H
Federal Options for Maximizing the Value of Advanced Practice Nurses in Providing Quality, Cost-Effective Health Care1

Barbara J. Safriet, J.D., L.L.M.

Lewis & Clark Law School

INTRODUCTION

As decision makers at every level wrestle with the urgent need to broaden access to health care, three challenges have become clear. The care provided must be competent, efficient, and readily available at all stages of life; it must come at a cost that both individuals and society at large can afford; and it must allow for appropriate patient choice and accountability. Among the options available to promote these goals, one stands out: wider deployment of, and expanded practice parameters for, advanced practice nurses (APNs). The efficacy of this option is uniquely proven and scalable. These well-trained providers—including nurse practitioners, nurse midwives, nurse anesthetists, and clinical nurse specialists—can and do practice across the full range of care settings and patient populations. They have proven to be valuable in both acute and primary care roles, and as generalists as well as specialists.2 By professional training as well as by regulatory and financial necessity, they have emphasized coordinated and cost-effective care, and they have tended more than other providers to establish practices in traditionally underserved areas.

The role of any professional group is typically delineated by a process that moves from awareness of capabilities, to acceptance, to acknowledgment and

1

The responsibility for the content of this article rests with the author and does not necessarily represent the views of the Institute of Medicine or its committees and convening bodies.

2

For purposes of this paper, I take it as a given that APNs—like any other appropriately trained and licensed professionals—are able and effective providers within the sphere of their competencies. This has been amply confirmed by numerous studies and analyses over the years, and the literature is readily available.



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 443
H Federal Options for Maximizing the Value of Advanced Practice Nurses in Providing Quality, Cost-Effective Health Care1 Barbara J. Safriet, J.D., L.L.M. Lewis & Clark Law School INTRODUCTION As decision makers at every level wrestle with the urgent need to broaden access to health care, three challenges have become clear. The care provided must be competent, efficient, and readily available at all stages of life; it must come at a cost that both individuals and society at large can afford; and it must allow for appropriate patient choice and accountability. Among the options avail- able to promote these goals, one stands out: wider deployment of, and expanded practice parameters for, advanced practice nurses (APNs). The efficacy of this option is uniquely proven and scalable. These well-trained providers—includ- ing nurse practitioners, nurse midwives, nurse anesthetists, and clinical nurse specialists—can and do practice across the full range of care settings and patient populations. They have proven to be valuable in both acute and primary care roles, and as generalists as well as specialists.2 By professional training as well as by regulatory and financial necessity, they have emphasized coordinated and cost-effective care, and they have tended more than other providers to establish practices in traditionally underserved areas. The role of any professional group is typically delineated by a process that moves from awareness of capabilities, to acceptance, to acknowledgment and 1 The responsibility for the content of this article rests with the author and does not necessarily represent the views of the Institute of Medicine or its committees and convening bodies. 2 For purposes of this paper, I take it as a given that APNs—like any other appropriately trained and licensed professionals—are able and effective providers within the sphere of their competencies. This has been amply confirmed by numerous studies and analyses over the years, and the literature is readily available. 443

OCR for page 443
444 THE FUTURE OF NURSING formal policy making. Despite significant progress in several venues, however, this process has been stymied, in the case of APNs, by the many regulatory ob- stacles and restrictions that currently impede the full realization of their potential. Chief among these, as I have noted elsewhere, are “conflicting and restrictive state provisions governing [APNs’] scope of practice and prescriptive authority… as well as the fragmented and parsimonious state and federal standards for their reimbursement” (Safriet, 1992). While an extensive catalog of these restrictions appears in the section “Current Impediments in the Regulatory Environment,” the following two examples—one state-based and one federal—will perhaps capture the flavor of the problem. • In Louisiana, according to the Board of Medicine, no one other than a physician may treat chronic pain, even if the provider in question is trained as a nurse anesthetist, is competent to treat pain, and has been directed to do so by a physician.3 • Medicare precludes a certified nurse specialist from certifying a patient for skilled long-term care, or from performing the physical required for admission, even though the CNS has been treating the patient on an ongoing basis.4 THE DIMENSIONS OF THE PROBLEM There are several steps that the federal government can and should take to eliminate, or at least mitigate, the wasteful effects of such needless restrictions as these. To approach the task effectively, however, decision makers must (1) understand several contextual factors specific to nursing; (2) be familiar with the extensive array of restrictions that are embedded in state and federal regulations (as well as in private organizations’ policies), and grasp their historical origins; and (3) develop a clear understanding of the impediments—ranging from inertia to resistance to active opposition—to a more rational deployment of APNs. Nurse-Specific Contextual Factors Any effort to design more effective and cost-efficient health care delivery models by maximizing the contributions of APNs must proceed from a basic understanding of several fundamental aspects of our current framework. Among the most important of these are the following. The diversity of nursing practice. “Nursing writ large” encompasses a 1. wide variety of skill levels and roles, and nursing practice routinely takes 3 Louisiana State Board of Medical Examiners: Statement of Position, “Interventional Pain Manage- ment Procedures Are Not Delegable,” June 2006. 4 Social Security Act § 1819(b)(6).

