California Certified Nurse Midwives Independent Scope of Practice Clarified and Expanded

This will allow additional independence for CNMs in California beginning on January 1, 2021. (All statutory references in this article are to the California Business and Professions Code.)

Senate Bill 1237 (SB 1237)

Existing Law Provides Some Independent Scope of Practice

Under existing law, in addition to the basic registered nurse scope of practice, CNMs have a supplementary scope of practice that includes care related to childbirth and family planning. This includes, under physician supervision, attending cases of normal childbirth and providing prenatal, intrapartum, and postpartum care, including family-planning care, for the mother, and immediate care for the newborn. When performing functions that are outside the CNM scope of practice and would otherwise be considered the practice of medicine, the CNM must function under “standardized procedures” that include the level of physician supervision required for the particular function. Standardized procedures are required for CNMs to furnish or order drugs or devices under current law.

New Law Expands and Clarifies Independent Scope, While Also Directing When Physician Involvement Required

Section 2746.5 of the Business and Professions Code now describes the CNM scope of practice in greater detail, including defining “low risk” pregnancies that a CNM may attend without physician supervision. This means there is a single fetus; there is a cephalic presentation at onset of labor; the gestational age of the fetus is greater than or equal to 37 weeks and zero days and less than or equal to 42 weeks and zero days at the time of delivery; labor is spontaneous or induced; and the patient has no preexisting disease or condition, whether arising out of the pregnancy or otherwise, that adversely affects the pregnancy and that the CNM is not qualified to independently address.

Section 2746.5 also authorizes the CNM to practice under circumstances that fall outside the scope of low risk, if they practice with a physician and through policies and protocols that delineate the parameters for consultation, collaboration, referral, and transfer of a patient’s care. The law also includes comprehensive requirements related to the transfer of care to a physician under certain circumstances and authorizes the CNM to attend pregnancy and childbirth in an out-of-hospital setting if consistent with the requirements of the statute.

Requirements for CNMs to perform episiotomies and repair lacerations of the perineum were also relaxed as a result of SB 1237, removing the requirement for protocols, as well as the requirement that these services be done only in limited settings. This means that as of January 1, 2021, CNMs will be able to perform episiotomies and repair lacerations of the perineum without protocols.

Changes to Law Governing CNM Ordering and Furnishing Drugs and Devices

SB 1237 also changed the requirements related to CNMs ordering or furnishing drugs and devices. First, in addition to the settings permitted in prior law, the new law specifies that CNMs may order or furnish drugs or devices in “out-of-hospital” settings, without limiting those settings to, for example, clinics or licensed birth centers. Second, the general requirement that furnishing and ordering be under physician supervision has been removed. Also, per Section 2746.51, nonscheduled drugs for services in the “low risk” scope of services described in Section 2746.5(a) will no longer need standardized procedures.

However, furnishing or ordering of drugs or devices for services that do not fall within the “low risk” scope of services specified in Section 2746.5(a), and Schedule IV or V controlled substances for any condition, must be in accordance with standardized procedures or protocols. Schedule II and III controlled substances under any circumstances must still be furnished or ordered in accordance with a patient-specific protocol approved by a physician, and Schedule II controlled substance protocols must still address the diagnosis of the illness, injury, or condition for which the Schedule II controlled substance is to be furnished.

Other Important Changes Within SB 1237

When the intended site of birth is not a hospital setting, SB 1237 adds substantial disclosure requirements, in oral and written form, to prospective patients as part of a patient care plan and as informed consent in relation to CNM practice and the fact that the CNM is not supervised by a physician. The CNM also is subject to self-reporting requirements for transfers and deaths related to out-of-hospital settings; these reports are made to the California Department of Public Health, which then will report on the data it collects to the California Legislature. Finally, CNMs have been added to the list of professionals subject to California’s prohibition against self-referrals.

Important Differences from the New Nurse Practitioner Law

This year was a busy one for expanding the scope of practice for advanced practice registered nurses in California. In AB 890, which we analyzed here, nurse practitioners have been granted a defined scope of practice for the first time in California. However, certain regulations from the Board of Registered Nursing seem to be required before an NP can practice under that expanded scope, and the roll-out of an independent scope of practice will take additional time. In contrast, the revised CNM laws are not dependent on new regulations, and the new scope of practice – and all the related obligations regarding informed consent and reporting – will therefore be effective January 1, 2021.

Another difference between AB 890 and SB 1237 is that AB 890 added NPs to the list of “licentiates” under Section 805, meaning peer review bodies will be required to report to the licensing agency certain actions taken against an NP’s membership, privileges, or employment. Under SB 1237 CNMs have not been added to the definition of licentiate under Section 805, and therefore peer review bodies will not have to report actions taken against CNMs.

As with any change in a scope of practice law, the affected professionals and those that supervise, privilege, or employ them should carefully review the details of the new requirements to ensure that they remain in compliance. Physicians and facilities that work closely with CNMs should evaluate whether their existing policies and protocols meet the new standards and adjust as necessary.