My story…the short version

A pathologist, nephrologist, and urologist walk into a boardroom…

Though this sounds like the start of a joke, what happened next was hardly funny. These three doctors, who are on the Louisiana State Board of Medical Examiners (LSBME), decided to indefinitely suspend my midwifery license.

What Happened?

Nothing. Other than a normal homebirth, where an 11-pound baby was safely delivered, nothing happened. There were no injuries. The mom and baby were not transported to the hospital before,during or after the birth. In accordance with the law, this mother’s obstetrician stated five times in her medical record that she was low risk and healthy for a homebirth.

On Christmas Eve in 2014, as I was leaving to a holiday party, I received a certified letter.  It stated that the Louisiana State Board of Medical Examiners summarily suspended my midwifery license under the guise of protecting Louisiana citizens, from what I am not sure.  While the news of being unable to attend any further births put a damper on my holiday, it pales in comparison to the experience of one of my other clients. She gave birth three days later without a healthcare provider by her side because she could not find a midwife to replace me in that limited amount of time and the LSBME, with blatant regard for this woman and her baby’s safety, refused to allow me to continue care.

The next three months following my suspension consisted of being at the mercy of the LSBME.  The LSBME’s idea of following the law included lying, withholding evidence, and purposefully manipulating the rules and regulations. In the end, the LSBME accused me of deviating from midwifery standards of practice, exhibiting incompetence as determined by local midwifery standards, and fraud and deceit in connection with services rendered. None of these allegations are true.

The LSBME allowed a videographer, who attended the birth, to file a complaint against me.  Ironically, while the labor was caught on video the actual birth was not, yet I was still accused of not delivering a baby correctly. However, I did not know who filed the complaint or what the allegations were until the day before my adjudication.  Of course this allowed me no time to prepare for her coached and rehearsed untruthful testimony.  Not only did this single, childless videographer lack medical training, her complaint was based on untrue allegations.  Her dishonesty was propagated by a local midwife and obstetrician, who coincidentally opened a new birth center located five miles from my home. Can anyone say competition? I can.

The videographer, without the birth parents consent, showed the video to this competing midwife and obstetrician. Coincidentally this was the same obstetrician my client, the mother, was transferring care from when she decided to have a homebirth with me.  The videographer worked closely enough with the birth center that they exclusively listed her photography services on its website.

Healthcare providers should be petrified that a videographer/photographer was allowed to file a complaint against their license especially when no one was injured.  Though anyone should be allowed to make credible complaints against anyone’s license, the allegations should be truthful.  None of the videographer’s allegations were proven to be anything but her opinion. Had the LSBME consulted with a noncompeting midwife, the charges would have been dropped.  Instead, I was judged by three doctors (a pathologist, nephrologist, and urologist). They did not understand what was happening at this homebirth nor could they imagine what was normal because management of a homebirth is vastly different than a doctor-led hospital birth.

Likewise, the LSBME could have interviewed any of the other four adults present in the room during the birth. This included a nursing student and doula with more knowledge and experience with normal births than the videographer, which would have laid the videographer’s false allegations to rest. The parents testified on my behalf,explaining to the board that they were overjoyed with my careful, quality of care and would do the same birth all over again with me as a provider. The parents even asked me to attend the birth of their next child, but because my license is indefinitely suspended, I was unable to attend. This mom went on to have another 11-pound baby in a hospital setting, attended by another midwife without judgment on her license.

No one can control how a birth is perceived. It all depends on the persons’ perspective. The people with the most important perspective are the parents. They thought the birth was perfect, not at all traumatic as indicated by the LSBME. Homebirth is raw,natural, messy and organic.  It’s hardly the same as a hospital birth. So of course a nephrologist, urologist, and pathologist who have never seen an out-of-hospital birth might perceive the normal sights and sounds of a homebirth as traumatic. Nothing unlawful or malicious happened at this birth or post-partum.

The LSBME was the investigator, accuser, judge, and jury in my case. In fact, the Lead Investigator was also the Executive Director of the LSBME—further evidence of injustice and conflict of interest. The Executive Director’s behavior, widely-known to be abrasive, abusive, and hostile did not lend itself to any professional negotiating or understanding. Under her direction, the LSBME acted like a soap opera; she allegedly had an affair with an attorney who worked with the LSBME to prosecute its victims, then hired his niece as part of the investigative staff, as evidently nepotism doesn’t apply to Louisiana. You just can’t make this stuff up.

Additionally, I didn’t have adequate access to the testimony nor appropriate peers to sift through the false allegations. Even though no one was hurt, injured, died, and no transfer to a hospital occurred, my livelihood was stripped from me because of competition. There was no oversight to this board. It screams of antitrust. Louisiana law states that a board of midwives serving underneath the LSBME would oversee any midwifery complaints. However, that board of midwives was dismantled years previously, evidently due to budgetary constraints.

