Denied: Legal Gray Zones And Unintended Consequences

Feb 27, 2016

Oregon midwives are licensed to deliver babies at home or at independent birth centers. The Oregon Health Plan covers midwifery services, so that low-income women can also have choices in childbirth.

But midwives say state health insurance is unfairly denying low-income women access to home birth, leading some women to deliver their babies with no medical assistance.

Midwife Amy Hendrickson works at Trillium Waterbirth Center in Grants Pass. The place looks like an upscale hotel: cream-colored walls, queen-sized beds, and enormous bath tubs. Delivering at a birth center like this is one option for low-income women covered by the Oregon Health Plan.

Sitting at her computer, Hendrickson is upset.

“I have a client that I’m writing a letter for right now who was denied because she entered care too late to provide good documentation of low risk.”

After five visits with this mom, Hendrickson says she’s healthy and low-risk. But a cross country move delayed her prenatal care. Now, this mom is planning an unassisted home birth.

“I had to put a line in there that it is my strong recommendation not to birth alone at home, without a skilled provider,” Hendrickson says. “I never thought I’d have to write that.”

 While it’s legal for a woman to have an unassisted birth in Oregon, it’s not considered safe.

“I believe she is being forced into that decision because they are not willing to cover her care,” Hendrickson says.

Deborah Gordon is a long-time family physician who has backed up homebirth midwives in Oregon and California. Gordon says staying out of hospital may be the best choice if a woman wants a natural birth.

“She’s much less likely to have unnecessary medical interventions if she has the birth at home.”

Gordon points out there is a very small increased relative risk of the baby dying during home birth. But she says low-risk women with competent birth attendants can actually be better off delivering outside the hospital. She says many hospitals don’t really understand how to support natural childbirth, and doctors sometimes cause medical problems for moms.

“Labor progresses better at home,” she says. “Labor doesn’t progress as well in the hospital. So that’s just asking for a complication right there.”

Just like other state-licensed health care providers, licensed midwives in Oregon have a legal scope of practice. It defines what they’re permitted to do. If a pregnant mom has a health problem that’s not within her midwife’s scope of practice, she’ll see a doctor instead.

The board that defines the midwives’ scope of practice is made up of midwives, a doctor, and a public member. Full disclosure: my husband has been the public member of this board.

During public testimony to the board last December in Salem, midwife Silke Akerson said that the state denial of insurance coverage for out of hospital birth is discriminatory:

“We know that low-income women are by and large not able to afford to pay for these births out of pocket,” she says. “It is in effect restriction of access to care.” 

Akerson is director of the non-profit Oregon Midwifery Council. She also told the Board that she believed these insurance denials violate federal Medicaid law that requires providers be paid for work done within their scope of practice.

Hermine Hayes-Klein agrees.

“Regulations that cover midwifery in the state of Oregon define the scope of practice for midwives and women should be able to make any choice that is legal under those regulations,” she says.

Hayes-Klein is a Portland attorney and founder of the non-profit Human Rights In Childbirth. Like Silke Akerson, Hayes-Klein believes that the state may be violating federal law:

“In particular, with the refusal to cover birth centers in offering these services that are within their legal scope of practice.”

The Oregon Health Authority refused repeated interview requests. In a written response, the authority said even though midwives are legally allowed to perform certain services, that doesn’t mean Medicaid has to pay for them. “Medicaid must assure appropriate administration of public funds and ensure the best possible outcomes for Medicaid clients.”

OHA also said that even if they grant a woman’s request for insurance, they can revoke coverage for an out-of-hospital birth at any time; during labor or even after the baby is born.

The cost of prenatal care and delivery at a birth center is a fraction of the cost of a hospital birth.  Midwife Amy Hendrickson says that’s not an appropriate use of public funds. 

“I haven’t had any one of the ones they denied after the fact that we could go, ‘Oh yeah, it’s a good thing they denied us, because, wow, weren’t they high risk!’”

The Oregon Health Authority doesn’t keep track of how many women who are denied coverage go on to deliver safely out of hospital. But, Hendrickson says, none of her clients denied insurance gave birth in a hospital. She felt an ethical obligation to help them, even though she often went unpaid.

Every mom, she says, had an out of hospital birth with no complications.

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