Free-standing birth centers would no longer be subject to 'competitor's veto' under bills awaiting votes in Senate and House

Sen. Shelley Funke Frommeyer

By Melissa Patrick

Kentucky Health News

Bills to exempt free-standing birth centers from Kentucky's certificate-of-need law have cleared committees in the House and Senare and are poised for floor votes, despite opposition from the chair of the House health committee and two legislators in the sponsor's home region of Northern Kentucky.

"It's still important to have hospitals that have great options for giving birth, but consumers are asking for more," Sen. Shelley Funke Frommeyer, R-Alexandria, told the Senate Licensing and Occupations Committee Feb. 21. "Consumers are asking for free-standing birthing centers. . . .  Kentucky is one of only eight states that does not offer free-standing birthing centers." 

Funke Frommeyer, a freshman senator, is the sponsor of Senate Bill 67 and veteran Rep. Jason Nemes, R-Louisville, is the sponsor of House Bill 129, the latest version of legislation he has sponsored in previous sessions. 

Mary Kathryn DeLodder, director of the Kentucky Birth Coalition, told the Senate committee that Kentucky hasn't had a freestanding birthing center since the late 1980s, although it has administrative regulations for licensing them and qualifying them for Medicaid reimbursement. 

But the state's certificate of need law requires a propsoed center to prove that there is an unmet need for its services before it can open, a process that allows providers and hospitals to challenge the would-be competitor's application. DeLodder said the CON law is sometimes called "the competitor's veto," adding, "It is not about safety, but it's about market share." 

Frontier Nursing University said in a letter of support for the bills that it did a feasibility study in 2018 of establishing a free-standing birth center on its campus in Versailles and found the CON law was "the major barrier. . . . The CON process has been lengthy and effective at the goal which appears to be to allow hospitals to block the development of FSBCs regardless of the benefits to the women of Kentucky." 

Christy Peterson, an advanced practice registered nurse and certified nurse midwife, explained to the Senate committee what a freestanding birthing center is: "A freestanding birth center is a health-care facility. It offers a home-like setting where families can receive maternity care and give birth with appropriate levels of intervention. These facilities are not hospitals and they do not perform C-sections or anesthesia. They provide evidence-based care using the midwifery model of care and use informed consent and shared decision-making. One of the key components of the birth center is continuous risk screening. . . . Not everyone is a candidate for birthing at a freestanding birth center. There are mothers who should be in the hospital setting, and so birth centers don't just take on anybody." 

She also pointed to studies that show that care in freestanding birth centers is "safe, cost-effective and leads to excellent outcomes." 

Meredith Strayhorn, a Campbell County resident and senior certified professional midwife student, told the committee that in 2022, 34% of Kentucky births resulted in Caesarean sections, ranking the state in the top 10 for the procedure. She said C-section births have "been associated with maternal mortality and severe maternal morbidities." 

She added, "Research shows that when low-risk women give birth within the midwifery model of care, there are lower rates of Caesarean. That's also decreasing the rates of repeat cesareans and the various complications that follow. This will also save thousands and thousands of dollars for the state."

Sen. Donald Douglas, R-Nicholasville, a physician, voted against the bill, saying, “I don’t see it as a competition issue; I see this as a patient-care issue." Douglas said he was not convinced that birth centers would result in the best care and improved health outcomes. 

The committee approved the bill by a vote of 9-2, with Sen. Chris McDaniel, R-Ryland Heights (Kenton County), casting the other "no" vote. Sen. Damon Thayer, R-Georgetown, said he voted "yes" to get it out of committee, but said Douglas's concerns should be noted. 

Rep. Jason Nemes

The next day, there were no dissenting votes as the House Licensing, Occupations & Administrative Regulations Committee approved Nemes's bill. Nemes told the committee that each year he has been presented the legislation it has been improved. 

"The touchstone for me has been safety," Nemes said. "We want to make sure that this is a safe environment for women to have their babies."

He said in Kentucky mothers can have babies in a hospital or at home, and he thinks many who are choosing home births would choose a birthing center if it were available, "which I believe are safer for those individuals." He noted that the American College of Obstetricians and Gynecologists supports free standing birth centers. 

The maternity mortality rate in Kentucky is "alarmingly high," especially among women of color, said Kazia Bryant, executive director of Mama to Mama, a Louisville nonprofit support group for mothers.

"The more and more that Black women and women of color learn about the climate and rate of maternal deaths that plague our community, the more and more we are searching for alternatives to birth our babies," she told the committee.

While no House committee member voted against the bill, Rep. Kim Moser, R-Taylor Mill, passed, along with Rep. Mike Clines, R-Alexandria.

Moser is chair of the House Health Services Committee. She agreed that Nemes had improved the legislation, but she noted her work as a neonatal intensive-care nurse and said, "I am concerned about safety." She asked if there was a geographic requirement for transfer agreements to hospitals, and was told that there is not one that is related to distance between the facilities. 

Nemes said he considers birth centers safe and secure because their licensing requirements are strict, women are making a choice to have their babies there, and the centers constantly screen their patients to make sure they have low-risk pregnancies.

Both bills would also require the state Cabinet for Health and Human Services to update and modernize its regulations, including requiring accreditation by the Commission for the Accreditation of Birth Centers, compliance with the American Association of Birth Centers standards, and consistent plans for transfer and safe transport to a hospital as needed.

If passed, the legislation would be called the Mary Carol Akers Birth Centers Act, after a certified nurse midwife who wanted to open a birthing center in Elizabethtown and was thwarted by the cabinet and the state Court of Appeals. She exhausted her resources and left the state, Birth Monopoly reports.