families. The major challenges presented here, along with possible solutions, include third party reimbursement, institutional rules and bylaws, liability, and the challenge of practicing true midwifery in the age of productivity demands and relative value unit (RVU) requirements.
Third Party Reimbursement. Midwives, indeed all APRNs, have struggled to become integrated into third party payors' reimbursement plans. The first to include nurse-midwives was Medicare in the mid-1980s followed by Medicaid at the state level. Blue Cross Blue Shield (BCBS) and private insurers followed suit, although sporadically. Currently, about two-thirds of U.S. states mandate private insurer reimbursement to midwives, at least to some extent. A major legislative victory occurred recently when the low rate (65%) of physician reimbursement by Medicare was resolved. In many states, however, Medicaid and BCBS continue to reimburse less than the physician fee, limiting the ability of midwives to offer care (ACNM, n.d.).
The second part of the reimbursement hurdle is related to the legal scope of practice in states including how the legal definition may be interpreted. If the service performed is not within the limits of the state's defined scope of midwifery practice, even if it is within the profession's definition of midwifery basic or expanded scope of practice, then the subsequent requirement to bill under a physician's name becomes a major practice barrier. If the midwife is not vigilant, the physician may receive credit for services performed by the midwife and be paid for those services instead of the midwife, resulting in lost revenue and a perception of decreased productivity by the midwife. These barriers can become so burdensome that midwifery services can no longer be offered to patients, who then must go elsewhere for the care needed – which the midwife was well able to perform.
Solutions to this reimbursement barrier frequently involve state level regulatory changes. The increase in reimbursement rate to 100% of the physician fee under Medicare may provide an opportunity to negotiate change in states where Medicaid is under-reimbursing. Creating access to corporate representatives in the form of practitioner/company liaison groups may also help get action within individual insurance companies. Michigan, for example, has had success through an APRN liaison with BCBS to work through issues such as adding reimbursement for midwife gynecologic services, as well as including midwives on the provider panels of auto company self-insured policies administered by BCBS.
Institutional Rules and Bylaws. The privileges of hospitals and medical systems may be regulated by the state, but more often institutions make their own rules in terms of who they allow to admit patients and which services the providers may perform. A few progressive states require that hospitals not discriminate against CNMs attaining hospital privileges. Conversely, several states limit admitting privileges to physicians. However, in most states there is no regulation concerning who may admit. Limiting CNM access can become a restraint of practice issue if individual hospitals create bylaws restricting admission privileges to physicians or require a collaborative agreement with a physician in order to admit clients in labor. Without creating new regulatory legislation mandating (or removing limits on) admitting privileges, this individual and local challenge will continue. The more midwives who are willing to challenge the status quo by applying for privileges and challenging restrictive bylaws, the sooner a change will be realized.
Liability. For a small practice, especially, one of the biggest out-of-pocket or overhead expenses is liability insurance. In many states, the insurance can be prohibitively expensive for all providing care during pregnancy and childbirth. This is why many small practices to choose to "go bare," that is, not carry insurance. Some states offer non-economic damage caps but for many others there are no such limits. It is definitely a challenge to consider when starting a midwifery practice, and the liability issue drives many midwives out of smaller practices and into larger group practices or medical system models of care. The solution is not clear in our current litigious society. Damage caps and other limitations in law, such as tort reform, may be a place to start. However, some states have ruled these solutions as unconstitutional. And "going bare" is not always the answer; a lawsuit can be devastating to all concerned in that situation.
Vicarious liability, illustrated by a physician expressing "I don't want to collaborate with a midwife because if I do, I become liable for his/her mistakes," can create barriers in spite of lack of evidence that the situation really occurs. Where there is an employer-employee relationship, and the employer provides the malpractice policy, that liability is part of the contract. In a collaborative agreement between two independent partners each insured separately, there is no evidence of a vicarious liability relationship (Booth, 2007). There is an opportunity for education in this scenario, but midwives will need to be very clear, bringing data to the argument, when countering such concerns.
