BG C.S.H.B. 2088 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.H.B. 2088 By: Cuellar 4-18-97 Committee Report (Substituted) BACKGROUND Each year, a number of women in Texas turn to lay midwives as their primary providers of childbirth services. This area of maternal health care remains virtually unregulated, however, placing the lives of women and their newborns at risk. There are also ambiguities in the current law in regard to testing requirements for midwives, the definition of normal pregnancy and infancy, state investigative authority and the administration of medication to prevent certain eye infections. PURPOSE C.S.H.B. 2088 redefines the term "midwifery" and replaces current definitions of "normal childbirth," "newborn care," and "postpartum care," with new terms and definitions; grants rulemaking authority for prescribing standards of practice, for disciplining midwives, and for establishing eligibility for reciprocity for initial documentation under the Act; specifies that certain rules adopted must include provisions relating to warnings provided for violations of the law or rules, agreed orders for additional education, recommendations or requirements for medical or psychological treatment and restrictions on the practice of a midwife; requires a midwife, at the time of initial documentation, to pass a comprehensive examination and deletes reference to providing evidence of passing a voluntary examination; requires the Midwifery Board to adopt a comprehensive examination for persons regulated under the Act; specifies steps a midwife must take in regard to medical consultation under certain circumstances; requires a midwife to administer a specific medication to newborns under certain circumstances; amends the current list of prohibited acts for consistency with definitions added by this Act; establishes grounds for disciplinary action; allows the Texas Department of Health, in conducting complaint investigations, to obtain relevant midwifery or medical records and to inspect a site at which a midwife provided services; authorizes the assessment of administrative penalties and sets forth related procedures; and amends the Texas Dangerous Drugs Act for consistency with this Act. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants rulemaking authority to the Texas Midwifery Board, subject to the approval of the Board of Health, in SECTION 4 (Sec. 8A, subsections (b), Texas Midwifery Act); Subsection (e) of Sec. 8A specifies requirements regarding those rules. Plus additional rulemaking authority is granted to the midwifery board in SECTION 16 (Sec. 18D) whereby existing rulemaking authority is extended to the new Subdivision (3). In SECTION 10 (Sec. 16(f), Texas Midwifery Act) midwifery board rulemaking is specifically referenced. Additionally, there is reference to rulemaking in SECTIONS 1, 12, 13 and 17 (Sec. 1(c) (1), Sec. 17(1), Sec. 17A(a), and Sec. 18E(a), Texas Midwifery Act). SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 1(c), Texas Midwifery Act, (Article 4512i, Vernon's Texas Civil Statutes) as follows: Subdivision (1) modifies the definition of "midwife" by referencing documentation and rules of the Midwifery Board and deletes reference to standards of the board. Subdivision (2) modifies the definition of "midwifery" to encompass the provision of necessary care and advice to women and the provision of normal newborn care. Subdivision (11) replaces the current definition of "normal childbirth" with a definition for "normal" as it applies to various stages of pregnancy and the postpartum period. Subdivision (12) replaces the current definition of "newborn care" with a definition for "newborn." Subdivision (13) replaces the current definition of "postpartum care" with a definition for "postpartum period." SECTION 2. Amends Section 3D(c), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by requiring the program coordinator and the chair of the Midwifery Board to notify the Board of Health when grounds for the removal of a Midwifery Board member exist; deletes language requiring the Board of Health to notify the Governor of such situations. SECTION 3. Amends Section 8, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by removing existing references to educational courses; clarifies that the Midwifery Board shall establish requirements for basic education and continuing education; and references a comprehensive examination which is proposed elsewhere in this Act. SECTION 4. Amends Section 8A, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) as follows: Subsection (b) replaces the term "identification" with "documentation;" requires the Midwifery Board, subject to the approval of the Board of Health, to adopt rules prescribing specific standards of practice; to adopt and implement substantive and procedural rules for the disciplining of midwives when necessary; and to adopt necessary rules for establishing eligibility for reciprocity for initial documentation under this Act. Makes conforming changes. Subsection (c) replaces the term "advice" with "recommendation" and clarifies the term "basic information and instructor manuals" by adding the word "midwifery." Subsection (e) is