The FTC Weighs in on Recent State Efforts to Promote/Hinder Healthcare Competition From APRNS

by BakerHostetler

In recent years, the Federal Trade Commission (FTC) frequently has 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: certified registered nurse anesthetists (CRNAs); certified nurse midwives (CNMs); clinical nurse specialists (CNSs); and 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, Connecticut, Florida, Kentucky, Missouri, Tennessee, Texas, West Virginia and, most recently, Illinois.

The FTC’s initiatives are part of its competition advocacy function where the agency recognizes that harm to competition can result as effectively from legal restrictions as from private actions. The FTC has argued consistently against restrictions that exclude less costly options for consumers to doctors, lawyers or other higher-priced professionals. The FTC’s procompetition 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, West Virginia, Kentucky, Texas and Florida), 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.

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

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

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

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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