Productivity: Preserving the Art in a Numbers World. The Hallmarks of Midwifery (King et. al, 2013) from the ACNM Core Competencies for Basic Midwifery (ACNM, 2012e) clearly guides the principles and manner by which midwives combine the art and science of the profession. A distinctive characteristic of midwifery is the "art" or skill; another hallmark stems from the name itself: "with woman." Midwives consider themselves partners with women to provide the care, treatment, and birth they desire. Ideally, they spend the necessary time, both in the office and at the birth site, to bring to fulfillment each family. Midwives guard against and watch for abnormalities and problems and take pride in judicious use of technology and the ability to combine technology with "the art of doing nothing well," that is, the ability to keep hands off and allow nature to take its course. The challenge to midwifery care comes from our increasingly frenetic "numbers" world with emphasis on the quantity of clients seen versus quality of care provided. Viewing patients in terms of RVUs and amount of dollars generated is counter to the essence of midwifery. However, midwives along with other members of the healthcare team must balance philosophical approach against the need to generate income to survive.
There is no right or easy answer for this challenge. A private practice midwife may have more control over the amount of time spent with a client and how many clients at a time he/she accepts into the practice; this person's income will be reflective of these preferences. However, midwives are finding that employers include productivity requirements in their contracts. The agreement may come in the form of a guaranteed base salary plus productivity bonus, or a group or individual-based productivity or RVU target beyond which bonuses may be expected, or even a purely productivity-based formula. The individual challenge to each practice and each midwife is to generate the income needed to survive and thrive while holding to core values of midwifery and nursing: woman- and family-centered care, empowerment of women as partners in healthcare, health promotion, disease prevention, and health education.
Clinical Midwifery Practice Challenges
Challenges and barriers to CNM/CM clinical practice generally fall into one of two categories: those created by restrictive state laws and regulations and those that, although they may have a regulatory component, can be considered related to the business of midwifery. This section of the paper describes major regulatory and business midwifery challenges.
Regulatory Barriers
Both the legislative authority granted to CNM/CMs to practice independently and where they practice varies considerably state to state. According to data compiled by ACNM on State Legislation and Regulatory Guidance (ACNM, n.d.), midwives that are not nurse-midwives are illegal in 10 states, 12 states have no laws or regulations about non-nurse-midwives, and 2 states prohibit CNMs from doing home births
Three major regulatory challenges exist within many states: (1) the requirement for either physician supervision or a written collaborative agreement with a physician; (2) the requirement for physician supervision of prescriptive authority even in the presence of otherwise independent practice, as well as the extent to which prescriptive authority is granted (e.g., the ability to prescribe controlled substances); and (3) legislation governing midwives and out-of-hospital birth.
Collaborative Agreements. These regulatory barriers hamper access to midwifery care in several ways. Hospital credentialing and/or admitting privileges may be denied if the CNM/CM cannot find a physician willing to sign a contractual agreement. Third-party reimbursement may also be denied without a contractual agreement, even if services clearly fall within the midwife's scope of practice. The requirement for a formal contract with a physician also creates an economic disadvantage for CNM/CMs, either because it can restrict the number of midwives "allowed" to practice with a particular physician or because it creates a potential barrier to the development of practice in a particular area (ACNM, 2013b). In many instances, because of this supervisory requirement, midwives are not considered members of a "profession" and therefore CNM/CMs are unable to open their own practices as Professional Limited Liability Corporations (PLLC). Such laws may cause midwives to leave a restrictive state and move elsewhere to work, potentially decreasing access to midwifery care in that state.
Prescriptive Authority. Prescriptive authority restrictions have long been problematic for midwives. Independent practice without the ability to independently prescribe is not independent practice. For example, in Michigan prescribing is the only midwife practice area requiring physician supervision or collaboration. However, the legal interpretation of this law has evolved into the opinion that if prescribing is supervised then perforce practice must be also. This barrier prevents the creation of practices especially where there is no physician willing to partner with a midwife. Unclear prescribing practices also results in patient – and pharmacy – confusion as to the prescriber and care provider, potentially resulting in a lack of provider accountability.
Legislated barriers require legislative change. While actively working for change is not an easy process, it can be particularly difficult for CNM/CMs due to their small numbers and demanding work schedules. Partnering with APRN groups has helped to move legislative change forward. Recently, in a number of states, APRNs and midwives have worked effectively together to remove, or at least lighten, restrictions. Currently, eighteen states have no restrictive regulatory requirement for written or formal physician involvement in midwifery practice, and more are working on this type of legislation (ACNM, n.d.). There may be other opportunities to partner with APRNs or other midwives to create legislation that removes barriers for all. Collaboration with grass roots organizations, for example, can be an incredibly powerful partnership.