In Adam Crepelle’s article, Guest column: Louisiana licensing rules stifle free market, he noted that “by making it harder to enter a profession, licensing can also reduce employment opportunities and lower wages for excluded workers, and increase costs for consumers.” The report notes that licensing is particularly burdensome on those required to move for work,like military families. It also asserts licensing hits the poor the hardest because they are often unable to afford licensing’s training costs.Furthermore, the report concludes that “most research does not find that licensing improves quality or public health and safety.”

Also, according to Alden Abbott of the Heritage Foundation, “In recent years, however, there have been signs that the Fourteenth Amendment ‘rational basis’ test that applies to economic regulation may be applied more expansively by the courts when it comes to analyzing anti-competitive licensing restrictions and related affronts to one of the most basic civil rights of all: the right to earn a living.”

Off the record, I consulted several midwives who are expert witnesses in other states and they agreed that my case was biased and unfounded, but I could not utilize their testimony because the prosecution set the tone of the courtroom, whereby doctors were used to defend midwifery rules and regulations. This is something doctors cannot adequately do because, well, they are not midwives and do not understand what occurs at a homebirth. Midwifery rules and regulations, especially for autonomous, out-of-hospital midwives are, and uniquely designed for, complete,continuous independent care of low-risk, healthy mothers. The mother whose baby I delivered was low-risk and healthy, as indicated five times in her medical records by the obstetrician she was seeing during the pregnancy. The LSBME told me that this obstetrician was “wrong.”

Why didn’t I appeal the decision?

Unfortunately I didn’t have the available funds. This was my second client in Louisiana as a licensed midwife,so my income was minimal. My attorneys were flabbergasted at the railroading that occurred at my hearing. Initially, they thought these allegations would not amount to anything close to a suspension because license suspensions are usually only given when a practitioner does something horrific like operates on the wrong leg, practices under the influence of drugs or alcohol, or prescribes medications illegally, not during a birth where no one was hurt or injured.

The decision the LSBME made in my case was unprecedented. A regulatory board like the LSBME is responsible for “protecting the public from unsafe practitioners,” but clearly it overstepped its jurisdiction because it did not have any oversight. It took advantage of its intended purpose and instead applied irrational, unreasonable, arbitrary, and burdensome requirements to unduly limit my individual constitutional liberties. Due to institutional corruption, an appeal was looking unfavorable, and it would cost me an additional $30,000. Unable to get the upper hand and find additional funds, I had to cut my losses and regroup. Besides, my family needed me.

I spent the next two years helping to care for of my 86-year old grandmother, while my mother took care of her dying husband, all while going through a divorce. Additionally, I found out I have thyroid cancer. Last year, I attempted to find some gainful employment doing something, anything that would help me afford health insurance. I live in a ‘red state,’ so even Medicaid insurance would cost me hundreds every month. I applied to about 50 different jobs from department stores to libraries. I couldn’t get past the background check with a suspended license on my record,despite having had a midwifery license in Wisconsin that was never acted upon and had no lawsuits. I chose not to renew my Wisconsin license, as I did not live there. I was fortunate enough to maintain my skill set in midwifery by working as an assistant midwife and birth assistant, but the pay is not as steady nor much as it would be if I were an independent midwife.  I could not afford to keep paying my health insurance premium of nearly $700 a month.

I moved to Florida in the spring of 2018 to work at a birth center where I would have a more steady income as an office assistant and birth assistant. I took a second job house sitting so that I would have a place to stay. After realizing that my first application for midwifery licensure in Florida should not have been denied, I chose to reapply after completing the in-state requirements. But once again, the suspended license in Louisiana is somehow preventing the Department of Health in Florida from granting me a license, even a temporary one, in the underserved area where I live. Although Florida has a Council of Midwives who assist the Department of Health in making decisions regarding midwifery rules and regulations, the Council was not given the ability to have any input on my application. Likewise, if my allegations were true and I was adjudicated in Florida, my sanctions would be at most a fine of a few hundred dollars and a few months of probation compared to an indefinite suspension.

The stipulations required to lift my suspension and place me on probation include paying the LSBME nearly$18,000 in fees (which the LSBME didn’t calculate until 11/2017), going to the LSBME’s handpicked rehab in Mississippi, completing three courses, demonstrating my understanding of the Louisiana midwifery rules and regulations (which the LSBME will elaborate only after I go to rehab), and paying a $300 fine. According to an email from my compliance officer on November 13, 2017, the LSBME accepts cash or money orders only. They do not take credit cards, have payment plans, or will agree to community service in lieu of fines or fees.  However,in an email correspondence tonight with the new Director of Investigations, he stated that “the board has been willing to work with licensees in the past if money is the primary reason a person would not be able to comply with orders and sanctions of an administrative hearing.  Paying over an extended period of time has been granted in the past.” Clearly, the LSBME personnel lack consistency and understanding of LSBME policies, procedures, and options regarding payments.

