In recent years, the Federal Trade Commission (“FTC”) has frequently commented on state efforts to either expand, or restrict competition faced by doctors from advanced practice registered nurses (“APRNs”). Generally speaking, there are four broad types of APRNs: (1) certified registered nurse anesthetists (“CRNAs”); (2) certified nurse midwives (“CNMs”); (3) clinical nurse specialists (“CNSs”); and (4) nurse practitioners (“NPs”), or advanced registered nurse practitioners (“ARNPs”). The FTC has commented on bills, regulations, and resolutions affecting the scope of services that APRNs can provide in Alabama (CRNAs), Connecticut (APRNs), Florida (ARNPs), Kentucky, (ARPNs), Missouri (CRNAs), Tennessee (CRNAs), Texas (APRNs), West Virginia (APRNs), and, most recently, Illinois (CRNAs).

The FTC’s initiatives are part of its competition advocacy function; the FTC recognizes that harm to competition can result as effectively from legal restrictions as from private actions. The FTC has consistently argued against restrictions that exclude less costly consumer alternatives to doctors, lawyers, or other higher-priced professionals. The FTC’s input is not always welcome in state and local forums, where doctors and other professionals often exercise strong influence over state legislatures and regulatory bodies.

Not surprisingly, the FTC found bills, regulations, and resolutions written to expand the scope of services that APRNs can provide procompetitive (Connecticut, Florida, Kentucky, Texas, and West Virginia), because they, for example, reduce costs, improve access and choice for patients. For those bills, regulations, and resolutions written to restrict the scope of services that APRNs can provide (Alabama, Illinois, Missouri, and Tennessee), the FTC strongly urged that the bills, regulations, and resolutions be rejected, because they, for example, threatened to raise costs, limit access, and reduce choice for patients. In each instance, the FTC acknowledged that patient safety is the foremost concern, but cautioned that efforts to restrict services should be no stricter than needed to ensure patient safety.

Did the states (Connecticut, Florida, Kentucky, Texas, and West Virginia) where the FTC recommended an expansion in the scope of services that APRNs can provide follow the FTC’s advice? No, or at least not yet. In Connecticut, a March 20, 2013 public hearing on the proposed legislation included testimony with the FTC’s comments; in Florida, the proposed bill was officially noted as having “[d]ied in Health & Human Services Access Subcommittee on Saturday, May 07, 2011;” in Kentucky, the bill was sent to committee; in Texas, the last action noted is a referral to “Finance;” and in West Virginia, the FTC provided testimony in September 2012 supporting legislation to remove restrictions on APRNs before West Virginia Legislature’s Subcommittee A of the Joint Committee on Health.

And, did the states (Alabama, Missouri, and Tennessee) where the FTC recommended rejection of efforts to restrict the scope of services that APRNs can provide follow the FTC’s advice? Not in Missouri and Tennessee. Missouri’s proposed bill was signed into law in June 2012, and became effective August 28, 2012. Tennessee’s proposed bill was signed into law in May 2012, and takes effect on July 1, 2013. Alabama “tabled” its proposed rule in 2010.

So, what will Illinois do? Only time will tell.

With more than 20 full-time antitrust lawyers in our Washington, D.C. office alone (more than 40 firm wide), we have the depth and experience to handle the most significant antitrust litigation and challenging transactions. If you have any questions regarding this post, or would like to learn more about our antitrust capabilities, please contact Jonathan L. Lewis, or 202.861.1557, or Lee H. Simowitz, or 202.861.1608.