Doctors troubled by FTC's role in scope-of-practice issues

Physician leaders are growing increasingly alarmed at efforts by the Federal Trade Commission to weigh in on proposed state legislation regarding clinical roles of nonphysicians, even though most of those efforts have failed.

For instance, the FTC in March wrote a letter to Connecticut lawmakers in favor of a proposal that would eliminate collaborative practice agreements between physicians and advanced-practice registered nurses. The FTC said striking down the APRN requirement probably would lead to improved access to primary care services and beneficial price competition.

Although Connecticut's bill did not make it out of committee, it could be revived later in 2013 with a potential amendment, said Ken Ferrucci, senior vice president of government affairs for the Connecticut State Medical Society.

The FTC letter is an example of the more aggressive approach being taken by the agency in recent years to influence lawmakers on scope-of-practice issues, despite the FTC's lack of expertise, said Steven J. Stack, MD, chair of the American Medical Association Board of Trustees.

“We certainly respect and appreciate [that the FTC] has a role in society to ensure that there are fair and open markets,” he said. But discussions about clinical practice qualifications should be left to “the clinicians in those states, their legislators and their licensure board. There is absolutely no competence [by] the FTC [to determine] who is qualified to practice in what field of medicine.”

But the FTC said it has a long history of engaging in health care competition advocacy as part of its mission to protect consumers.

“The goal of our competition advocacy program, as shown by recent advocacy comments and many others dating to the 1980s, is to provide a framework for thinking about public policy issues from a competition perspective,” FTC spokesman Frank Dorman said in an email. “We urge decision-makers to consider the likely competitive impact of proposed legislation or regulations, how consumers would be affected, what justifications might exist for any restrictions on competition, and whether less-restrictive alternatives would adequately protect consumers and fulfill other policy goals.”

Dorman said FTC staff comments do not offer advice on appropriate standards for patient care and safety. Rather, they encourage legislators to consider carefully the available safety evidence and impose restrictions no stricter than patient protection requires.

Since 2011, the FTC has weighed in on proposed clinical practice changes in at least seven states, including Connecticut. For example, in 2012, the FTC supported bills in Kentucky and Louisiana seeking to remove collaborative practice requirements for APRNs, and the agency opposed a Missouri bill that said only physicians may provide interventional pain management. In 2011, the agency supported legislation in Florida and Texas to eliminate APRN collaborative practice agreements, and it opposed a Tennessee bill aimed at regulating interventional pain management services.

The bills in Florida, Kentucky, Louisiana and Texas failed. The Missouri and Tennessee proposals passed.

Some physicians say the agency's efforts distract lawmakers and promote misinformation.

“In some of those states, lawmakers have read [the letters] from the floor as evidence to allow nurses to practice unsupervised,” Dr. Stack said. “The larger impact is it continues to confuse the legitimate discussion about what it takes to be a qualified health provider to do certain things.”

Physicians confront FTC

In 2012, the AMA sent a white paper to the agency outlining its concerns. AMA officials, including Dr. Stack, also met with FTC officials. The meeting was productive in that the FTC acknowledged it was not qualified to opine on the qualifications of health professionals to perform certain tasks, Dr. Stack said.

However, “they did assert very strongly that they [advocate] allowing more freedom to more clinicians,” he said.

The FTC said it typically provides comments in response to requests from state legislators, and its letters cite medical reports and studies. For example, the FTC has referenced an Institute of Medicine report that says “advanced-practice nurses play a key role in improving access to quality health care services,” Dorman said.

The IOM report, issued in 2010, recommended that states and the federal government work to remove legal barriers that prevent advanced practice nurses from practicing to the full extent of their education and training. The 18-member expert panel specifically called on the government to use agencies such as the FTC to investigate “potentially anti-competitive physician-supervision requirements and expand nurses' independent scope of practice.”

The report has influenced the FTC and potentially has affected its increased interest in clinical practice debates, said Lisa Robin, chief advocacy officer for the Texas-based Federation of State Medical Boards. The federation is monitoring the FTC's involvement in scope issues.

“The federation's concern is that the FTC's expertise is not in patient safety issues,” Robin said. “The decisions that directly [relate] to patient safety should be left up to those regulatory bodies” that oversee such issues.

In addition to a letter-writing campaign, physicians and the FSMB are watching a North Carolina case in which the FTC has taken action against a dental board. In the case, the State Board of Dental Examiners was found to have violated federal antitrust regulations by attempting to stop nondentists from operating teeth-whitening centers.

From 2006 to 2009, the dental board issued cease-and-desist letters to the teeth whiteners, warning them about a state ban against stain removal by unlicensed practitioners. An FTC administrative law judge found that the board's conduct constituted an unreasonable restraint of trade and ordered the board to stop its practices. The board is not exempt from antitrust scrutiny because its members are private professionals who compete with others in the marketplace, the FTC said.

The board appealed, and the case is before the 4th U.S. Circuit Court of Appeals. A decision is expected in June. If the FTC decision stands, the ruling would significantly imperil state regulation of medicine and put the public's health at risk, doctors said.

The FTC declined to comment on the North Carolina case. Previously, the agency said the dental board failed to meet criteria that would exempt it from antitrust scrutiny.

“The board is made up of market participants with no accountability except to their fellow dentists,” said Imad Abyad, an FTC attorney.

Agency expected to continue scope activity

The FTC has an objective point of view that is beneficial during clinical practice disputes, said Andrea Brassard, DNSc, MPH, a professor at the George Washington University School of Nursing in Washington and a senior policy fellow of nursing practice and policy for the American Nurses Assn. (See correction)

“It's very helpful to have a non-nurse and nonphysician, kind of a neutral, weighing in,” she said. “The FTC knows that all licensed professionals [are] licensed independently to provide the care we were trained and educated to do.”

Physicians expect the FTC to continue its efforts to affect scope-of-practice decisions. So far this year, more than 250 scope-of-practice bills have been introduced in 47 states.

Meanwhile, the AMA will continue to send letters to legislators in opposition of inappropriately expanding the practice rights of nonphysicians, Dr. Stack said.

“We are not trying to insult or offend nurses and other clinicians who are very capable and do good work,” he said. “We do assert that the massive difference in years and type of education that physicians have is there because it's necessary for patients to get necessary medical care.”