Hochul’s chapter amendments could undermine new birth center law

This story was published in partnership with New York Focus.

Last year, the state Legislature unanimously passed a bill to clear regulatory hurdles midwives face when attempting to open a birth center.

The legislation passed by the state Senate and Assembly would have allowed midwives to rely largely on approval by a national accrediting body when seeking a license from the state Department of Health. The department had previously issued licensing requirements so onerous that not a single prospective midwife-led birth center had completed an application.

But before signing the bill, Gov. Kathy Hochul insisted on keeping licensing power with the health department, reintroducing complex criteria that the bill was meant to bypass. It was the latest instance of the new governor’s reliance on chapter amendments – late-stage tweaks or wholesale overhauls of bills – to negotiate with progressives behind closed doors, where she keeps most of the leverage.

The bill sponsors said the amended bill was still an improvement on the status quo. “We didn’t get everything we wanted. But I think the situation will be a lot better going forward,” Assembly Member Richard Gottfried, the Health Committee chair, told New York Focus and City & State. “In legislation, you take half a loaf.”

The issue split birth advocates, who said that at a last-minute meeting in December, sponsors gave them a choice between accepting the amendments or risking the governor’s veto.

One camp reasoned that the amended legislation would still give them a foothold to negotiate future regulations with the health department. Others favored letting the governor reject the bill and starting over with a public pressure campaign, rather than pursuing the insider strategy they said the bill’s sponsors urged.

Maternal mortality

There are no birth centers in New York run by midwives, and fewer than five free-standing centers – facilities not located in hospitals – in the state.

It hasn’t always been this way, in a state that helped launch the natural birth movement of the 1960s and ’70s. There have been a spate of closings in the past two decades. Soho Midwives, the Elizabeth Seton Childbearing Center and Bellevue Birth Center all closed in the 2000s. Hospital closures followed: St Vincent’s in 2010 and Mount Sinai West Birthing Center in 2018.

Childbirth has also gotten riskier. New York City’s cesarean section rate soared by 36% between 2000 and 2007, according to the state health department. While C-sections are the best approach for many pregnancies, the surgery comes with a higher risk of death, infection or complications like blood clots, compared to vaginal birth.

Alone among developed countries, the maternal mortality rate in the U.S. has increased in recent years. That rate, a key public health indicator, is dramatically higher for Black and Hispanic women. Between 2006 and 2010, Black women in New York City were 12 times more likely to die from pregnancy-related causes than white women. The disparity is multicausal: racism and medical discrimination, access to health care coverage and high blood pressure all play roles.

Midwives have been shown to improve outcomes for low-risk pregnancies. Birth centers are understudied in the U.S., but in the U.K., where the National Health Service offers midwives at home or in free-standing centers, a study found that healthy women who gave birth in birth centers were less likely to have a C-section, episiotomy, forceps or vacuum delivery, while mortality outcomes were roughly equal.

Why are birth centers so rare? One key reason is cost: Midwives are exposed to the same liabilities as obstetric units, but perform fewer billable services.

In New York, another top obstacle had been that midwives could not operate their own centers; they had to be supervised by medical doctors. The state passed legislation in 2016 to change that, but the state health department took years to issue new rules.

Onerous guidelines

The pandemic spurred interest in births outside of hospitals. Under pressure, then-Gov. Andrew Cuomo put together a COVID-19 Maternity Task Force, which told the health department in April 2020 to finish the licensing process on an accelerated schedule. The department issued a new accreditation process in June 2020, but the regulations were so tough that not a single prospective birth center completed an application.

Advocates said that was because the rules were better suited to major hospitals than small birthing rooms. Birth centers fall under Article 28 facility requirements in New York, a condition for receiving Medicaid reimbursements. The licensing process requires midwives to win approval through the Certificate of Need (CON) application process run by the Public Health and Health Planning Council.

“The CON and licensure process in New York state is the most onerous and expensive in the U.S.,” said Jill Alliman, a director at the nonprofit American Association of Birth Centers. Other states exempted birth centers from the CON process. In New York it is so complex, she said, that most entities hire a consultant to complete it.

In a statement, the health department said that the CON is necessary to ensure applicants meet safety criteria.

“The intent is not to create a burden but rather to make sure that a proper standard of care is being met across New York state. This also helps to protect each of the provider groups to make sure standards are upheld by all entities,” the department said.

Maura Winkler is a midwife who opened a birth center in Buffalo that has received national accreditation from the Commission for the Accreditation of Birth Centers, but is facing delays in the state CON process. She submitted her application, she said, but hasn’t heard back.