OCR for page 443
44 APPENDIX H place in an almost infinite variety of settings, ranging from the intensive care unit of trauma centers to schools, patients’ homes, prisons, long- term care facilities and nursing homes, community health clinics, and outreach centers. While these diffuse practice settings and roles have no doubt enhanced the nation’s health, the very diffusion and multifaceted nature of nursing practice has often meant that nursing has been slighted in the nascent measurement movement which seeks to apply cost and care-effectiveness standards. Economic invisibility. Nursing services traditionally have been treated 2. as an expense (albeit an essential one) rather than as an individually identified revenue or income source on institutional or governmental balance sheets. And from the patient’s perspective, nursing services rarely, if ever, are separated out from institutional room charges or other professional fees on billing statements. Unsurprisingly, these accounting practices promote the widespread perception that nurses are not “rev- enue generators” (RWJF, 2010). Perhaps in part because of this “revenue invisibility,” nursing has been underrepresented in, or excluded from, the decision-making processes (both private and governmental) that determine the metrics upon which costs, value, pricing, and payment are based. This asymmetrical financial treatment has special salience today, as most reform proposals are focused increasingly on defining the value of services and rewarding the attainment of performance measures. And as APNs continue to participate in, and often lead, the development of innovative practice models designed to better meet patients’ needs, it is essential that payment schemes include complete and accurate measure- ment and valuation of their services. Multiple routes of entry. Nursing is the only profession which has mul- 3. tiple educational pathways leading to professional licensure. In all states but one, successful completion of 2-, 3- and 4-year degree programs is recognized as fulfilling the educational requirements for licensure as a registered nurse (RN). This unique multiplicity of qualifying pathways is supported by some, and opposed by others, in the professional, edu- cational, and policy-making arenas, and it will no doubt continue to be assessed as workforce policy focuses on ensuring an adequate supply of well-prepared nurses. Regardless of how this issue is ultimately ad- dressed, however, the current reality is that 2 years of nursing education meets the educational requirement for licensure as a registered nurse, which is the first step for recognition and licensure as an APN. This fact has posed problems for those who seek to promote wider legal authority for, and utilization of, APNs. Even though master’s-level education and national certification are now uniformly required for APN licensure, 5 5 For a recently adopted uniform framework for APNs, see APRN Consensus Work Group and National Council of State Boards of Nursing APRN Advisory Committee (2008).

