Freestanding birth center bill hits roadblock: Senate floor leader

3/10/23: This story has been updated. 

By Melissa Patrick

Kentucky Health News

Even though a Senate bill to remove the state's certificate of need requirements from freestanding birthing centers has passed out of the same committee twice, most recently in weaker form, and the House version of the bill has cleared a committee, the prospects of it becoming law have dimmed. 

Sen. Damon Thayer

Senate Majority Floor Leader Damon Thayer, R-Georgetown, said at the March 3 Licensing and Occupations Committee meeting that while he appreciated the sponsor's efforts to improve the bill, made at his request, bills regarding certificates of need for health-care facilities "are not moving forward this session." 

Thayer, who calls bills up for a vote on the Senate floor, said "It’s very likely that we’re going to have a task force or a working group or one or two committee meetings dedicated to the certificate of need issue this summer."

Senate Bill 67, sponsored by Sen. Shelley Funke Frommeyer, R-Alexandria, cleared the Licensing and Occupations Committee on Feb. 21 on a 9-2 vote. On March 3, it was recommitted to the same committee, and on March 7 the panel approved an amended version of the bill by a vote of 7-3. 

The "no" votes came from Republican Sens. Amanda Mays Bledsoe of Lexington, Chris McDaniel of Ryland Heights, and Thayer. Sen. Donald Douglas, R-Nicholasville, a physician, passed.

"The committee sub is good and it moves it in the right direction," Thayer said in explaining his vote. "But I think I would be disingenuous knowing that we're probably going to take a deep dive into this issue during the interim. . . . I'm going to vote no because I just don't think it's ready for prime time yet." 

The new version of the bill would only allow freestanding birthing centers that have four or fewer beds to be exempt from having a certificate of need.

"This truly is a concession to the Kentucky Hospital Association," Funke Frommeyer said.

Funke Frommeyer told Kentucky Health News that the changes to the bill that were suggested after it passed the first committee "came straight from the KHA," even though "not once did they reach out to me to talk through their concerns before I brought the bill to committee." 

Freestanding birthing centers only provide vaginal deliveries for women with low-risk pregnancies.  Funke Frommeyer told the committee that Kentucky is one of only eight states that do not offer freestanding birthing centers. 

When asked, Funke Frommeyer wouldn't say the bill was dead. However, she suggested an immediate way forward for freestanding birthing centers in Kentucky is for hospitals to open and run them, like the Vanderbilt model the KHA described in the committee. 

Thayer was not so optimistic when asked if there was any hope for the bill this session.

"It doesn't look good for this session," he said. "It just doesn't have the votes to pass the Senate and it's probably going to go into this entire certificate of need conversation we're going to have during the interim."

Senate Concurrent Resolution 165 to establish the CON Task Force was introduced in the Senate March 10, with 27 sponsors. The resolution calls for all findings and recommendations to be submitted to the Legislative Research Commission by Dec. 1, 2023. 

Kentucky hasn't had a freestanding birthing center since the 1980s, although it has administrative regulations for licensing them and qualifying them for Medicaid reimbursement.

The revisions also added that the Cabinet for Health and Family Services would delineate requirements for medical malpractice insurance for the freestanding birthing centers, refers to the centers as health facilities instead of institutions and adds some screening and reporting requirements. 

Proponents of the birthing centers say the greatest roadblock to these centers is the certificate-of-need law, which require a center to prove that there is an unmet need for services before it can open, which allows providers and hospitals to challenge the would-be competitor's application.   

Several hospital officials spoke against removing the requirement. KHA President Nancy Galvagni argued that the certificate-of-need process is necessary for the health and safety of patients. 

"The proposed legislation and the committee sub to remove freestanding birthing centers from CON would require a change in regulation, removing the requirement for oversight of the facility by an obstetrician with admitting privileges at a local hospital," Galvagni said.

She also noted that the bill does not require a written transfer agreement with a Kentucky hospital. "If a complication during birth arises, a quick transfer from the birthing center to the hospital is going to be critical to the health and life of the mother and child. And without those written transfer agreements in place, a complicated birth could easily lead to the death of the mother, the baby or both," she said. 

Thayer and Committee Chair John Schickel, R-Union, scolded the KHA for not bringing its issues to the committee during the interim between legislative sessions, when the issue was discussed. Galvagni said they did not testify because they thought their position on this bill was "very well known." 

House Bill 129, sponsored by Rep. Jason Nemes, R-Louisville, passed out of the Feb. 22 House Licensing, Occupations & Administrative Regulations Committee without dissent and two pass votes. It has received two of its three required readings but still awaits a vote in the full House.

Nemes told Kentucky Health News that even though the Senate bill had stalled, he was heartened by its movement forward this session, largely because it revealed the opponents objections, which will now allow them to address those concerns.  

"I still feel good about it because we got really long into the process," he said. "If we don't get this resolved this session, we're going to have a strong, strong push over the interim and try to get it done next session."