The financing requirements of the application are also overkill, Winkler said. Under current working capital guidelines, a birth center must estimate its third-year expenses and show that it has two months of that budget on hand before it has opened its doors to patients. Only half of that capital can be borrowed. Winkler said that’s burdensome and shouldn’t apply to small, low-overhead facilities like birth centers.

“I’m not building a facility from scratch that costs millions of dollars,” Winkler said. “It’s a remnant of (the Public Health and Health Planning Council) wanting to know that hospitals have the money to build new facilities so that they don’t get halfway into building it and then run out of money.”

Brooklyn-based midwife Trinisha Williams had been trying to open a birth center in New York City for years but doesn’t see the point in holding a signed commercial lease – another requirement for the application – while she waits for the state to review the application.

“We actually had found a commercial property, and we had started a conversation (about renting a space),” Williams said, a tricky feat in Brooklyn’s volatile rental market. “But when we tried to call the Department of Health to ask questions about the application, no one got back to us for two or three weeks. I was like, you want me to pay for a commercial lease, $9,000 a month, to just sit and wait? I don't have money like that.”

The Public Health and Health Planning Council is also a source of frustration. The council has a broad array of advisory and decision-making responsibilities related to New York’s health care system, but midwives and advocates of natural birth are not represented on it.

“It goes back to this patriarchal view that doctors need to be in control,” Winkler said. Others see it as a conflict of interest: Birth centers must go up for review and approval from doctors representing the major hospital systems with which they would be direct business competitors.

Chapter amendments

In May, after months of activism by midwives, legislation intended to streamline the licensing process passed the state Senate and Assembly.

As passed by the Legislature, the bill was meant to make the health department rely primarily on national standards from the Commission for the Accreditation of Birth Centers, which does not require, for example, proof of year three working capital. The state might have required additional basic information, like name and address, but the hope was that the department would rubber-stamp the approval of a national accrediting agency.

But after the bill passed, the governor did not sign it. Months went by, and advocates heard that there was pushback from the executive.

“We were under the mistaken impression that something having passed unanimously would hold a lot of weight for the governor’s office,” said midwife Whitney Hall, president of the New York State Birth Center Association. “Honestly, it never occurred to us that they wouldn’t sign it. It was bizarre.”

When she read the first round of proposed chapter amendments, Hall said, “I was heartbroken.”

That wasn’t the bill’s final form. The executive was pushing to add language specifying more application criteria, and explicitly mentioning Public Health and Health Planning Council’s role. Bill supporters pushed back, including Neelu Shruti, a doula and birth justice advocate studying midwifery, and doula Myla Flores. Bruce McIntyre, who set up a birth equity foundation after his partner Amber Rose Isaac died in childbirth, also emerged as a prominent voice for Black maternal health.

Activists involved with the legislation were at first advised by Gottfried’s office not to push the governor’s office on the issue, Shruti and Flores both said in interviews. After Thanksgiving, they said, activists were getting impatient and were advised to apply public pressure – cautiously.

“By Thanksgiving, we were like, well, what’s happening? It’s almost the end of the year,” Shruti said. “They were like, ‘Yeah, I guess you can push. But also, they were saying, ‘Don’t go stand in front of her office.”

Hall said Gottfried and state Sen. Gustavo Rivera’s offices suggested advocates pursue a more conciliatory strategy, but stopped short of telling them what to do.

“They directly said what it would feel like to them if someone was advocating outside of their office. And they used the word aggressive – ‘That feels aggressive.’ So, they don’t tell us what to do, they just tell us what their perception of it is,” she said.

Asked about the claim that his office advised against protesting in front of Hochul’s office, Rivera said, “I did not discourage anyone from doing anything publicly like that.”

He added: “Sometimes there’s high-stress moments in which there might have been some disagreements on the tactics. But ultimately, I will not discourage folks who want to advocate publicly for something, if they feel it is effective.”

High-pressure negotiations

A back and forth over the amendments carried on through the winter holidays. On the night of Dec. 30, Rivera’s office held a last-minute meeting with Hall, Shruti, McIntyre and Flores. At the high-pressure meeting, the office presented the amendments as a final offer.

“The deal was, take it or leave it. It’s a veto, or you accept these amendments,” Shruti said. “It was extremely secretive, because they were saying, you can’t share these documents with anyone, you can’t talk to anyone.”

Rivera’s office said that if they wanted the veto, they could try again. “But they were very discouraging of that option,” Shruti said, and suggested it might get “flagged” in the future, if it failed at this stage.

