Enforcement of a licensing requirement for people who provide lactation care and services in Georgia is on hold pending the outcome of a lawsuit challenging it.
A provision of a 2016 law that requires lactation consultants to be licensed by the state is set to take effect Sunday. A lawsuit filed Monday by the Institute for Justice argues the requirement would keep unlicensed lactation professionals from being able to do certain things that are required by their jobs and violates their right do their work “free from unreasonable governmental interference.”
The lawsuit was filed on behalf of Mary Jackson, who works at Grady Memorial Hospital in Atlanta and has provided hands-on help for new mothers struggling with breastfeeding for nearly three decades, and Reaching Our Sisters Everywhere, or ROSE, which aims to increase the number of women of color who breastfeed their babies.
It was filed against Secretary of State Brian Kemp, whose office is responsible for overseeing and enforcing the licensing requirement, and other state officials responsible for lactation consultant licensing.
In a joint court filing Thursday, Kemp agreed not to enforce the law against people engaging in “the unlicensed practice of lactation care and services” as defined in the law while the lawsuit is pending, and the Institute for Justice agreed to drop the other officials from the lawsuit, leaving Kemp as the only defendant.
To be licensed by the state, the new provision requires people who provide “lactation care and services” to be certified by the International Board of Lactation Consultants. That involves college-level courses, hands-on training and at least 300 hours of supervised clinical work.
Some people who have been providing breastfeeding support have no certification. Others, including Jackson, are certified lactation counselors, which requires 45 hours of training. The lawsuit argues that many mothers just need some hands-on help to get started breastfeeding but don’t need the clinical help provided by consultants certified by the International Board of Lactation Consultants.
The certified lactation consultants who are eligible for licensure tend to be clustered in major cities, often work in hospitals and are frequently more expensive than other lactation professionals, the lawsuit says. That means women in rural areas and in low-income and minority communities would be disproportionately harmed by the law because they have less access to certified lactation consultants and the other lactation professionals they use would be prohibited from providing certain services, the lawsuit says.
State Rep. Sharon Cooper, who sponsored the legislation, said the state has a right to establish standards and to license professionals. There are important distinctions between different degrees of training and different roles, she said, likening it to the different levels of nursing.
The certified lactation counselors are trained by a company that doesn’t provide any hands-on experience, and while people who get that certification can play an important role in promoting breastfeeding and educating, they aren’t qualified to do more clinical work, Cooper said.
The delay before the licensing requirement took effect was meant to give people a chance to continue their education and get the necessary certification if they wanted to, she said.
Kemp sought guidance from the state attorney general about whether certified lactation counselors could continue doing the work they’ve been doing without a license. In an official opinion dated May 11, Attorney General Chris Carr said it doesn’t appear they would be able to provide what the law describes as “lactation care and services,” including counseling and education on breastfeeding, comprehensive breastfeeding assessments and developing an evidence-based care plan based on assessment and counseling.
Jackson said she wouldn’t lose her job at Grady because of the licensing requirement, but she would no longer be able to do the work she treasures most.
“I wouldn’t be able to continue to do the bedside counseling, which is what I love and is very hurtful,” she said.
NickeySue Christian, 30, really wanted to breastfeed because of all the health benefits for her son Mark, who was born in March 2017. But it was a struggle for her before she connected with a counselor through ROSE.
“If it wasn’t for them, I would have gave up on breast feeding because I was having so many issues with latching on,” she said.
She worries the licensing requirement would keep her from working with the same certified lactation counselor if she has another child.