Several events in recent years have spurred an unprecedented opportunity to address regulatory challenges. Support from the nursing profession has been described in the National Council of State Boards of Nursing (2008) Consensus Model for APRN Regulation: Licensure, Accreditation, Certification & Education that defines the categories of APRNs (including CNMs). This groundbreaking document provides model regulatory language that clearly calls for autonomous and independent practice by APRNs without supervision. Another key document, the Institute of Medicine's (2010) Future of Nursing: Leading Change, Advancing Health called for removal of barriers to APRN practice and for "the full extent of their education and training" (p.85). The passage of the Affordable Care Act has also been key in bringing attention to the need for increased access to care as well as the importance of removing APRN practice restrictions.
Midwifery and Out-of-hospital Birth. Between the professions of nursing and midwifery, an issue midwives uniquely face could be described as the "foot on each side of the regulatory fence." Direct-entry midwives practice legally and are licensed separately in many states. A few states license all midwives under a Board of Midwifery, but most CNMs practice under the Board of Nursing, while a couple of states designate the Board of Medicine, and a few states issue licensing under joint regulation. ACNM considers the best model to be a separate Board of Midwifery (ACNM, 2011b). Those wishing to enter the profession of midwifery will have to thoughtfully evaluate each state's needs and regulatory issues in considering where to practice.
Regulations are wide-ranging concerning out-of-hospital birth (OHB), defined as birth in free-standing birth centers or home birth. Birth center regulation exists in most states today; some are working on this legislation. States that do not regulate OHB face a considerable challenge. Under the Affordable Care Act, Medicaid is required to reimburse for OHB services; however, there is room for interpretation. Data compiled from 50 ACNM State Legislative and Regulatory Guidance sheets, reveals that a number of states actively discriminate against home birth and home birth care providers (ACNM, n.d.). A few states actively prohibit home birth care providers from practicing, whereas regulation in other states is either vague or absent entirely. Where there is no regulation, third-party reimbursement may be problematic. In addition, the frequent medical disparagement of those who choose to provide OHB services can result in erratic (at best) inter-provider communication and loss of continuity of care in the event of urgent transport to a medical facility.
Solutions to these pressing challenges include legalization, regulation, and professional recognition of all midwives as well as all OHBs. Currently, this will require state-by-state legislative changes. The presence of safety measures such as adequate criteria for OHB candidates may be accomplished through education of providers. A "safety-net" system of seamless and respectful consultation, referral, and transfer between care providers in a timely manner also requires education and opportunities to build trusting relationships between OHB providers and in-hospital providers. A key strategy is working collaboratively with other professional and consumer groups toward solutions that enable midwives to provide care within the full scope of their practice. ACNM is politically active and has a long track record of success at the national level, both in the federal legislative arena and working with other national and international nursing, midwifery and medical organizations. ACNM lends support for state efforts as well and CNM/CMs are encouraged to take advantage of the organization's abilities and resources if they wish to be involved in removing legislative barriers within their own states.
Business-related Barriers
There are several barriers and challenges to the business of midwifery clinical practice that may result in decreased access to midwifery care by women and families. The major challenges presented here, along with possible solutions, include third party reimbursement, institutional rules and bylaws, liability, and the challenge of practicing true midwifery in the age of productivity demands and relative value unit (RVU) requirements.
Third Party Reimbursement. Midwives, indeed all APRNs, have struggled to become integrated into third party payors' reimbursement plans. The first to include nurse-midwives was Medicare in the mid-1980s followed by Medicaid at the state level. Blue Cross Blue Shield (BCBS) and private insurers followed suit, although sporadically. Currently, about two-thirds of U.S. states mandate private insurer reimbursement to midwives, at least to some extent. A major legislative victory occurred recently when the low rate (65%) of physician reimbursement by Medicare was resolved. In many states, however, Medicaid and BCBS continue to reimburse less than the physician fee, limiting the ability of midwives to offer care (ACNM, n.d.).
The second part of the reimbursement hurdle is related to the legal scope of practice in states including how the legal definition may be interpreted. If the service performed is not within the limits of the state's defined scope of midwifery practice, even if it is within the profession's definition of midwifery basic or expanded scope of practice, then the subsequent requirement to bill under a physician's name becomes a major practice barrier. If the midwife is not vigilant, the physician may receive credit for services performed by the midwife and be paid for those services instead of the midwife, resulting in lost revenue and a perception of decreased productivity by the midwife. These barriers can become so burdensome that midwifery services can no longer be offered to patients, who then must go elsewhere for the care needed – which the midwife was well able to perform.
