The ever increasing demand for primary care services, fueled by an aging population, longer life expectancies and the influx of new enrollees through the Affordable Care Act, presents challenges for our current health care system. Physician shortages, particularly in primary care, have raised concerns about patient access to care. In an effort to address these concerns, there has been a push to educate and train more primary care physicians, with a $230 million investment in medical residency training through the ACA. The expansion of the role of mid-level providers, such as nurse practitioners and physician assistants, has also been promoted as a logical solution to patient access issues. In Pennsylvania, legislation has recently been proposed to grant nurse practitioners independent practice authority. While nurse practitioner advocates are pushing for such independent practice legislation, physician groups have taken issue with this practice expansion, citing the discrepancy in education and training requirements and concerns over safeguarding patient safety through existing collaboration requirements.
Senate Bill 1063, introduced last July by Senator Pat Vance, would amend the Pennsylvania Professional Nursing Law by eliminating the current requirement that nurse practitioners, also referred to as “certified nurse practitioners” or “advanced practice registered nurse practitioners,” work within a collaborative arrangement with a supervising physician. The bill would allow a nurse practitioner to practice as an independent license practitioner limited only as to the scope of practice within a particular clinical specialty area or a particular “population focus.” A nurse practitioner could be recognized as a primary care provider under managed care and other health plans and to be reimbursed directly by insurers and other third-party payors. The proposed law would permit nurse practitioners to perform acts of medical diagnosis and would remove any reference to physician collaboration or the need for a collaborative written agreement with a supervising physician. Nurse practitioners would be permitted to independently prescribe medical, therapeutic or corrective measures so long as he/she is “practicing within a clinical specialty or area of population focus in which the nurse is certified.”
Senator Vance’s bill would authorize the Board of Nursing to issue licensure to nurse practitioners. Those registered nurses who hold current certifications by the Board as a certified registered nurse practitioner would automatically be deemed to be licensed by the Board as a certified nurse practitioner in either the specialty area already registered or in a population focus for which the registered nurse is otherwise qualified. Registered nurses not currently certified by the Board would not qualify for an initial license as a Certified Nurse Practitioner unless that person met the following criteria: current license-holder in Pennsylvania as a registered nurse, is a graduate of an accredited, board-approved master’s or post-master’s nurse practitioner program and current certification as a certified nurse practitioner from a board-recognized national certification program which required passing a national certifying examination in the particular clinical specialty area or population focus in which the nurse is seeking licensure by the Board. Licensure would be subject to biennial review by the Board. In addition to maintaining current certification through a board-recognized national certification program in a particular clinical specialty area or population focus, the certified nurse practitioner would need to complete 30 hours of continuing education in the two years prior to renewal and, for a practitioner prescribing medical, therapeutic or corrective measures, the continuing education requirement must include at 16 hours in pharmacology during that two-year period.
Finally, the bill would permit a certified nurse practitioner to form a professional corporation with other registered nurses or other licensed health care practitioners who provide health care services without receiving a referral or supervision from another health care practitioner. The proposed law would specifically abrogate the requirement that the State Board of Medicine or State Board of Osteopathic Medicine authorize such combined practice of certified nurse practitioners with physicians. Senate Bill 1063 was referred to the Consumer Protection and Professional Licensure Committee on July 19, 2013 where it remains currently.
Reaction to the Independent Practice Legislation
Proponents of the proposed legislation point to the shortage of primary care providers and the need to provide access to an influx of new patients who will obtain health care coverage under the Patient Protection and Affordable Care Act. They argue that allowing the independent practice of nurse practitioners will help to meet the needs of patients. Currently, 17 states and District of Columbia have enacted similar laws permitting nurse practitioners to work independently. The Pennsylvania Coalition for Nurse Practitioners, for example, asserts that nurse practitioners can help meet the demands in primary care where a shortage of physicians can result is delays in access to care. They cite support by the Department of Veterans Affairs in designating nurse practitioners as independent practitioners to meet the demand and caring for veterans.
Physician groups, including the Pennsylvania Academy of Family Physicians and the Pennsylvania Medical Society, have opposed the proposed changes to the law. They argue that the collaborative agreement provides important safeguards for patient safety and vital resources for nurse practitioners when confronted with complex diagnostic, prescription and treatment situations. Physician groups have also stressed the discrepancy between the extensive education and training requirements of a primary care physician versus those of a nurse practitioner (i.e., 11 years of training for family physicians compared to 5-1/2 to 7 years for a nurse practitioner). They contend that the independent practice of nurse practitioners would undermine the ability to deliver team-based care through the patient-centered medical home model.
Recent FTC Report on the Regulation of Advanced Practice Registered Nurses
The Federal Trade Commission (“FTC”) issued a policy perspectives report in March of 2014 entitled “Competition and the Regulation of Advanced Practice Nurses.” In its report, the FTC notes that advanced practice registered nurses (“APRNs”) can play a critical role in “alleviating provider shortages and expanding access to health care services for medically underserved populations.” APRNs, the FTC reports, are “safe and effective as independent providers of many health services within the scope of their training, licensure, certification and current practice” and therefore, mandatory physician supervision may not be justified. “The FTC concludes that an expanded APRN’s scope of practice is good for competition and American consumers. Scope of practice restrictions, such as physician supervision requirements, may, according to the FTC, “hamper APRNs’ ability to provide primary care services that are well within the scope of their education and training.” This restriction to APRN access in the primary care market denies patients, as consumers, and other payors of the competitive benefits that APRNs, as additional primary care service providers, can offer.
Medical Staff / Credentialing Issues
The expanding roles of non-physician practitioners such as physician assistants and certified nurse practitioners raise issues with respect to credentialing and privileging through the medical staff process. The Centers for Medicare & Medicaid Services (“CMS”) recognize the trend toward expanding the role of “mid-level of care” professionals and its importance with respect to expanded access to health care. CMS requires that all non-physicians, including physician assistants and certified nurse practitioners, who are granted privileges at a facility be subject to the medical staff requirements and the conditions of participation. In response to comments in 2012 to its revised Conditions of Participation, CMS strongly encouraged hospitals to include non-physicians with clinical privileges on the medical staff.
Currently, under the Pennsylvania hospital licensing regulations, appointment of non-physicians to the medical staff is not permitted. Such appointment would require an exception by the Pennsylvania Department of Health. With respect to scope of practice of certified nurse practitioners within a hospital or hospital-based clinics, a hospital could require a higher level of physician oversight than is required under state law. Hospital decisions limiting scope of practice for certified nurse practitioners or physician assistants influenced by competition concerns risk scrutiny under antitrust laws.
An expanded role for nurse practitioners, physician assistants and other mid-level providers can lead to improvement in access to care and achievement in cost efficiencies. Changes to licensure and scope of practice rules should not compromise patient safety and quality of care objectives. Access to quality health care services is critical to the success of our health delivery system. In light of the existing primary care shortages, we must continue to work toward developing the right primary care team practice model that both achieves greater patient access and ensures high standards of care.
Anna Bamonte Torrance is a member of the Pittsburgh-based law firm Houston Harbaugh. She focuses her practice in the area of health care law and litigation. She represents physicians and other health care practitioners on licensure, credentialing and medical staff issues. Anna can be reached at [email protected]