Why is That IBCLC Licensure Lawsuit in Georgia Such a Big Deal?

June 2023 update: The Georgia Supreme Court just put a fork in it. The law on 31 May 2023 was declared unconstitutional and will be thrown out. Full decision here.
March 2022 update: This law has been ruled unconstitutional

Update to the legal saga:
The Georgia State Supreme Court’s *unanimous* decision in May 2020 (keeping alive the legal challenge to the GA IBCLC licensure law) was a *good* one. As explained by the attorney who argued the case: “Women have been helping other women learn how to breastfeed for millennia,” said IJ attorney Jaimie Cavanaugh. “The state cannot constitutionally require a license ***this onerous*** for an occupation this straightforward.” (emphasis is mine.) To learn more, see this article from the lawyers arguing the constitutional law issues.

This law is poorly drafted. It marginalizes long-standing, successful, community-based support for lactating families by allowing ONLY IBCLCs or otherwise-licensed health care providers to be *paid* to give such care. Breastfeeding educators, counselors, and peer supporters, who have been happily compensated for their time caring for families, need the IBCLC license under the current law. Or must offer their services as volunteers, only.

I hope the next stage of the legal challenge to this law results in fairer language, fairer results, and fairly-compensated care in community, by community, and for community.
————————————-
My original blog starts here:

This blog is longer than most. But stick with me, if you think licensure for IBCLCs is the bee’s knees.

Individual IBCLCs, and the United States Lactation Consultant Assn, have been pushing, long and hard, and in many states, for licensure. As of June 2018, four states have enacted laws to trigger licensure within their borders. A handful more are closing in on passage. The notion — one that has been offered by the profession for a couple of decades — is that licensure will help to cement the credibility of IBCLCs. We will have respect as the skilled clinical lactation care providers that our IBCLC certification declares us to be. It will allow for faster-easier-better reimbursement for services by the behemoth insurance companies, that will authorize payment once they see that IBCLC license, the square peg required to fit into their square hole (ka-ching!).

The Georgia IBCLC licensure law, and its administration at the state licensing board level, does have serious flaws in it. Scheduled to go into effect July 1, 2018, a petition was filed in court to stop the law in its tracks.

UPDATE 28 June 2018: The court published a “Joint Stipulation” effectively putting a FREEZE on implementation of this law. While the lawsuit on the constitutionality of the law wends its way through the Georgia court system, folks can continue to apply for IBCLC licenses; non-IBCLCs can continue to provide clinical care for pay. This is a good result, for now.

Let us ignore for the moment the YEARS of hard work, and burned bridges, and impact of race- and class-based marginalization of members of the African American breastfeeding support community in Georgia, that were part of the painful passage of this law.

Let us pretend this law was passed by a harmonious group of collaborators, joined in a collective effort to ensure families get easy access to all levels of care, and that the public health safety and welfare are protected by the Georgia IBCLC licensure law.

The language of the law (at GA Code Sec. 43-22A-1 et seq.) sez:
(1) You must have a license to do lactation consulting/breastfeeding support work in Georgia
(2) You must be an IBCLC to get a license
(3) You are EXEMPT from the requirement of getting a license to do lactation consulting/breastfeeding support (at GA Code Sec. 43-22A-13) IF you fall into one of several (fairly sensible) categories, like:
(a) You are already a licensed healthcare provider, or childbirth educator, or doula
(b) You work for a governmental program like WIC
(c) You are an IBCLC student/intern
(d) You are a VOLUNTEER breastfeeding supporter

Which means:
(1) IF you are CURRENTLY providing excellent community-based clinical care, such as that by a ROSE Community Transformer, or a CLC, or a CLE, or a CBC, or Any Other Bunch O’ Initials, and
(2) IF you are staying beautifully within your scope of practice, as MOST counselors do (despite outliers who do not, and to nowhere NEAR the degree of wretched over-stepping of practice that some IBCLCs would have us believe), and
(3) IF you were making a modest, honest, decent buck doing this — because families needing breastfeeding help shouldn’t have to “rely on the kindness of strangers” and community-based helpers shouldn’t have to do this work for free,
(4) THEN you are out of a paying job as of July 1, because you will be seeking fair compensation for the clinical breastfeeding support and care you provide, which pulls you under the law, which brings us back to the paragraph above, at square one. ‘Course, I suppose you could risk it, and keep on working, and keep on getting paid. But oops THAT subjects you to [edited for correction] sanctions by the licensing board (with a hat tip to SELCA for its fact-checking for me!) if you are caught: it can include a cease-and-desist [from practicing without a license] order and fines of up to $500 per day while in violation. (Georgia Code Sec. 43-1-20.1, General Provisions for Licensing Boards). Which will definitely “go on your permanent record.”

Which is a perfect seque to what a “permanent record” is all about.

Let’s pretend the law itself is not problematic; does not deny the right to provide counseling care to lactating/human milk using families (for pay); is a paragon of legislative drafting and fair implementation. The licensing process itself has warts all over it.

