The 2011 Institute of Medicine (IOM) report “Future of Nursing: Leading Change, Advancing Health” pointed out that because nursing scope of practice regulations vary across states, and because there is little rationale for these variations, the federal government, through the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice, “is well situated to promote effective reforms [related to regulation of APRN scope of practice] by collecting and disseminating best practices from across the country and incentivizing their adoption.”
The IOM recommended that the FTC and the Department
of Justice review existing and proposed state regulations related to advanced
practice registered nurses (APRNs) to identify those that limit competition
without contributing to the health and safety of the public, and urge such
states to allow APRNs to provide care to patients in all circumstances in which
they are qualified to do so.
Created in 1914 to promote consumer protection by eliminating
and preventing anticompetitive, unsafe, or deceptive business practices, the
FTC is the logical agency to address scope of practice laws. The FTC’s
responsibility is to promote competition,
inform consumer choice, and protect consumer safety. All are directly related
to APRN scope of practice regulations, including those mandating physician
supervision and oversight of APRNs when there is not “a compelling consumer
protection rationale” for doing so. That includes evidence justifying
restrictions on APRNs’ ability to provide health care services that could
override the public interests with regard to choice, cost or competition.
Individual states regulate the professional
licensure and practice of registered nurses through state nursing boards or
similar entities (e.g., state boards of medicine). Because boards are entrusted
to uphold larger public interests by establishing and enforcing parameters of
safe nursing practice, boards should base scope of practice on educational and
training standards grounded in best practices and evidence-based outcomes. If a
state regulatory board mandates physician supervision or oversight of APRNs
even when those nurses meet the educational and practice parameters established
by that board, the rationale should be consumer protection. Otherwise, mandating
physician oversight and supervision may limit consumer choice, decrease
competition, and increase health care costs. For example, if physicians refuse
to supervise or meet collaboration requirements, or charge exorbitant fees for
these services, they may prevent APRNs from practicing.
Medical professional groups argue that patient
safety is the primary reason for requiring oversight and supervision, and that
these practices are not anticompetitive and are
in the public interest. They often cite the length of study required to be
licensed as a physician as proof that physicians provide safer care, but there
is no compelling evidence that program length directly affects outcomes, and this
criterion should not be the basis for compulsory physician oversight.
FTC promotes competition and consumer choice and protects
consumer safety through research, education, advocacy and law enforcement.
·
Research, Education, and Advocacy: The
FTC examines the effects of certain practices or legislation (both actual and
potential) on competition and consumer protection. Research findings are
disseminated through the following:
o
Advocacy statements to state
and federal legislators, courts, agencies, regulating bodies and the public. Advocacy
statements may complement other FTC activities such as litigation and studies,
and are cost-effective actions.
o
Workshops and hearings
·
Law
Enforcement: The FTC investigates possible
violations of competition and consumer protection laws. Investigations require
extensive resources and time, eliminate the potential for negotiation, and are
typically used only when other efforts have failed. The courts have been
reluctant to hear hospital and scope of practice antitrust cases. Judges tend
to be deferential to existing practices and reluctant to get involved in hospital
decision-making. To date, the FTC has not taken any legal action directly
relating to scope of practice issues for APRNs, but has participated in
obtaining consent orders and filed an amicus
curae on behalf of nurse midwives. The following are types of enforcement
actions taken by the FTC when violations in the health care sector were found:
o
Consent orders (sometimes referred to as
“cease and desist” orders), which generally instruct respondents on what to do
after they have been found in violation on competition and/or consumer
protection laws
o
Amicus
curiae, or “friend of the court” filings, in which the FTC
weighs in on a case in which they are not a party
The FTC becomes involved with advocacy and policy issues
at the request of state legislators or professional organizations, and through
public comment periods during legislation. To support FTC action, advocates for
expanding scope of practice can:
- Conduct and disseminate state-based empirical research regarding how limiting APRN practice may affect consumers through higher costs or lack of access to services.
- Monitor state regulatory activity and request FTC action before a regulation is established. Once established or while in process of public comment, advocates can inform regulators and legislators.
- Develop strong connections with consumer groups to educate and inform them about scope of practice regulations and the effect an actual or potential regulation may have on their access to high quality health care services. Advocacy statements are most influential (although not necessarily effective in implementing change) when the regulation is directly related to some consumer protection or competition issue such as access to care, and consumer support is mobilized.
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