Despite the fact that physical, mental, drugs, or alcohol were never an issue in my case, the LSBME is requiring me to go to one of five rehabs to prove it. Interestingly, two of the rehabs closest to me declined to admit me after viewing my court documents because I do not fit their criteria for admission. Coincidentally, after the Mississippi rehab Pine Grove consulted with my compliance officer at the LSBME,they decided I was a “perfect” candidate. There is abundant information on how Physician Health Programs (PHP) choose to utilize fraud, deceit, and fabrication to go above the law to commit crimes for these boards, whom conveniently give them immunity and a constant flow of “customers.” Furthermore, the LSBME continues to change its requirements. For example, it stated that I could take courses found on the Board of Nursing’s website, but months later were silent on whether those courses that I already completed were adequate.

In a contrary statement, the new Director of Investigations wrote in October of 2018 that he reviewed my file and found that “there is no mention or recommendation of a drug and alcohol treatment facility.  This is not a requirement of the Board and therefore you do not have to commit yourself to a drug and alcohol treatment center.  The Board does require a mental/physical evaluation by a physician or group of physicians who have been pre-approved in writing by the Board.  You must also have an evaluation showing that you have been deemed competent to resume the practice of midwifery.” This sounds confusing because it is. I have several emails from my compliance officer stating the opposite. These boards are notorious for (un)comically being Lucy constantly moving the football so that I, Charlie Brown, can’t kick it.

Likewise, in an even more frustrating turn of events, the new Director also stated in an email from October 2018 that my compliance officer could set up a payment plan for the almost $18,000 fee, but my compliance officer stated that I would have to get preapproval from the LSBME before she could set up a payment plan because she could not guarantee that the LSBME would accept a payment plan even though the Director of Investigations stated to do so. Also, now I am apparently supposed to find my own physician to conduct a mental evaluation but they will not tell me what I need to be evaluating. Once I find someone who I think can do the evaluation I am to have that person contact my compliance officer for specific instructions on what exactly needs to be evaluated. Sound shady? Yes, yes it is.

Why share this story now? Why didn’t I share it three years ago when it happened?

The Supreme Court has finally realized how out-of-control and cartel-like these state boards have become. In 2015, in North Carolina State Board of Dental Examiners v. FTC, the Supreme Court held that when a controlling number of state board members are market participants, the board must be “actively supervised” to be immune from antitrust law. States have three options for complying with this ruling. First, they can choose not to put a controlling number of active market participants on boards. Second, they can actively supervise boards where market participants make up a controlling number of members. Third, they can forgo state action immunity by not actively supervising boards and keeping a controlling number of market participants on boards. Without such changes, state boards may be subject to antitrust liability for actions that are deemed to be anticompetitive.

In May 2018, Louisiana Senator John Milkovich introduced a bill to the Louisiana legislature to provide oversight to actively supervise these corrupt boards, like the LSBME. The bill was approved and instituting its requirements have begun, albeit slowly.  Therefore, I finally feel like I have a chance to positively change my circumstances. Louisiana needs to nullify the absurd sanctions placed on me. Please join me in contacting the following agencies and complaining on my behalf at the injustice and the unreasonable restraint on competition violating federal antitrust law that occurred. *However, since this bill was just “dropped on them” as stated by the secretary of the House and Governmental Affairs Committee, at this time, she does not know what a formal complaint should include.  I will update this information as soon as their attorney returns my call.

In compliance with Act 2018-655, the board gives notice to its licensees and applicants of their opportunity to file a complaint about board actions and board procedures. You may submit such complaints to one or more of the following organizations:

  1. Louisiana State Board of Medical Examiners; 630 Camp Street, New Orleans, LA 70130; (504) 568-6820; lsbme@lsbme.la.gov
  2. Committee on House & Governmental Affairs; La House of Representatives; PO Box 444486, Baton Rouge, LA 70804; (225) 342-2403; h&ga@legis.la.gov
  3. Committee on Senate & Governmental Affairs; La Senate; PO Box 94183, Baton Rouge, LA 70804; (225) 342-9845; s&g@legis.la.gov

