Scope of practice expansions fuel legal battles

Physicians combat legislative and regulatory actions they say infringe on the practice of medicine and endanger patient safety.

By Amy Lynn Sorrel — Posted March 9, 2009

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Physicians are going to court to fight what they call an onslaught of scope of practice expansions by a growing number of allied health professionals.

Increasingly, the medical profession is mounting legal challenges against state boards and others on issues such as nurse anesthetists performing interventional pain management and podiatrists being allowed to treat ankles as well as feet.

"There is this overall push by allied health professionals to try to increase their scope of practice, and what's landing people in the courts is when they actually meander outside of their scope into areas considered the practice of medicine," said Timothy Miller, the Federation of State Medical Boards' senior director of government relations and policy.

Miller said he has noticed a slight uptick in such legal battles as more allied health professionals seek change, often by turning to their state legislatures or regulatory boards. The disputes come as nonphysicians nationwide are pushing for more than 100 bills related to scope of practice, according to American Medical Association research.

But in many cases physicians warn that allied professionals are overstepping their bounds without appropriate medical expertise. That puts patients at risk, said AMA Board of Trustees Chair Joseph M. Heyman, MD. The Litigation Center of the American Medical Association and State Medical Societies has supported physicians in many recent scope legal battles.

"Nonphysician health care providers serve a vital role on a physician-led health care delivery team," Dr. Heyman said in a statement. "However, the health and safety of patients is threatened when health care providers are permitted to perform patient care services that are beyond their level of education and training."

Rather than go to medical school, "the easiest way to [achieve scope expansions] is to go to the Capitol," said Jeffrey Howell, general counsel to the Missouri State Medical Assn.

That's what happened in 2007, when certified professional midwives in Missouri succeeded in passing a state law allowing them to practice independently, he said. The MSMA, along with several other state physician groups, waged a constitutional challenge, but the Missouri Supreme Court in 2008 ruled that the medical organizations did not have standing to sue.

Using other tactics

When legislative avenues fail, allied health professions increasingly seek expansions through their regulatory boards, physicians said.

The Texas Medical Assn. is engaged in legal disputes with the state's podiatrists, chiropractors, and marriage and family therapists, whose boards adopted regulations to include surgical, diagnostic and other services that physicians say tread into the practice of medicine.

The Louisiana State Board of Nursing has asked the state Supreme Court to uphold a board rule allowing certified registered nurse anesthetists to perform interventional pain management procedures. State anesthesiologists challenged the regulation, and an appeals court in December 2008 found it violated state laws governing medical practice. The Louisiana State Medical Society is monitoring the case.

Nonphysician boards contend that they are within their regulatory authority. But physicians say the moves are illegal.

"A state agency is a creature of statute, so it cannot do more than what the statute says," said TMA General Counsel Rocky Wilcox. "These state agencies in Texas and in other states, as well, are attempting to expand their scope without getting the legislature's approval."

When it comes to regulatory actions, physicians' and medical boards' first line of defense typically is to pursue an administrative objection, the FSMB's Miller said. "But if there isn't an agreement and the interpretation of that [nonphysician] board allows an increase in scope, then really the only recourse is the courts."

Some physical therapists are using the courts to gain direct access to patients. The Washington Supreme Court will decide whether state licensure and anti-kickback laws prohibit orthopedic practices from hiring physical therapists and profiting from their services.

Physicians maintain that patients still have a choice and the collaboration is legal. Such cooperation has helped make care more efficient, and without it, "continuity of care would disappear," said Tim Layton, Washington State Medical Assn. general counsel. The organization, as well as the American Academy of Orthopaedic Surgeons, filed friend-of-the-court briefs in the case.

Layton noted that in 2006, physical therapists won a similar case in South Carolina.

The American Physical Therapy Assn. contends that a conflict of interest interferes with patient care decisions when physicians own physical therapy services. The association is monitoring the Washington case.

Access and quality

But allied health professionals don't see such moves as expanding their scope of practice; they say they are within their realm of expertise and authority. Scope changes also can help address access to care, said Len Finnocchio, DrPH, a senior program officer at the California Health Care Foundation.

"These battles are not going away, and the challenge for professions is to accept that we are going to have overlapping scopes in some practices," he said. "We should be using every resource to its optimum to provide health care to everyone possible at the lowest cost possible. And it boils down to: If a professional can demonstrate they have the judgment, competence and skill to provide certain services, they should be able to do that."

For example, Louisiana is the only state that does not consider certain pain management services to be within the scope of practice of nurse anesthetists, despite uniform national educational standards, said Mitchell H. Tobin, senior director of state government affairs for the American Assn. of Nurse Anesthetists. The AANA filed a friend-of-the-court brief in the Louisiana case.

"With an aging population and, by all reports, an underserved population suffering from chronic pain, to say this is an area exclusively carved out for doctors could have a catastrophic impact on patients and the care they receive," Tobin said.

Courts typically evaluate public policy considerations, such as quality and access to care, when interpreting scope laws and rules, the FSMB's Miller said. But expansions should not compromise patient safety, he said. "Access to bad care doesn't really help access to care."

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Scope trials

Scope of practice expansions increasingly are landing in the courts. Here are a few recent cases:

Columbia Physical Therapy v. Benton Franklin Orthopedic Associates Washington Supreme Court, pending
Issue: Whether state licensure and anti-kickback laws prohibit orthopedic surgery practices from employing physical therapists. Oral arguments have not yet been scheduled.

Texas Orthopaedic Assn. v. Texas State Board of Podiatric Medical Examiners Texas Supreme Court, pending
Issue: Whether a podiatric board regulation expands on a state law restricting podiatrists' scope of practice to the foot. An appeals court rejected the rule, which defined the foot to include the ankle. An appeal by the podiatric board to the state Supreme Court is on hold while the board rewrites its rules.

Texas Medical Assn. v. Texas State Board of Examiners of Marriage and Family Therapists Travis County District Court, pending
Issue: Whether a regulation allowing marriage and family therapists to diagnose patients infringes on the practice of psychiatry. The TMA sued the board in December 2008.

Spine Diagnostics Center of Baton Rouge Inc. v. Louisiana State Board of Nursing Louisiana Supreme Court, 1st Circuit, pending
Issue: Whether a nursing board rule allowing nurse anesthetists to perform interventional pain management procedures is valid. The appeals court struck down the regulation, and the nursing board appealed to the state Supreme Court.

Missouri State Medical Assn. v. State of Missouri Missouri Supreme Court, 2008
Issue: Whether a state law allowing certified professional midwives to practice independently is constitutional. The high court ruled that the state medical society did not have standing to sue, leaving the law intact. The court did not address the constitutional issue.

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Pushing for change

Allied professionals continue to pursue legislation in a wide range of scope of practice issues this year. The following is a sample of some state measures under consideration.

Licensure/regulation of lay/nurse midwives: Idaho, Illinois, Indiana, Iowa, Nebraska, New Mexico, Oregon, South Dakota, Virginia, Wyoming

Independent practice/regulation of nurse anesthetists: Illinois, Montana, New York, Oklahoma

Treatment authority of podiatrists to include the ankle: New York, South Carolina, Tennessee, District of Columbia

Independent practice/prescribing authority of physical therapists: Texas, Washington

Diagnosing/prescribing authority of chiropractors: New Mexico, Oregon

Source: American Medical Association

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