In the last legislative session there were, once again, some changes to how expungements are done. The criminal record isn’t actually destroyed. I like to say it’s just put into a different file cabinet, so to speak. The technical name is sealing. If you are considering sealing your record it’s important for you to know that law enforcement can still see your criminal history so sealing is most helpful for employment and housing. By law you can say it didn’t happen but whether or not you should say that is a different story. I’ve helped many clients seal their record. Whether or not you qualify to have your record sealed isn’t an easy question to answer and will require a phone consultation. Below are a few of the recent changes:

• filing fee is now eliminated
• waiting period eliminated for non-violent felonies
• waiting period eliminated for misdemeanors
• time between filing of the petition and judge being able to issue order and reduced for misdemeanors
• changes to how many licensing boards can treat criminal records and the effect of sealing (Act 990 of 2019)

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If you have a medical board complaint you should have an attorney write it for you. A complaint from an attorney carries more weight. If you are ready to submit a medical board complaint it usually means that whatever happened was very serious so you really should consider hiring an attorney for something so important. The complaint should mention relevant law. And the complaint should include relevant medical specific information like the standard of care and concepts like informed consent and informed refusal. If you have been forced to undergo a medical procedure and didn’t give consent or didn’t have the information needed to give consent that was actually informed, it is important to mention this in a complaint. The attorney can also communicate back and forth with the board which means you don’t have to revisit the nightmare of what happened to you.

Your attorney can also represent you at a hearing, if one is scheduled, and help you gather evidence or review evidence. Recently, a potential client told me about an unsuccessful complaint. The doctor lied in his response and made statements like, the patient was only given one bag of IV fluids. But the truth was that the patient was given 2 bags of IV fluid. If I were working on the complaint I would have said prove it and demanded that they show in the medical records where only one bag was given. Getting electronic copies of your medical records should also be done before your complaint is submitted. Medical board complaints arenâ€t usually successful but they can be! You increase your odds with an attorney who is familiar with licensing, the standard of care, and the medicine relevant to your issue. Please at least consult with an attorney before filing a medical board or nursing board complaint.

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The Emergency Medical Treatment and Active Labor Act was passed while Reagan was in office back in 1986. The goal was to stop hospitals from refusing to care for people having serious medical emergencies because they didn’t have insurance or couldn’t pay for treatment. This was happening at an alarming rate even to people with gunshot wounds. People who were treated were often transferred to public hospitals before they were stabilized which is called “patient dumping”.

When does EMTALA apply? It applies when you go to an emergency department. An urgent care or doctor’s office is not equipped to handle emergencies so EMTALA wouldn’t apply. The gist of the law is that if you go in requesting an exam to determine if there is an emergency condition they have to give it to you and can’t delay by asking about your ability to pay. If an emergency condition exists they have to provide treatment until it is resolved or stabilized. Hospitals with specialized capabilities are required to accept transfers. If a receiving hospital believes someone was transferred into their care before being stabilized they must report it.

How do you report a violation of EMTALA and to who? That is the interesting part. I recently helped a client who was in a serious car wreck and went to a Jonesboro hospital. He had multiple broken limbs requiring surgery and for some reason it took about one week for him to get the surgery which required a transfer to central Arkansas. There were some hiccups with the transfer and the surgery was delayed again. The first thing I did was contact the regional office of The Centers for Medicaid and Medicare Services Office (CMS…yes one “M”) which for Arkansas is located in Texas. Nobody answered the phone. I left voicemails and nobody returned them. I emailed the addresses on the website and got a response fairly quickly but they referred me to a different department which I had to email multiple times. There is no actual process or online intake forms for an EMTALA complaint! Eventually someone emailed me back who could help. All I was asked to do was email what happened. I was shocked at the informality of the process and the lack of transparency. About 8 months later I received a letter stating that there was no violation. The rationale for the decision wasn’t included. The evidence or information used to reach that decision wasn’t included either. The letter I received said the following, “Consequently, we found no violation of 42 CFR 489.24 or 42 CFR 489.20 by the hospital. Based on your individual situation, however, you may wish to consider the civil enforcement provisions of 1867 of the Social Security Act on an independent basis.”

Hopefully this clarifies a process which is anything but clear! More importantly knowing that EMTALA exists, what the acronym stands for, and that it applies to a woman who is in labor is very important when advocating for yourself in a hospital setting. If a complaint is found to have merit the hospital can be fined. If you’ve had an EMTALA complaint that was successful please let me know about it!

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I recently settled a case against the City of Walnut Ridge. The issue was whether or not a citizen’s posts on the city’s police department Facebook page could be deleted. Without getting into the details of what happened I want to explain some of the challenges of these cases because I’ve gotten a lot of inquiries.

First, in a lawsuit against local officials, qualified immunity applies.  Most cases have found that blocking or deleting comments based on viewpoint violates the First Amendment but one case came to the opposite conclusion. The problem is there aren’t very many cases to look at for guidance.  Qualified immunity does not apply in suits against a municipality, but you do have to show that there was an official policy.  Showing an “official” policy is harder to do.  Each side will argue over who the policymaker was (was it the mayor or city council) and then you probably have to show knowledge of and failure to stop the unconstitutional policy. There may be other ways to show an official policy, for example, a policy posted on the municipality’s social media site that allows viewpoint-based deletions and blocking. Then you have to show that the policymaker approved the policy. If you have information about how you could prove this in a lawsuit it may be worth considering taking legal action.

