Advanced practice registered nurses (APRNs) have long faced situations that restrict their ability to practice and to compete in the health care marketplace. With the ongoing implementation of the Affordable Care Act and millions more people gaining access to health care, there is increased attention on anticompetitive practice and how it might impact access to care. The American Nurses Association (ANA) is making efforts to level the playing field for APRNs.
The Institute of Medicine (IOM) report, The Future of Nursing: Leading Change, Advancing Health, has brought increased attention to the role of the federal government in addressing anticompetitive practices. As part of the first report recommendation to decrease barriers to APRN practice, the IOM recommends that the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice “Review existing and proposed state regulations concerning APRNs to identify those that have anticompetitive effects without contributing to the health and safety of the public.” The report further recommends that “States with unduly restrictive regulations should be urged to amend them to allow APRNs to provide care to patients in all circumstances in which they are qualified to do so.”
The FTC is an independent government agency with a dual mission to prevent unfair methods of competition and to protect the consumer. It has various tools at its disposal, including law enforcement. However, while there are many situations in which practice is restrained, antitrust or restraint of trade claims are very fact-specific, and it is often difficult to prove that an activity fits the legal definition of “restraint of trade.” These cases often take years to conclude and are costly to pursue.
In contrast, the FTC’s competition advocacy function is very cost-effective. At the request of a state legislator, FTC staff will use their combination of legal and economic expertise to analyze the likely impact of a law or regulation on competition and consumers and summarize that impact in an advocacy letter to the legislator. Many of the recent “advocacies” have addressed scope of practice issues. FTC has a long history of involvement in scope of practice issues and it is a high priority for the agency, as it is tied closely to competition and consumer protection functions.
These letters can be found on the FTC website — and can be sorted by date or by subject — at www.ftc.gov/opp/advocacy_date.shtm. Of particular interest to APRNs are a November 2010 letter regarding interventional pain management and certified registered nurse anesthestists in Alabama; a March 2011 letter that addressed physician supervision of advanced registered nurse practitioners in Florida, and a May 2011 letter regarding bills affecting APRNs in Texas. The FTC has also issued advocacy letters regarding limited service clinics, or convenient care clinics (Massachusetts in September 2007; Illinois in May 2008; and Kentucky in January 2010).
When asked about the impact of these letters in the states, James H. Willmann, J.D., general counsel and director of governmental affairs at the Texas Nurses Association, said, “The Texas FTC advocacy letter found the APRN bills filed in Texas permitting APRNs to practice to the full extent of their education and experience would reduce costs and likely improve access and increase choices for Texas health care consumers. Although none of the bills passed, the advocacy letter certainly gave legislators reason to doubt medicine’s assertion that, in opposing the bills, it was acting in patients’ best interest.”
The robust body of evidence supporting the safety and quality of APRN care has been quoted extensively in these letters, as the FTC staff depend heavily on empirical data in its analysis. Another theme in the letters is that they all address potential harm to competition and to consumers, not to the competitors.
In addition to these advocacy letters, the FTC also holds workshops, issues reports and studies, and files amicus curiae (friend of the court) briefs.
The FTC has been open to dialogue with provider groups, such as the Coalition for Patients’ Rights (www.patientsrightscoalition.org), and with ANA’s constituent and state nurses associations. The demand for advocacies is growing, so ANA is appreciative of this continued dialogue. ANA continues to work with the FTC as one of its ongoing strategies to address barriers to APRN practice.
— Lisa Summers is a senior policy fellow at ANA.