May 3 2013
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A Broader Role for the Federal Trade Commission in Regulating APRN Nursing Scope of Practice

Julie A. Fairman, PhD, RN, FAAN, is Nightingale Professor of Nursing at the University of Pennsylvania School of Nursing, and director of the Barbara Bates Center for the Study of the History of Nursing. She is a predoctoral fellow at the Penn Nursing Center for Health Outcomes and Policy Research and recipient of an RWJF Investigator Award in Health Policy Research. Safiyyah Okoye, BSN, RN, and Jill Vanek, BSN, MSN, are students at the University of Pennsylvania School of Nursing.

file Julie Fairman

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.

file Safiyyah Okoye

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.

1. 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:

  • Studies and Reports
  • 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.
  • Workshops and hearings

2.  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:

  • 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
  • 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.

Tags: Health care delivery system, Human Capital, Nurses, Nursing, Scope of practice, Voices from the Field