Next stop for birth center regulations: Alabama Legislative Council

The final step for controversial new rules on birth centers will be the Legislative Council.

Following a public comment period, the Alabama Department of Public Health Thursday approved the proposed rules, which will require birth centers to have oversight by a physician or medical director. The rules proposed would also require birth centers to be within 30 minutes of a hospital with OB-GYN services.

Midwives and birth center operators oppose the proposals, saying they will make it impossible for birth centers to operate in Alabama.

Othni Lathram, director of the Alabama Legislative Services Agency (LSA), wrote in an email Monday that “citizens have multiple opportunities to engage in the rulemaking process, both at the agency and [Legislative Council] level.”

Alabama Department of Public Health approves birth center regulations

Proposed rules must pass a body of lawmakers who vet proposed rules to ensure they have properly gone through the guidelines established by the Administrative Procedure Act (APA), which established the “basic minimum procedural requirements” by which an agency, board, or commission of the state may adopt administrative rules.

The APA also created the Legislative Council, a joint committee composed of 10 Alabama House of Representatives members, 10 Alabama Senate members, and the Lieutenant Governor as a nonvoting member. These lawmakers are the only chance midwives and advocates have of stopping the rules from going into effect.

Noel Leithart, chair of the Alabama State Board of Midwifery, said that she would have liked to see the full comments, as only a summary of 31 “formal comments” and ADPH’s response has been shared by the Department.

“We only got a summary of the comments and not the full copy of them, so they only got what [ADPH] feel was said,” Leithart said.

The department received at least 116 “general comments” from the public, mostly from people opposed to the proposed rules, and heard from over 70 people at the public hearing on July 13, all of whom opposed the rules.

Once public comments are collected, the agency’s leadership considers them before finalizing the rule. They can adopt the rule with or without changes based on the comments. If there are differing opinions during the comment period, the agency must explain in a short statement why they made their decision.

During the proposed rules final passage, State Health Officer Scott Harris said they made some changes to terminology and recommendations for getting a Pap smear to be more aligned with national standards.

Because the rules were not “more restrictive,” they could receive final adoption without another public comment period or without having to start the process over.

The last step in the rulemaking process is publication in the Alabama Administrative Monthly (AAM), which works as a bulletin board for changes in state rules. Agencies must tell LSA about any proposed changes for the AAM, as well as all final rules approved by agencies in the previous month, the last stage of the rulemaking process.

The AAM is published on the last business day of the month on the legislative website and lists all the rules that agencies want to add, change, or remove.

Rules become official 45 days after they’re mentioned in the AAM, but only if the Legislative Council doesn’t object during that time. The council can meet to discuss the rule, reject it, suggest changes, or not take any action. If they do nothing, the rule goes into effect after the 45-day waiting period.

Arrol Sheehan, public information officer for ADPH, said that the department submitted the rules to the council on Aug. 17. It is expected to be published in the September issue of the AAM. If legislators choose to do nothing, ADPH’s proposed rules will go into effect in mid-October.

If the Legislative Council feels that the rule might make it hard for companies to have fair competition, a concern many midwives and birth center operators have, they need to certify that the rule was not made to reduce competition.

The agency would have to give the Legislative Council a document explaining their reasons for the rule, any public meeting details, and other information they used to make the rule. Once the council gets this info, the chair can call a meeting to determine if “determine whether the rule may significantly lessen competition, and if so, whether it was made pursuant to a clearly articulated state policy to displace competition,” according to the APA law.

Midwifery grows in Alabama amid maternal health challenges

The Legislative Council can then approve, disapprove, disapprove with suggested changes or allow the agency to withdraw the rule for revision.

Kim Taylor, a midwife based in Birmingham, said that she’s already drafted her email over the weekend. She said that a list of lawmakers sitting on the council, their phone numbers and their emails was shared among those opposed to the rules.

“I have a whole list of everybody that I’m literally just gonna email every single [legislator],” Taylor said.

Kate Petty, a home birth mom and a member of the Alabama Birth Coalition, said that the organization is also planning on spreading the word on reaching out to the Executive Council and coming up with the idea, but she said that she the most optimist one.

“There’s also pending litigation, so maybe they’ll listen” she said.