OCR for page 443
44 THE FUTURE OF NURSING policy makers and state legislators are sometimes confused about (or susceptible to opponents’ mischaracterizations of) the underlying edu- cational and training requirements when considering expanded recogni- tion of APNs’ scopes of practice. While patience and information can overcome most of these concerns, much time and many resources are consumed in the process. Care versus cure. As some voices in the current reform debates ac- 4. knowledge, our emphasis for far too long has been on curing illness, rather than on promoting health. This has led to a systemic overemphasis on training in acute care, technologically robust settings, and to a pay- ment structure skewed toward procedural interventions by increasingly sub-specialized providers. Perhaps unsurprisingly, we have correspond- ingly undervalued public health. More to the point, we have consistently undervalued coordinated, primary care provided throughout the patient’s life spectrum in a variety of settings, including the community, the home, long-term care facilities, and hospice. As a group, APNs have extensive experience across all these settings. Their traditional approach of blend- ing counseling with clinical care, and coordinating health services as well as appropriate community resources in support of patients, could be a model for policies that seek a more optimal balance of providers prepared to meet the needs of the American public. Regulatory Barriers to the Full Deployment of APNs Current Impediments in the Regulatory Environment For health care providers of all types (other than physicians), the framework defining who is legally authorized to provide and be paid for what services, for whom, and under what circumstances is among the most complex and uncoordi- nated schemes imaginable. It reflects an amalgam of regulations, both prescriptive and incentivized, at the state, local, and federal levels. The effects of these gov- ernmental regulations are further compounded by the credentialing and payment policies of private insurers and managed care organizations. The explicit restrictions resulting from this complex and uncoordinated scheme are many, but they can be grouped into two principal categories: (a) state-based limitations on the licensed scopes of practice for APNs (and other providers) which prevent them from practicing to the full extent of their abilities, and (a) payment or reimbursement policies (both governmental and private) that either render them ineligible for payment, or preclude their being paid directly for their services, or pay them at a sharply discounted rate for rendering the same services as physicians. In many states, the legal framework authorizing APNs’ practices has evolved in step with their expanding skills, education, training, and abilities. In several

OCR for page 443
44 APPENDIX H other states, however, their full utilization is hampered by outdated (or in some cases newly imposed) restrictions on a full range of professional services. De- pending on the jurisdiction, these restrictions may preclude or limit the author- ity to prescribe medications, admit patients to hospitals or other care facilities, evaluate and assess patients’ conditions, order and evaluate tests and procedures, and the like. To illustrate the pervasive and detrimental variations embodied in many state licensure statutes and regulations, consider the following example. Imagine an APN who has attended a nationally accredited school of nursing for the BSN and Master of Nursing degrees, and who has passed the national licensure examination for RN licensure as well as national certification examina- tions in her APN practice area. Imagine further that two adjacent states, A and B, have adopted regulations representing both ends of the regulatory spectrum, and that our APN is licensed in both of them. In State A, she is permitted independently to examine patients, order and in - terpret laboratory and other tests, diagnose and treat illness and injury, prescribe indicated drugs, order or refer for additional services, admit and attend patients in a hospital or other facility, and get paid directly for her services. When she steps across the line into State B, however, it is as if her competence has suddenly evaporated. Depending on her practice area and the particular con- stellation of restrictions adopted by the legislature of State B, she will encounter many if not most of the following prohibitions. Examination and Certification She may not examine and certify for: • worker’s compensation, • DMV disability placards and license plates, and other DMV testing, • jury service excusal, • mass transit accommodation (reduced fares, access to special features), • sports physicals (she may do them, but can’t sign the forms), • declaration of death, • s chool physicals and forms, including the need for home-bound schooling, • COLST, CPR or DNR directives, • disability benefits, • birth certificates, • marriage health rules, • treatment for long-term-care facilities, • alcohol and drug treatment involuntary commitment, • psychiatric emergency commitment, • hospice care, or • home-bound care (including signing the plan of care).

OCR for page 443
44 THE FUTURE OF NURSING Referrals and Orders She may not refer for and order: • diagnostic and laboratory tests (unless the task has been specifically delegated by protocol with a supervising physician), • occupational therapy, • physical therapy, • respiratory therapy, or • durable medical equipment or devices. Examination and Treatment • She may not treat chronic pain (even at the direction of a supervising physician). • She may not examine a new patient, or a current patient with a major change in diagnosis or treatment plan, unless the patient is seen and exam- ined by a supervising physician within a specified period of time. • She may not set a simple fracture, or suture a laceration. • She may not perform: − cosmetic laser treatments or Botox injections, − first-term aspiration abortions, − sigmoidoscopies, or − admitting examinations for patients entering skilled nursing facilities. • She may not provide anesthesia services unless supervised by a physician, even if she has been trained as a nurse anesthetist. Prescriptive Authority • She may not have her name on the label as prescriber. • She may not accept and dispense drug samples. • She may not prescribe: − some (or, in a few jurisdictions, any) scheduled drugs, and − some legend drugs. • She may not prescribe even those drugs that she is permitted to prescribe except as follows: − as included in patient-specific protocols − with the co-signature of a collaborating or supervising physician − if the drugs are included in a specific formulary or written protocol or practice agreement − if a specified number or percentage of charts are reviewed by a collabo- rating or supervising physician within a specified time period − if the physician is on-site with the APN for a specified percentage of time or number of hours per week or month − if the APN is practicing in a limited number of satellite offices of the supervising physician − if the prescription is only for a sufficient supply for 1 or 2 weeks, or provides no refills until the patient sees a physician