Staff also urged advocates to stay in close contact with their office as regulations were issued, which Flores found persuasive.

“At least it wasn’t terrible. It’s half decent,” Flores said. “When I saw the language saying that the goal is to harmonize what exists now, here in the state, with what exists nationally, to ultimately serve the intention of the bill, I was like, OK … let’s see what this can do.”

Shruti disagreed: “I personally was like, this is absolutely not what we want. Just get a veto and then really challenge her in an election year to do the right thing.”

“The birth world is not super politically savvy,” Shruti added. “Now, the governor gets a lot of credit for signing this bill. Both sponsors get a lot of credit for signing this bill. And advocates are now afraid to challenge them to say this bill wasn’t what we wanted because now they’re afraid that this regulatory process isn’t going to go as planned.”

The New York State Birth Center Association, of which Flores and Hall are both members, held an impromptu call shortly after the meeting, Hall said. Members who joined the call were split over whether moving ahead despite the amendments had been the right choice.

Legislation signed on New Year’s Eve

“The Department of Health and the Certificate of Need process play a critical role in safeguarding patients and staff in healthcare facilities by requiring applicants to meet certain safety standards and criteria. I have secured an agreement with the Legislature that maintains the legislation’s intended streamlined licensing process for midwifery birth centers, while also balancing the need for adequate oversight from the Department,” Hochul wrote in an approval memo on Dec. 31.

The final version of the bill gave the health department power to use additional licensing criteria, including evidence of the capability to fund renovations and construction costs, as well as life, safety and building standards. It also stated explicitly that some of the standard requirements for an Article 28 license, like an assessment of an owner’s “character and competence,” will apply.

“The real debate was about life and safety criteria, because that concept can be used to impose onerous limitations that are really not necessary for something like a birthing center,” Gottfried said.

Birth center advocates – including several who ultimately supported the decision to forge ahead despite the amendments – now fear that codifying these criteria in the bill could replicate the lengthy and expensive process of the past. They also fear that delays in the review process could persist.

“It’s a fair concern,” Gottfried acknowledged. “The question is, does the bill, even with the chapter amendment, represent a step in the right direction? And I think it clearly represents a big step.”

On the final outcome, he added, “I am glad we were able to negotiate with the governor to secure her signature rather than have the bill vetoed, which could kill any movement on a topic for years.”

In negotiations, bill sponsors pushed to add language requiring that health department regulations be developed in consultation with midwives. The final legislation required rules to be “harmonized” with accrediting bodies.

Hall supported moving ahead with the chapter amendments, but said she’s only cautiously optimistic. While she said the state’s new executive leadership should give midwives hope, she worries that the health department has historically misunderstood the obstacles.

“The lawyers that work for the department of health have an interpretation of the law that’s pretty restrictive,” she said. She’s waiting for the published regulations to see whether those attorneys’ interpretation wins out. “Do they really see the problem? I think the governor’s office does. I have faith that (Health Department Commissioner Dr.) Mary Bassett does.”

Winkler said she worries about the fuzzy language. “Are they going to truly ‘harmonize’ the requirements with (the Commission for the Accreditation of Birth Centers)? And if they don’t, how do we prove to them that they aren’t, how do we hold them accountable to the law?”

Chapter amendments become more comprehensive

Democrats hold supermajorities in the Assembly and state Senate, and both chambers have been emboldened by a new governor reluctant to alienate her left flank. A closer relationship between elected officials and the governor could mean that advocates are asked to forgo outside pressure for a more inside baseball strategy.

Chapter amendments have been more sweeping under Hochul, said Blair Horner, executive director of the New York Public Interest Research Group, a nonprofit state policy organization.

“It seems to be, in some cases, complete overhauls of the bill. It’s unusual,” Horner said. He pointed to “dramatic” changes to other bills requiring health department involvement, including a bill for an antibiotic stewardship program in hospitals and nursing homes, and legislation on unregulated contaminants in drinking water.

When the governor threatens to veto a bill, legislators still have a last-ditch option: A veto override. But that alternative is almost never used – a fact that many attribute to the institutional bias in New York politics toward the executive.

The Legislature can only subtract or delete items from the executive budget. It could decline to approve the budget if the executive refuses to add key priorities, but that would be a risky step.

“If it were a legislative budget, the governor would exercise the veto, which puts the Legislature in the driver’s seat. This is the opposite,” said Phil Steck, an Assembly member representing Schenectady. “So when it comes to chapter amendments, the Legislature often fears there will not be cooperation in negotiating the budget if there’s not cooperation in doing the chapter amendments.”