added to establish that the rules pertaining to discipline must include rules relating to warnings provided to midwives for violations of the law or rules, agreed orders for additional education, recommendations or requirements for medical or psychological treatment, including treatment related to substance abuse by midwives, and restrictions on the practice of a midwife. SECTION 5. Amends Section 9(a), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by revising the requirement that TDH provide instructor manuals and information manuals to state "to each documented midwife and to any other" person on request. SECTION 6. Amends Section 10(b), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by requiring evidence, at the time of initial documentation, that the person has passed the comprehensive midwifery examination proved by the Midwifery Board, and deleting current language about a voluntary examination. Makes nonsubstantive language changes. SECTION 7. Amends Section 11, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by requiring the Midwifery Board, with the approval of the Board of Health, to adopt a comprehensive midwifery examination for persons regulated under this Act. Makes conforming changes. SECTION 8. Amends Section 12, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by striking the word "educational" and specifying that requirements are "for documentation" within the existing provision relating to a documentation letter. SECTION 9. Amends Section 15, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by replacing the term "identified to practice midwifery" with "documented as midwives in this state" in regard to the roster TDH is required to maintain; replaces subsequent references to "identified" with "documented" and updates citation referencing the Government Code. SECTION 10. Amends Section 16(f), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by requiring a midwife, under specified circumstances, to encourage a client to seek medical care through consultation or referral, as specified in Midwifery Board rules; deletes existing language relating to "recognizing a sign or symptom" of a complication. SECTION 11. Amends the Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by adding Section 16A entitled "Prevention of Ophthalmia Neonatorum," to require a midwife who attends the birth of a child to administer prophylaxis, as specified, for the prevention of ophthalmia neonatorum, unless the newborn is immediately transferred to a hospital because of an emergency. SECTION 12. Amends Section 17, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by prohibiting a midwife from providing care in violation of Midwifery Board rules, except in emergency situations that pose an immediate threat to the life of the woman or newborn. Makes conforming changes. Deletes language regarding the prohibition of a midwife to use a title, abbreviation or designation implying that they are registered or certified; deletes a provision regarding assisting at a childbirth other than a normal one. Adds language to prohibit a midwife from using a false, misleading or deceptive advertising or identification statement, including holding oneself out to be a registered nurse, certified nurse midwife or licensed vocational nurse, and removes current language in reference to an exception as authorized by adopted rules and language referring to the use of nursing initials or other designations. SECTION 13. Amends the Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by adding Section 17A entitled "Grounds for Disciplinary Action; Refusal to Issue Letter of Documentation" to specify grounds under which the Board of Health, with the recommendation of the Midwifery Board, may discipline a midwife or refuse to issue a letter of documentation. Requires the Board of Health to inform the Midwifery Board of, and provide opportunities for input in each stage of a disciplinary proceeding, including administrative penalties. SECTION 14. Amends Section 18(a), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by replacing the term "midwife" with "person required to be documented under this Act" and deleting language relating to specific offenses under the Act. SECTION 15. Amends Section 18B(a), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by clarifying that the Midwifery Board can recommend that specific authorized officials can pursue civil action when necessary. Specifies that the civil action would be against a person who knowingly or intentionally practiced without proper documentation or in violation of an order of the Midwifery Board or while the person's documentation was suspended or revoked. SECTION 16. Amends Section 18D, Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by expanding the Midwifery Board's rulemaking authority over investigations of complaints to provide for the release of relevant midwifery or medical records to the Midwifery Board without the necessity of consent by the midwife's client. SECTION 17. Amends the Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes) by adding Section 18E, entitled "Administrative Penalty," allowing TDH to assess administrative penalties as specified; sets forth