Client Alert
FTC Supports Expanding Advanced Practices Registered Nurses Authority But Raises Antitrust Concerns Over License Board Composition
March 13, 2020
By:
The FTC recently weighed in on two significant pending healthcare bills advancing through the legislatures in Ohio and Kansas. Both pieces of legislation seek to expand the scope of practice of Advanced Practice Registered Nurses (APRNs), primarily by eliminating the requirements of collaborative practice agreements. Additionally and perhaps most notable, the proposed Kansas bill would shift regulatory control of APRNs from the Kansas Board of Nursing to the physician-controlled Kansas Board of Healing Arts.
Ohio House Bill 177 and Kansas House Bill 2412 both propose eliminating the requirement of a formal written agreement with a licensed physician as a general precondition of APRN practice, opting to allow APRNs to independently provide primary care services in accordance with their education and certification. In addition, both states’ bills would allow APRNs to prescribe drugs and therapeutic devices, removing the requirement of a collaborative agreement with a physician to do so.
In its written comments, the FTC expressed support for expanding the scope of practice of APRNs by eliminating written collaborative practice agreements for several reasons. First, independent practice by APRNs may protect patients by improving access to healthcare. Citing a 2014 FTC staff policy paper, Policy Perspectives: Competition and the Regulation of Advanced Practice Registered Nurses, the FTC opined that state-mandated supervision of APRN practice raises competitive concerns and may impede access to care, especially in rural and underserved areas. Expanded APRN practice, conversely, would potentially alleviate provider shortages in areas where access to primary care is limited. Second, the FTC argued that reducing or eliminating regulatory hurdles in APRN practice will lower overall healthcare costs for patients and third-party payors. Third, the FTC suggests that rigid supervision of APRNs and collaborative practice requirements stifle innovation by discouraging new models of collaboration and team-based care. Removing such requirements may facilitate experimentation with delivering care across different facilities and settings. For these reasons, the FTC strongly supported the expansion of scope of APRN practice set forth in both Kansas H.B. 2412 and Ohio H.B. 177.
Despite its support for reducing restrictions on the practice of APRNs, the FTC opposed the Kansas legislation’s attempt to shift oversight of APRN practice and prescribing to the Board of Healing Arts, which is primarily controlled by physicians. Despite its recognition of the State’s prerogatives in designating regulatory oversight for healthcare professionals in Kansas, the FTC suggested that shifting authority to regulate APRN practice to a board controlled by medical physicians raises concerns about potential biases and conflicts of interest. Specifically, the risk of a physician-controlled Board making decisions that serve the private economic interests of its members may deter competition. A similar issue was addressed in 2015 by the Supreme Court in North Carolina State Board of Dental Examiners v. FTC. In that decision, a dentist-dominated board sought to exclude non-dentists from providing teeth-whitening services. The issue in the case related to whether an independent regulatory board could raise a defense to federal antitrust allegations. However, the Court also addressed the concern that professional biases could cause one group of professionals to exclude another based on financial incentives. Referencing the Supreme Court’s opinion, the FTC did not support the shift in regulatory oversight proposed in Kansas H.B. 2412.
Both Ohio H.B. 177 and Kansas H.B. 2412 are currently in Committee. We will continue to follow and report on any new legislative developments. In the meantime, please contact GKG Law Principal Richard Bar (rbar@gkglaw.com / (202) 342-6787) with any questions.