Because now that the law is passed, we’re at the stage where where full-fledged IBCLCs must fill out the application, pay their fee, and get their license. Yippee! The language of the **application** that each intended-licensee must fill out is severely prejudicial, denies civil rights, and unfairly and disproportionately impacts IBCLCs of color. One example: one of the first to file, an African American RD IBCLC practitioner of many years, initially had her application HALTED. Why? Her fingerprints were flagged during the licensing board’s criminal background check. The circumstances? In 1989 the IBCLC’s husband was arrested for shoplifting, in a Georgia store, having picked up a ball point pen at the counter to write something. He was dragged to a back room, and his wife — alarmed and scared — tried to follow, triggering her own arrest for criminal trespass. Their cases were so laughably unjust that they were thrown out, by the courts, in 1989. And yet, the taking of the fingerprints, during the unjust arrest, continues to haunt. We KNOW in 2018 that folks of color are unfairly scooped into the civil and criminal justice system, for unmerited reasons. And have been, for decades. How many white IBCLCs will find their licenses rejected for such ludicrous miscarriages of justice 29 years in their past? The systemic racism is made obvious because an IBCLC of color now has to take the time, and money, and lawyer up, and dig through paper work from 29 years ago, and file an appeal, and show people that she is an excellent, honest, forthright person who just wants to **continue** working to help families breastfeed/access human milk, which is what she was showing them when she filed her license application in the first place. Extra hassle, no doubt embarrassment, triggering awful memories of the arrests. HE WAS USING A STINKING PEN, PEOPLE. HE HADN’T EVEN LEFT THE PREMISES. AND SHE WAS CALLING OUT THIS MISCARRIAGE OF JUSTICE. (Note: After jumping through these extra hoops, the practitioner did have her IBCLC license issued. Hooray! A happy result! But at what cost to her? And, how many folks would have thrown their hands up at the HALT stage and said, “I just can’t do this”?)

The IBCLC licensing application in Georgia [edited for correction with a hat tip to SELCA for fact-checking for me!] was MUCH more onerous in its requirements (as posted on the Secretary of State’s website) in April of 2018, compared to other healthcare provider license applications for the state. With a hat tip to Jada Right IBCLC for her succinct summary of the issue: “The background check calls for fingerprints, yes, [N.B.: that is pretty standard fare for licenses]. But it also asks that an applicant disclose ALL of the times when any arrest has been made, under any circumstance, regardless of the age or outcome. So, if something has been dismissed, expunged, sealed, or the like, it must be disclosed. Not disclosing any of those could lead to the denial of the application. [M]any background checks will exclude traffic violations, or will specifically ask for convictions. This goes further, and asks for arrests, which could be for something like an expired tag… especially if you’re Black. This could be for officers responding to a domestic violence call, and deciding to arrest both parties… which happens more often to Black women. It could be for participation in a civil rights rally… and so on… ”

The application as it is available in June of 2018 has been tweaked from its April 2018 language. Yippee, and thanks again for that fact-check, SELCA. And the improvement comes, no doubt, thanks to the, um, consciousness-raising by ROSE and other community-based breastfeeding helpers, in April 2018; see discussion of the application language as it existed then, here. Technically, that overly-broad “any arrest” language from the IBCLC license application is out … and now IBCLC license applicants (like all healthcare license applicants) must ‘fess up to “all ****felony convictions**** [emphasis mine] and discipline by other regulatory boards.” MUCH better!

But the June 2018 language is still obtuse, and subject to varying interpretation, so the scramble to fix the worst errors probably wasn’t enough. In full, the licensure application paragraph of concern now says:

“5. Applicants are required to disclose all felony convictions and discipline by other regulatory boards. If you have ***ever*** [emphasis in original] been arrested or disciplined by any other regulatory board or agency please provide a certified copy of the official documents showing the final disposition of the incident as well as a personal, detailed letter of explanation regarding each incident. To avoid processing delays please submit all documentation as part of your application packet.”

Well, Hmmm. While that first sentence is certainly an improvement over the April 2018 version (“…required to disclose ***all previous arrests*** [emphasis mine] and discipline ….”), we still have that concerning *second* sentence. Because … what are we talking about here? “Arrests” can be made by entities with police powers; licensing/regulatory boards customarily only have the power to enforce via fines/administrative regulation. So, if you have diligently disclosed all your felonies per sentence one, do you now have to disclose all arrests (misdemeanors, felonies, busted for underage drinking 45 years ago, what have you) pursuant to that second sentence?

Ya know what? This is exactly what judicial interpretation was made for! Good thing ROSE, et al. filed this lawsuit, and all the original defendants stipulated [legally agreed] that the case should go forward, precisely so we will have a definitive answer, in Georgia, about whether this licensing law and its administrative regulations do what they were intended to do, without compromising civil rights or the Constitution in the process. I continue to contend this law has many holes in it, and is the product of such a long and slogging fight that Lactation Land in Georgia may never recover. No one files a lawsuit lightly. It took a lot to drive the plaintiffs to this stage, and their arguments have merit. One may disagree with them; indeed the judge may ultimately disagree with them. But this is not a specious lawsuit, and the court has said so by agreeing on 28 June 2018 to hear the underlying case.

And this all begs the question: Who in the heck thinks any license, waived high over their head by an IBCLC, will now instantly generate credibility, job offers, insurance company cooperation, money in the bank? Anything having to do with payment for/coverage of health care services in the USA in 2018 is a humongous pain-in-the-neck. Ask any hospital, doctor, nurse, midwife, speech therapist, dentist, etc etc etc just how easy-peasy it is to see patients, spend quality time with them, have all services fairly and easily covered, and so on. Yeah. Not so much.

I’ve said it countless times: The issue should be about HOW to pay [for lactation care, from counseling on up through skilled clinical care], not WHO to pay [which is what flawed and even better-than-most licensing bills necessarily must focus on].

And the only opinion that really matters, my bloviating notwithstanding, is that of the court that will hear the lawsuit about whether or not this licensing law, in its present form, should stand.
original 27 June 2018
Edited 28 June 2018
Edited 30 June 2018
Edited 18 May 2020
Edited March 2022
Edited 1 June 2023