Conveniently, the media group Gatehouse recently published a series of articles pertaining to out-of-hospital midwifery. They complied a database of all midwives across the US. If we look at Louisiana’s active licensed midwives (and the five midwives who would still be practicing if their licenses were not acted upon) we will find shocking statistics—32% (8/25) have had their licenses acted upon in some capacity. This further underscores the restriction of trade and antitrust issues occurring there. Out of those 20 with active licenses, three have been acted upon by the LSBME for violations and are still practicing in some capacity, whether that is on probation or in a state of undocumented, involuntary suspension. These violations, which midwives carry on their record forever, stem from simple clerical errors to natural occurrences that no one can predict or prevent like stillbirth. Two midwives, including myself have their licenses suspended. One Naturopathic physician was also targeted by the LSBME and had her license to practice midwifery revoked. The data speak for itself: more midwives have inactive licenses in Louisiana than those actively working (26 with two of those licenses having been acted upon). This means that there are more midwives in Louisiana that have, for one reason or another, stopped practicing in Louisiana. Is this because Louisiana unfairly and unjustly monopolizes the practice of midwifery? We can imagine that these midwives who are not practicing anymore or have declined to renew their licenses were dissuaded to do so because of the unethical railroading that occurs there. We can assume they would still be working in the field of midwifery if this Board had oversight and any adherence to the spirit of the law. When 32% of the Louisiana midwives are targeted, no one can claim this field is not being restricted.

According to the NOLA.com article Under Fire from Opponents, Medical Examiners Bill Stripped of Key Provisions, the number of doctors having active licenses acted upon is around 30-50 per year according to Cecelia Mouton then Executive Director of the LSBME. A census in 2016 from the Federation of State Medical Boards states that there are 16,894 active licensed physicians in Louisiana. Louisiana has provided licensure for midwives since 1984. So if we compare the amount of midwives to doctors over the last 34 years and the irrespective disciplinary actions (taking an average of 40 per year for doctors),midwives licenses have been acted upon 32% vs doctors 8%. How is the LSBME not overstepping its administrative function? How is this not a restraint of trade?How is the LSBME able to adequately discipline midwives when it is obviously biased?

The LSBME has traumatized me.From investigators showing up at my house to hand deliver a subpoena to knocks on my door from the mail carrier delivering certified letters—I lived in a constant state of fear of how the LSBME would affect my life. I lost over 20 pounds in two months from the stress. The LSBME combed through social media to use posts against me, forcing me to delete or make private all social media support systems I had established. I was concerned that my husband could lose his job, since he worked for the state of Louisiana. I worried that my daughter would be bullied in school by the obstetrician’s children. I was concerned that a lien would be placed on my property so that I could not move until I paid the fees. No part of my life was untouched by the evilness of the LSBME.

I am an over-qualified, educated, competent midwife, who cannot practice because of a bogus adjudication. I have never lost a mother or baby. I have never had a lawsuit. In the last three years, I have taken over 300 hours of continuing educational units. That’s far beyond any required amount in any state. I would be a valuable asset to any state, city, and community. I have two degrees in the study of midwifery, in addition to a bachelor’s degree. I have completed a course as an EMT. I have several job opportunities awaiting me at birth centers in Florida, but I only need a license. My position as a college midwifery clinical coordinator was rescinded as soon as my license was suspended. I am a preceptor for midwifery students. While I have suffered emotionally, physically, financially, and mentally because of my suspension, ultimately it is consumers seeking midwifery services who have suffered by not having access to one. Likewise, students who need preceptors are suffering from not having one more choice. Therefore, the LSBME is not only hurting me, but also mothers, babies, and future midwives.

Although I have been very blessed in the opportunities I have been given and the kindness and gratitude of my friends and family, it is simply not enough to sustain any lifestyle, especially one where I also need medical care. Please help spread my story to attorneys, organizations, and writers so that I can get the word out on the unconstitutional and biased decision made by the Louisiana State Board of Medical Examiners. Please call and/or write to the LSBME, the LA House, and LA Senate and complain on my behalf towards the goal of nullifying these sanctions so that I do not need to pursue litigation in either state.  Please help me raise the funds I need to overcome all of this and once again provide safe, competent, quality midwifery care.

Thank you.  

Jacqueline Macaluso

10/22/2018

http://narm.org/

http://www.soundoffla.com/?p=1750

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http://copylinemagazine.com/2016/05/18/louisiana-state-board-of-medical-examiners-accused-of-racism-in-firing-of-african-american-employees/

https://www.heritage.org/report/constitutional-constraints-federal-antitrust-law#_ftn46

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https://www.arkansasonline.com/news/2018/oct/06/lawsuit-seeks-to-lift-midwife-restricti-1/

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https://www.ftc.gov/system/files/attachments/competition-policy-guidance/active_supervision_of_state_boards.pdf?utm_source=govdelivery

https://www.newsmax.com/janeorient/ct-lsbme-management-mri/2018/05/09/id/859361/

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http://jmronline.org/doi/abs/10.30770/2572-1852-102.4.7?code=fsmb-site

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https://www.fsmb.org/siteassets/advocacy/publications/2016census.pdf

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