Second, if someone who was blocked or had their comment deleted wants anything more than nominal damages, they’ll need to prove some actual harm. What are the damages when your comment has been deleted? Another option could be a lawsuit for an injunction which would stop the bad behavior. Qualified immunity does not apply in lawsuits for injunctions, so individual officers can be enjoined or stopped from violating people’s rights. The Trump Twitter case in the Second Circuit and the Randall case in the Fourth Circuit were lawsuits for injunctions.

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What is the difference between a license and a certification? A license is required by law. Think “L” for Law. A certification is when a non-governmental organization recognizes someone for meeting certain goals or attaining a level of training or education. The best example is a doctor. Let’s talk about plastic surgeons. A board certified plastic surgeon is a M.D. who has earned an extra set of initials from a professional membership association. The idea is pretty simple and powerful. A group of professionals decide to form a membership organization, collect dues, and offer training to members.

Some certifications do not require a license. I am a lactation consultant or IBCLC. The IBCLCE issues the credential, IBCLC, which stands from International Board Certified Lactation Consultant. The “E” stands for examiners. Some professional membership organizations or “credentialing bodies” have been around a long time. The history of some is fascinating. When the Sheppard-Towner Act was passed in 1921 it came after the full enfranchisement of women and was considered social security legislation. The Act was responsible for the medicalization of birth and it was political. The American Medical Association saw it as a socialist threat to its autonomy but the AMA Pediatric Section was in favor of it. This difference of opinion led to the Pediatric Section splitting off and forming the American Academy of Pediatrics that we know today.

If you hold a license and your profession doesn’t regulate the license holders directly you should strongly consider joining a professional membership association or forming one! In Arkansas there is a long list of professions regulated by Arkansas Department of Health bureaucrats instead of actual members of the profession.

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By now we’ve probably all heard, “informed consent is a conversation, not a piece of paper.†The Joint Commission, ACOG, and other organizations agree on this even if hospital staff conveniently forget. This “Consent to Operation or Procedure†form as it is called at a hospital here in Arkansas is not a release. A release is the form you sign when you drop your kiddo at the trampoline park or before you get on a horse for a trail ride. Those are releases. By signing you are giving those businesses a pass, so to speak. If you are harmed because of their negligence you have released them from any liability. FYI-these forms usually won’t let a business get away with harm caused by gross negligence.

Now, back to that nurse who is waving a form in your face while you are trying to focus on bringing your baby into the world. The hospital consent form is not the same as a release. By signing it you are consenting to the inherent risks of the procedures (look at what they’ve penciled in on the form) but not negligence. Hopefully nothing goes wrong with your labor and delivery but rest assured, by signing this form you did not agree to release the doctor of any negligence!

Often this form is used in court as a defense by the doctor to show what’s called “assumption of risk.†Without getting into the weeds, it simply means that the damages may be reduced because you knew about the risks, accepted them, and signed on the dotted line. Hopefully this demystifies the hospital consent form and puts us in a better position to advocate for ourselves!

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In this episode, Cristen speaks with Kesha Zaffino, an Arkansas lawyer who represents consumers working for better midwifery regulations.  Right now, for example, the law requires a number of vaginal exams for home birth midwifery clients–something Ms. Zaffino describes as “state-sanctioned rape.† (The regulations are similar to what is described in Arizona: Mandatory Surgery or Forced Vaginal Exams.)

SEPT. 2017 CONSUMER ALERT: The Arkansas Department of Health will hold a public hearing on September 21, 2017, at 10:00 a.m. in the Auditorium of the Arkansas Department of Health, 4815 West Markham Street, Little Rock, AR in conformance with the Administrative Procedures Act, Ark. Code Ann. § 25-15-201 et seq. It is proposed to revise the Rules and Regulations Governing the Practice of Licensed Lay Midwifery in Arkansas pursuant to the Administrative Procedures Act as amended, and by authority of Ark. Code Ann. §§17-85-101 et seq. and Arkansas Code Ann. §§20-7-109.  A draft copy of the proposed revisions is here under the heading “Midwifery.â€Â 

Interested members of the public can submit written comments no later than 8:00 am on September 21, 2017 via

Email at womenshealth@arkansas.gov

Or mail to:
Attn: Womens Health Section Chief
Arkansas Department of Health
4815 West Markham Street
Women’s Health Slot # 16

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Arkansas Licensed Lay Midwives are regulated by the Arkansas Department of Health. Current rules require mothers to prove they are medically fit to endure a midwife-assisted birth by undergoing two medical assessments with a qualified medical provider or public health clinician. Midwives must relinquish care of any client found to be at risk, or risk losing their license.

Midwifery advocates worry that new draft rules up for adoption this month will require mothers to submit to even more medical scrutiny, potentially pushing them into the arms of unlicensed midwives.