Solutions to this reimbursement barrier frequently involve state level regulatory changes. The increase in reimbursement rate to 100% of the physician fee under Medicare may provide an opportunity to negotiate change in states where Medicaid is under-reimbursing. Creating access to corporate representatives in the form of practitioner/company liaison groups may also help get action within individual insurance companies. Michigan, for example, has had success through an APRN liaison with BCBS to work through issues such as adding reimbursement for midwife gynecologic services, as well as including midwives on the provider panels of auto company self-insured policies administered by BCBS.
Institutional Rules and Bylaws. The privileges of hospitals and medical systems may be regulated by the state, but more often institutions make their own rules in terms of who they allow to admit patients and which services the providers may perform. A few progressive states require that hospitals not discriminate against CNMs attaining hospital privileges. Conversely, several states limit admitting privileges to physicians. However, in most states there is no regulation concerning who may admit. Limiting CNM access can become a restraint of practice issue if individual hospitals create bylaws restricting admission privileges to physicians or require a collaborative agreement with a physician in order to admit clients in labor. Without creating new regulatory legislation mandating (or removing limits on) admitting privileges, this individual and local challenge will continue. The more midwives who are willing to challenge the status quo by applying for privileges and challenging restrictive bylaws, the sooner a change will be realized.
Liability. For a small practice, especially, one of the biggest out-of-pocket or overhead expenses is liability insurance. In many states, the insurance can be prohibitively expensive for all providing care during pregnancy and childbirth. This is why many small practices to choose to "go bare," that is, not carry insurance. Some states offer non-economic damage caps but for many others there are no such limits. It is definitely a challenge to consider when starting a midwifery practice, and the liability issue drives many midwives out of smaller practices and into larger group practices or medical system models of care. The solution is not clear in our current litigious society. Damage caps and other limitations in law, such as tort reform, may be a place to start. However, some states have ruled these solutions as unconstitutional. And "going bare" is not always the answer; a lawsuit can be devastating to all concerned in that situation.
Vicarious liability, illustrated by a physician expressing "I don't want to collaborate with a midwife because if I do, I become liable for his/her mistakes," can create barriers in spite of lack of evidence that the situation really occurs. Where there is an employer-employee relationship, and the employer provides the malpractice policy, that liability is part of the contract. In a collaborative agreement between two independent partners each insured separately, there is no evidence of a vicarious liability relationship (Booth, 2007). There is an opportunity for education in this scenario, but midwives will need to be very clear, bringing data to the argument, when countering such concerns.
Productivity: Preserving the Art in a Numbers World. The Hallmarks of Midwifery (King et. al, 2013) from the ACNM Core Competencies for Basic Midwifery (ACNM, 2012e) clearly guides the principles and manner by which midwives combine the art and science of the profession. A distinctive characteristic of midwifery is the "art" or skill; another hallmark stems from the name itself: "with woman." Midwives consider themselves partners with women to provide the care, treatment, and birth they desire. Ideally, they spend the necessary time, both in the office and at the birth site, to bring to fulfillment each family. Midwives guard against and watch for abnormalities and problems and take pride in judicious use of technology and the ability to combine technology with "the art of doing nothing well," that is, the ability to keep hands off and allow nature to take its course. The challenge to midwifery care comes from our increasingly frenetic "numbers" world with emphasis on the quantity of clients seen versus quality of care provided. Viewing patients in terms of RVUs and amount of dollars generated is counter to the essence of midwifery. However, midwives along with other members of the healthcare team must balance philosophical approach against the need to generate income to survive.
There is no right or easy answer for this challenge. A private practice midwife may have more control over the amount of time spent with a client and how many clients at a time he/she accepts into the practice; this person's income will be reflective of these preferences. However, midwives are finding that employers include productivity requirements in their contracts. The agreement may come in the form of a guaranteed base salary plus productivity bonus, or a group or individual-based productivity or RVU target beyond which bonuses may be expected, or even a purely productivity-based formula. The individual challenge to each practice and each midwife is to generate the income needed to survive and thrive while holding to core values of midwifery and nursing: woman- and family-centered care, empowerment of women as partners in healthcare, health promotion, disease prevention, and health education.
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