standard procedures and considerations related to the assessment of administrative penalties that TDH is required to follow. SECTION 18. Amends Section 483.001(13), Health & Safety Code (Dangerous Drugs), by referencing Section 16A of this Act in the current definition of "prescription," and referencing documented midwives in accordance with changes made in this Act. SECTION 19. Amends Section 483.041(c), Health & Safety Code (Dangerous Drugs), by exempting from existing restrictions on the possession of dangerous drugs a documented midwife who obtains oxygen for administration to a mother or newborn or who obtains a dangerous drug for the administration of prophylaxis to a newborn for the prevention of ophthalmia neonatorum. SECTION 20. Repeals Sections 10(e)-(i), Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes). SECTION 21. Effective date is September 1, 1997. SECTION 22. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE SECTION 1. Regarding Sec. 1(c) of the Texas Midwifery Act, the definition of "midwife" is modified in CSHB 2088, it was not addressed by the original bill; also the substitute bill further changes the definitions proposed for "midwifery" and "normal" in HB 2088. SECTION 2. CSHB 2088 adds a new section amending current language regarding grounds for removal from the Midwifery Board in Sec. 3D(c) of the Texas Midwifery Act. SECTION 3. The substitute adds a new section which amends language in Sec. 8 of the Texas Midwifery Act to clarify and expand the responsibilities of the midwifery board. SECTION 4. Modifications to Sec. 8A are addressed in this section of CSHB 2088. They had originally been placed in SECTION 2. The substitute bill further alters the changes made to subsection (b). In subdivision (1), the substitute bill replaces the term "identification" with "documentation." It renumbers new subdivision (5) as subdivision (3) and modifies the language to reflect definitions proposed within the substitute. The words "and implement" are added to subdivision (7). In subsection (c), the substitute bill replaces the term "advice" with "recommendation." Subsection (e) in CSHB 2088 replaces a citation which was incorrect in the original bill and then specifies the restrictions on practice to include practice limitation and the suspension, revocation and placement on probation of documentation. SECTION 5. A new section amending language referring to instructor manuals and information manuals in Sec. 9(a), has been added to the substitute bill SECTION 8. A new section amending Sec. 12 and language referring to the documentation letter has been added to the substitute bill. SECTION 9. The substitute bill has a new section amending Sec. 15. It conforms and updates references and language. SECTION 10. The substitute revises the language amending Sec. 16(f) to require a midwife to encourage a client to seek medical care if complications arise. Language from the original bill required a midwife to refer a client or newborn for medical care or consultation under certain circumstances. SECTION 12. CSHB 2088 revises the HB 2088's changes to Sec. 17. The substitute prohibits a midwife from providing care in violation of rules of the Midwifery Board except in emergency circumstances. The original bill prohibited the provision of care to a woman or newborn determined not to be normal, as was defined in the original bill. The substitute bill removes a prohibition, which was not deleted by the original bill, against using a title, abbreviation or any designation implying that the midwife is registered or certified. It also adds new language prohibiting the use of false, misleading or deceptive advertising or identification statements and deletes current language referring to registered nurses and licensed vocational nurses. SECTION 13. The substitute bill changes the original bill's new Sec. 17A to allow the Board of Health, with the recommendation of the Midwifery Board, to discipline or refuse to issue a letter of documentation to a midwife. (Originally, the bill permitted the Board of Health or the Midwifery Board to do so.) Also added is language requiring the Board of Health to inform the Midwifery Board of and provide opportunities for input into each stage of disciplinary proceedings. SECTION 14. The substitute bill newly amends Sec. 18(a) relating to offenses under the Act. SECTION 15. CSHB 2088 adds this section which amends current language regarding civil actions and specifying circumstances under which a person may be subject to a civil penalty in Sec. 18B(a). SECTION 16. The substitute modifies the original bill's amended Sec.18D by replacing reference to "department" with "Midwifery Board" and deleting the original bill's proposed subdivision (4) relating to a departmental inspection of a site where a midwife provided services. SECTION 19. This section which amends Section 483.041(c), Health and Safety Code was addressed in SECTION 12 of the original bill. The substitute adds language to the new subdivision (9) allowing a midwife to obtain oxygen for administration to a mother or newborn. SECTION 20. CSHB 2088 repeals Section 10(e)-(i) of the Texas Midwifery Act, which was not done in the original bill.