HB1288.DOC

SECTION 1. The legislature finds that the Hawaiian Islands have a culture and traditional heritage that includes midwifery care. Mothers have accessed midwifery care throughout history regardless of their religious, economic, or personal circumstances. As determined by Senate Concurrent Resolution No. 64, S.D.1 (1998), the subsequent sunrise audit report, Auditor's Report No. 99-14 (1999), and House Concurrent Resolution No. 65, H.D.1 (2016), the legislature finds that it is necessary to establish a regulatory process for certified professional midwives.

The purpose of this Act is to provide for licensure of certified professional midwives engaged in the practice of midwifery care by establishing licensure requirements and regulatory requirements.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

certified professional midwives

§ -1 Definitions. As used in this chapter:

"Certified professional midwife" means a person who is certified by the North American Registry of Midwives or any successor organization.

"Client" means a person under the care of a licensed midwife, as well as the person's fetus and newborn child.

"Department" means the department of commerce and consumer affairs.

"Director" means the director of commerce and consumer affairs.

"Licensed midwife" means an individual who holds a current license issued by the department pursuant to this chapter to engage in the practice of midwifery in Hawaii.

"Midwifery" means the provision of well-woman care, support, and education to healthy persons during the childbearing cycle including normal pregnancy, labor, childbirth, and the postpartum period with an emphasis on education, health promotion, shared responsibility, mutual participation in decision making, and working with each client and the client's family to identify their unique physical, social, cultural, and emotional needs.

"Midwifery Education Accreditation Council" means the organization established in 1991 and recognized by the United States Department of Education as an accrediting agency for midwifery education programs and institutions.

"Midwives Alliance of North America" means a professional organization representing out-of-hospital birth midwives.

"National Association of Certified Professional Midwives" means the membership organization that specifically represents certified professional midwives in the United States.

"North American Registry of Midwives" means the organization that sets standards for competency based certification for certified professional midwives.

"Out-of-hospital" means taking place in a birth center or home.

"Postpartum period" means the period not exceeding six weeks from the date of delivery.

"Practice of midwifery" means providing well-woman and maternity care for individuals and their newborns during the antepartum, intrapartum, and postpartum periods.

"United States Midwifery Education, Regulation, and Association" means a coalition comprised of representatives of the following national midwifery associations, credentialing bodies, and education accreditation bodies: Accreditation Commission for Midwifery Education, American College of Nurse Midwives, American Midwifery Certification Board, Midwifery Education Accreditation Council, Midwives Alliance of North America, National Association of Certified Professional Midwives, and North American Registry of Midwives.

§ -2 License required; validity and renewal. (a) Except as specifically provided in this chapter, no person shall engage in the practice of midwifery or use the title "licensed midwife" without a valid license issued pursuant to this chapter.

(b) Only a person who has a current, unencumbered license from the department to practice as a licensed midwife shall use the title "Licensed Midwife' or the abbreviation "L.M.". No other person shall assume the title "Licensed Midwife" or in any manner imply that the person is a licensed midwife except as defined in this chapter or use the abbreviation "L.M." or any other words, letter, sign, or device to indicate that the person using the same is a licensed midwife. Nothing in this section shall preclude a certified professional midwife who is not a licensed midwife and who is currently certified by a national certifying body recognized by the department from using another title designated by that certification.

(c) Any person who violates this section shall be subject to a fine of not more than $1,000 for each separate offense. Each day of violation shall constitute a separate offense. The director may initiate a civil action to collect the fine imposed under this section in accordance with rules adopted by the director.

§ -3 License; qualifications; validity and renewal. (a) A license to practice midwifery pursuant to this chapter shall be granted to an applicant who files a department-approved application for licensure, pays the required application fees, and provides evidence to the department of the following:

(1) Current certification as a certified professional midwife by the North American Registry of Midwives or a successor organization;

(2) Completion of an educational program or pathway accredited by the Midwifery Education Accreditation Council or having obtained the midwifery bridge certificate issued by the North American Registry of Midwives; and

(3) Successful completion of continuing education courses accredited by the Midwifery Education Accreditation Council as approved and required by the director.

(b) All licenses issued under this chapter shall be valid for two years from the date of issuance and shall be renewed upon the payment of a renewal fee within sixty days before the expiration of the license. Failure to renew a license shall result in forfeiture of that license. Licenses that have been forfeited may be restored within one year of the forfeiture date upon payment of renewal and restoration fees. Failure to restore a forfeited license within one year shall result in the automatic termination of the license. A person whose license has been terminated pursuant to this section shall be required to reapply for a new license as a new applicant.

