Midwifery is a regulated by the Texas Department of Licensing and Regulation (“TDLR“). TDLR oversees the activity of a host of different licenses, ranging from podiatry to elevator inspectors. This has specific implications for midwives who are the subject of administrative penalties and sanctions. This is because the Texas Commission of Licensing and Regulation (the “Commission“), the group of individuals who make a final determination on a proposal for decision issued by an administrative law judge, is not made up of persons who practice midwifery. This is very different from actions brought by the Texas Medical Board or the Texas Board of Dental Examiners because while those boards are made of of licensees, the Commission is not.
Midwives Advisory Board
The Texas Occupations Code provides for the creation of the Midwives Advisory Board. However, unlike the Texas Medical Board and many other boards regulating licensed occupations, the Midwives Advisory Board has no express rule-making or enforcement power. It is strictly advisory in nature, providing “advice and recommendations to TDLR on technical matters relevant to the administration of the Texas Midwifery Act. The Midwives Advisory Board is made up fo nine members appointed by the presiding officer of the Commission. It includes five licensed midwife members (each of whom must have at least three years practice experience), one physician member who is certified by a professional organization that certifies obstetricians and gynecologists, one physician member who is certified in family practice or pediatrics, and two “public” members who are not trained in or practicing in the health care profession. The current members of the Midwives Advisory Board may be found on TDLR’s website, which also lists meeting agendas and videos.
TDLR’s Statutory Responsibilities
The executive director at TDLR is tasked with enforcing the Texas Midwifery Act. Through this delegation of power, TDLR is responsible for adopting standards for midwifery practice, education requirements, licensing standards, and setting fees. TDLR is also the body that adopts the comprehensive midwifery examination and jurisprudence examination.
Prohibited Practices and Grounds for Disciplinary Action
The Texas Midwifery Act sets out a number of acts that are grounds for disciplinary action against a licensee. For example the Texas Midwifery Act prohibit:
- providing midwifery care in violation of any Commission rule (except in emergency situations that pose an immediate threat to the life of a woman or newborn);
- administering a prescription drug to a client (with certain exceptions for prophylaxis, supervision by a licensed physician, and oxygen administered in accordance with Commission rules);
- using forceps or any surgical instrument for a procedure other than (i) cutting the umbilical cord or (ii) providing emergency first aid during delivery;
- removing placenta by invasive techniques;
- using a mechanical device tor medicine to advance or retard labor or delivery; and
- making on a birth certificate any false statement or false record in violation of Section 195.003 of the Texas Health and Safety Code.
The Texas Midwifery Act also outlines certain prohibited representations by licensees. These include (i) using in the midwife’s name at title, abbreviation, or designation tending to imply that the midwife is a “registered” or “certified” midwife as opposed to one who is simply licensed; (ii) advertising or representing that the midwife is a physician or graduate of a medical school unless the midwife is licensed to practice medicine in Texas; (iii) using any advertising or identification statement that is false, misleading or deceptive; and (iv) using in combination with the term “midwife” the term “nurse” or another title, initial, or designation that implies that the midwife is licensed as a registered nurse or vocational nurse. Additionally, a midwife that is certified by the North American Registry of Midwives who uses the term “certified” as part of the midwife’s title must include a statement that he midwife is certified by the North American Registry of Midwives.
Complaints, Enforcement, and Disciplinary Action
TDLR receives, investigates, and brings formal actions against licensees at the State Office of Administrative Hearings. Disciplinary action can result not only from the list of prohibited practices described above, but also from a host of activities outlined in Section 203.404 of the Texas Occupations Code. These include:
- violating the Texas Midwifery Act or a Commission rule adopted thereunder;
- submitting false or misleading information to TDLR;
- being convicted of a misdemeanor involving moral turpitude or a felony (TDLR’s criminal conviction guidelines are available HERE);
- abusing alcohol or other drugs;
- engaging in “unprofessional or dishonorable conduct” that may deceive the public;
- being unable to practice with reasonable skill and safety due to illness, disability, or psychological impairment;
- being determined to be mentally impaired by a court;
- submitting a false or fraudulent birth or death certificate;
- violating Chapter 24 of ht eTexas Health and Safety Code or a rule adopted thereunder; and
- failing to practice in a manner consistent with the public health and safety.
The Commission has broad enforcement power over a midwife licensee. This includes the power to order refunds to consumers, impose monetary fines, issue injunctions, deny licensure, and suspend or revoke a license. TDLR, as the agency bringing the enforcement action, has the power to both settle cases internally or refer cases for formal action to the State Office of Administrative Hearings.
If you have received a notice of alleged violation from TDLR, you are already working under certain deadlines. Responses to TDLR are time-sensitive, and the wrong responses can lead to additional penalties and sanctions. The best thing you can do when facing any state action against your license is to engage an experienced professional license defense attorney to help you navigate the road ahead. This is particularly true given the fact that, at the end of the day, action against your license will be determined by a group of individuals who may have no experience whatsoever in your profession.