Kesha Zaffino is an attorney and a member of the national Birth Rights Bar Association who represents Arkansas Birth Matters, a grassroots consumer group.

“The new rules are broader,” she says. “Now she’ll be subject to a third risk assessment.”

Attorney Kesha Zaffino is a member of the national Birth Rights Bar Association representing the interests of licensed midwives and home birth advocates in Arkansas. CREDIT KESHA ZAFFINO

Zaffino says mothers are reporting that the medical assessments are already too invasive.

“The rules state that the mother must submit to a vaginal exam, unless the clinician makes that call,†Zaffino says.

Act 481, passed in 1987, authorizes and directs the Arkansas State Board of Health to adopt regulations governing licensed midwives, and the act directs the Arkansas Department of Health to administer the regulations. A Midwifery Advisory Board serves as community liaison.

The draft rules were approved earlier this year and posted online for public comment. The rules give mothers the option to refuse certain tests if her midwife is certified under the North American Registry of Midwives which maintains rigorous standards for knowledge, skills and experience.

Failing an assessment, mothers seeking a home birth, Zaffino says, may struggle to find an obstetrician or qualified family medical provider to take over.

“So rather than let a trained licensed midwife continue to care for mother, mother is now left without maternity care, placing her and the baby in a very dangerous position.â€

Arkansas licensed lay midwives are currently barred from caring for clients who’ve previously delivered surgically, although American College of Obstetricians and Gynecologists guidelines cite natural delivery as a safe and appropriate choice for such mothers. One-third of all deliveries in Arkansas are surgical according to the U.S. Centers for Disease Control and Prevention. Some are scheduled for medical reasons, others for convenience — preferred by busy obstetricians and moms.

But with surgery comes certain risk. A complaint filed by Arkansas Birth Matters points to a National Institutes of Health report issued seven years ago stating concern about barriers to natural labor after cesarean. And recent national datashow rates of maternal morbidity are higher for cesarean compared to natural deliveries.

The Arkansas Department of Health is charged with protecting the welfare of mothers under the care of licensed midwives. CREDIT DEB PHILLIPS

Zaffino says licensed lay midwives who are trained in prenatal, labor, delivery, and postpartum care are able to recognize childbirth risks, know when to reject a client, and know when to transfer them to a medical provider.  Certified professional midwives, credentialed though the North American Registry of Midwives, including several in Arkansas, offer even higher levels of medical expertise, as do certified nurse midwives trained in dual disciplines. Lay midwives, who have no license, also deliver babies in Arkansas — but below regulatory radar. And mothers who fail risk assessments, Chiapinnelli says, may resort to paying an unlicensed midwife for birthing services.

“Midwives have to show they have certain education and training, and are held accountable to the public, like a regular obstetrician.â€

Currently 28 licensed midwives, which includes certified nurse midwives, operate in Arkansas, delivered several hundred babies in 2014 (the last count available), among the more than 38,500 statewide that year.

A public hearing on the final draft rules posted on the Arkansas Department of Health website Lay Midwifery page is set for Thursday September 21 at 10 a.m. in the agency’s auditorium on Markham Street in Little Rock. Written public comment is requested.

This story is produced by Arkansas Public Media, a statewide journalism collaboration among public media organizations. Arkansas Public Media reporting is funded in part through a grant from the Corporation for Public Broadcasting, with the support of partner stations KUAR, KUAF, KASU and KTXK and from members of the public. You can learn more and support Arkansas Public Media’s reporting at arkansaspublicmedia.org. Arkansas Public Media is Natural State news with context.

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The latest on unconstitutional state agency rule making in Arkansas. After having a baby in California with a midwife and doula in a baby friendly hospital in Woodland California and moving back to Arkansas I found the midwifery rules, created by the Arkansas Department of Health, to be onerous and unconstitutional. The rules compel women who hire a state licensed midwife to see a local health clinic nurse and the rules require a vaginal exam among many other tests and procedures. Think about that for a moment…. A mother is getting quality prenatal care in the comfort of her own home on the same schedule as an O.B. from a licensed midwife but is compelled to go to her local health clinic nurse for a vaginal exam and other tests. If she declines this clinic visit will lose her midwife and may be left without any prenatal care depending on how far along she is. The rules state that the pregnant mother cannot decline the vaginal exam. After talking to members of Arkansas Birth Matters I have encountered at least 10 women who were coerced into having vaginal exams at the local health clinic under these rules beginning in 1999 up to 2017. Some of the women were purposefully treated in a rough manner and felt shunned because of their decision to have an out of hospital birth. There is no complaint mechanism for these women and the Arkansas Department of Health has been made aware of the issue. Click the links below for reports from NPR and other local news stations about these forced vaginal exams.

Stay tuned for more information about public comment and the opportunity to speak against rules like this that compel medical treatment on competent adult women.

http://arkansaspublicmedia.org/post/arkansas-midwives-home-birth-advocates-pains-new-stricter-midwifery-standards

http://katv.com/news/local/mom-wants-adh-to-take-hands-off-approach-to-midwifery

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