§ -4 Fees. (a) Each applicant shall pay a licensing fee of $275 upon application for a new or renewal license. Fees collected pursuant to this section or by rule adopted under this section shall be non-refundable. Fees collected pursuant to this section or by rule adopted under this section shall be deposited into the compliance resolution fund established pursuant to section 26-9(o).

(b) The director may establish fees for the restoration of a license, penalty fees, and any other fees required for the administration of this chapter by rule pursuant to chapter 91.

§ -5 Grounds for refusal to renew, reinstate, or restore a license and for revocation, suspension, denial, or condition of a license. (a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate or restore or may deny, revoke, suspend, or condition in any manner, any license issued under this chapter for any one or more of the following:

(1) Failure to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;

(2) Engaging in false, fraudulent, or deceptive advertising or making untruthful statements;

(3) Engaging in the practice of midwifery as a licensed midwife while impaired by alcohol or drugs;

(4) Mental incompetence;

(5) Procuring a license through fraud, misrepresentation, or deceit;

(6) Professional misconduct, incompetence, gross negligence, or manifest incapacity in the practice of midwifery as a licensed midwife;

(7) Conduct or practice contrary to recognized standards of ethics for midwifery as a licensed midwife;

(8) Violation of any condition or limitation imposed by the director on a license to practice certified professional midwifery care;

(9) Failure to comply with, observe, or adhere to any law in a manner such that the director deems the applicant or holder to be an unfit or improper person to hold a license;

(10) Revocation, suspension, or other disciplinary action by another state or federal agency against a licensee or applicant for any reason provided by that jurisdiction's licensing laws or this section;

(11) Criminal conviction, whether by nolo contendere or otherwise, of a penal crime directly related to the qualifications, functions, or duties of the practice of midwifery by a licensed midwife;

(12) Failure to report in writing to the director any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days of the disciplinary decision;

(13) Submission to or filing with the director any notice, statement, or other document required under this chapter that is false or untrue or that contains any material misstatement of fact; or

(14) Violating this chapter, the applicable licensing laws, or any rule or order of the director.

(b) In any proceeding to discipline a licensee or for the suspension, limitation, or revocation of a license for the practice of midwifery, the licensee sought to be disciplined or whose license is sought to be suspended, limited, or revoked shall be given notice and opportunity for hearing in conformity with chapter 91. Any person whose application for a license has been denied shall be given notice and the opportunity for a hearing pursuant to chapter 91.

(c) The remedies or penalties provided by this chapter are cumulative and are in addition to the remedies or penalties available under all other laws of this State.

§ -6 Powers and duties. In addition to any other powers and duties authorized by law, the director shall:

(1) Receive applications for licensure;

(2) Determine the qualifications of persons applying for licensure;

(3) Grant licenses to qualified applicants;

(4) Establish procedures to renew, suspend, revoke, and reinstate licenses;

(5) Establish and collect fees for the examination of applicants for licensure and license renewal;

(6) Establish the minimum educational and continuing educational requirements for licensure;

(7) Investigate complaints against licensed midwives;

(8) Undertake, when appropriate, disciplinary hearings; and

(9) Subject to chapter 91, adopt, amend, or repeal rules, as necessary to effectuate this chapter.

§ -7 Advisory committee; appointment; term. (a) The director shall appoint an advisory committee to serve as experts to the department in licensing matters. The advisory committee shall consist of five voting members as follows:

(1) The director or the director's designee;

(2) Three licensed midwives who shall be in current and active practice in the State for the duration of their appointment and who shall have actively practiced as licensed midwives in the State for at least three years immediately preceding their appointment; provided that the initial members appointed pursuant to this paragraph shall be three certified professional midwives who each have at least three years of experience in the practice of midwifery and who are eligible to become licensed pursuant to this chapter; and

(3) One out-of-hospital birth consumer, who is either currently under midwifery care and planning an out-of-hospital birth or has had an out-of hospital birth in the past.

(b) Members of the committee shall serve four year terms.

(c) In the event of the death, resignation, or removal of any committee member before the expiration of the member's term, the vacancy shall be filled for the unexpired portion of the term in the same manner as the original appointment.

(d) The committee shall elect a chairperson from among its members. The committee shall meet at least annually to make recommendations to the director and may hold additional meetings at the call of the chairperson or at the written request of any two members of the committee. Three voting members shall constitute a quorum. The vote of the majority of members present at a meeting at which a quorum is present shall determine the action of the committee.

§ -8 Scope of practice; formulary. (a) The director shall establish scope of practice standards for the practice of midwifery.

(b) The scope of practice standards shall include:

(1) Adoption of a drug formulary recommended by the advisory committee and approved by the director; and

(2) Practice standards for antepartum, intrapartum, postpartum, and newborn care that prohibit a licensed midwife from providing care for a client with a history of disorders, diagnoses, conditions, or symptoms outside of the scope of practice recommended by the advisory committee and approved by the director pursuant to the standards of the National Association of Certified Professional Midwives.

(1) Shall not require a licensed midwife to practice under the supervision of another health care provider, except as a condition imposed as a result of discipline by the department;

(2) Shall not require a licensed midwife to enter into an agreement with another health care provider, except as a condition imposed as a result of discipline by the department;

(3) Shall not impose distance or time restrictions on where a licensed midwife may practice; and

(4) Shall not grant a licensed midwife prescriptive privileges outside of the privilege of ordering, obtaining, and administering medications on the approved formulary.

§ -9 Client protection. A licensed midwife shall not:

(1) Disregard a client's dignity or right to privacy as to the client's person, condition, possessions, or medical record;

(2) Breach any legal requirement of confidentiality with respect to a client, unless ordered by a court of law;

(3) Submit a birth certificate known by the licensed midwife to be false or fraudulent, or willfully make or file false or incomplete reports or records in the practice of midwifery;

(4) Fail to provide information sufficient to allow a client to give fully informed consent;

(5) Engage in the practice of midwifery while impaired because of the use of alcoholic beverages or drugs; or

(6) Violate any other standards of conduct as determined by the department.

§ -10 Disclosure; record keeping. (a) Before initiating care, a licensed midwife shall obtain a signed informed consent agreement from each client, acknowledging receipt, at minimum, of the current North American Registry of Midwives required Informed Disclosure for Midwifery Care.

(b) All licensed midwives shall maintain accurate and truthful records as a provider of maternity and birth services and shall maintain a record of signed informed consent agreements for each client. Licensed midwives shall maintain midwifery records in accordance with section 622-58.

§ -11 Exemptions. This chapter shall not apply to the following:

(1) Certified nurse midwives authorized by the board of nursing to practice in Hawaii, unless the certified nurse midwife chooses to become concurrently licensed under this chapter. Certified nurse midwives with concurrent licensure shall be subject to chapter 457, as well as this chapter;

(2) Student midwives in training under the direct supervision of licensed midwives as required by the North American Registry of Midwives;

(3) A person administering care to a spouse or parent;

(4) A person rendering aid in an emergency where no fee for the service is contemplated, charged, or received; or

(5) Other than as provided in paragraph (1), the practice of a profession by persons who are licensed, certified, or registered under other laws of this State and are performing services within their authorized scope of practice.

§ -12 Hearings. (a) Unless otherwise provided by law, in every case in which the department refuses to issue, renew, restore, or reinstate a license under this chapter, or proposes to take disciplinary action or other licensing sanctions against a licensee, the department shall conduct an administrative proceeding in accordance with chapter 91.

(b) In all proceedings before it, the department and each member thereof shall have the same powers respecting administering oaths, compelling the attendance of witnesses and the production of documentary evidence, and examining witnesses as are possessed by circuit courts. In case of disobedience by any person of any order of the department or of a member thereof, or of any subpoena issued by it or a member, or the refusal of any witness to testify to any matter regarding which the witness may be questioned lawfully, any circuit judge, on application by the department or a member thereof, shall compel obedience as in the case of disobedience of the requirements of a subpoena issued by a circuit court, or a refusal to testify therein.

§ -13 Penalties. Unless otherwise specified in this chapter, any fine or penalty imposed by the director after a hearing conducted pursuant to this chapter shall be no less than $100 and no more than $1,000 for the first violation.

§ -14 Immunity from vicarious liability. No licensed health care provider or facility providing medical care or treatment to a person due to an emergency arising during childbirth as a consequence of care received by a licensed midwife shall be held liable for any civil damages as a result of such medical care or treatment unless the damages result from the licensed health care provider or facility's provision of or failure to provide medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another. A physician who consults with a licensed midwife but who does not examine or treat a client of the midwife shall not be deemed to have created a physician-patient relationship with the client."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1288
TWENTY-NINTH LEGISLATURE, 2017
STATE OF HAWAII