OCR for page 443
44 APPENDIX H − if a prescribing/practice agreement is filed with the state Board of Nurs - ing, Board of Medicine and/or Board of Pharmacy, both annually and when the agreement is modified in any way − pursuant to rules jointly promulgated by the Boards named above − if the collaborating or supervising physician’s name and DEA # are also on the script. • She may not admit or attend patients in hospitals − if precluded from obtaining clinical privileges or inclusion in the medical staff, − if state rules require physician supervision of NPs in hospitals, − if medical staff bylaws interpret “clinical privileges” to exclude “admit - ting privileges,” or − if hospital policies require a physician to have overall responsibility for each patient. Compensation • She may not be empanelled as a primary care provider for Medicaid, Medi- care Advantage or many commercially insured managed care enrollees. • She may not be included as a provider for covered services for Workers Compensation. • She may be paid only at differential rates (65%, 75%, or 85% of physician scale) by Medicaid, Medicare or other payers and insurers. • She may not be paid directly by Medicaid. • She may not be certified as leading a Patient-Centered Medical Home or Primary Care Home. • She may not be paid for services unless supervised by a physician. • She may indirectly affect the eligibility of other providers for payment because − pharmacies cannot get payment from some private insurers unless the supervising or collaborating physician’s name is on the script, and − hospitals cannot bill for APNs’ teaching or supervising medical students and residents and advanced practice nursing students (as they can for physicians who provide those same services). As this example illustrates, the restrictions faced by APNs in some states are the product of politics rather than sound policy. Competence does not change with jurisdictional boundaries; the only thing that changes is legal authority. Indeed, the point is even more sharply illustrated by those states in which an APN’s au- thorized scope of practice may vary within the state depending on the geographic location of the practice, the economic status of the patient, or the corporate nature of the practice setting. In sum, this practice environment for APNs echoes the conclusion of a previous Institute of Medicine report, which succinctly described the current regulatory framework for health care providers as “inconsistent, con- tradictory, duplicative, outdated, and counter to best practices” (IOM, 2001). And that disturbingly accurate conclusion was based only upon explicit regulatory

OCR for page 443
40 THE FUTURE OF NURSING provisions. APNs must also contend with the additional debilitating effects result- ing from nursing’s traditional “revenue invisibility,” and from APNs’ absence or exclusion from key decision-making venues such as hospital governing boards and medical staffs and organizations designing quality and cost metrics. The Costs of This Dysfunctional Regulatory Regime Even though APNs, like all health professionals, have continued to develop and expand their knowledge and capabilities, the state-based licensure framework described above has impeded their efforts to utilize these ever-evolving skills. For historical reasons that will be explained more fully below, virtually all states still base their licensure frameworks on the persistent, underlying principle that the practice of medicine encompasses both the ability and the legal authority to treat all possible human conditions. That being so, the scopes of practice for APNs (and other health professionals) are exercises in legislative exception making, a “carving out” of small, politically achievable spheres of practice authority from the universal domain of medicine. Given this process, it is not surprising that APNs are often subjected to unnecessary restrictions of the kind I have described. The net result is a distressing catalog of dysfunctions with their attendant costs. • Because licensure is state-based, there are wide variations in scope of practice across the country for all professions other than physicians. This inconsistency also causes additional problems because payment or reim- bursement mechanisms tied to scope restrictions in one state can become the “common denominator” for policies applied across all states. The re- sult is often a “race to the bottom,” in which decision makers, for reasons of efficiency and uniformity, adopt the most restrictive standards for pay- ment and practice and apply them even in more progressive states. State A, that is, may be subject to perverse pressures to become more like State B, rather than the reverse. This dynamic has been especially problematic for APNs because they, more than most other providers, have been viewed by some in organized medicine as real or potential economic competitors. • Access to competent care is denied to patients, especially those located in rural, frontier, or other underserved areas, in the absence of a willing and available “supervising” physician. • Able providers are demoralized when they cannot utilize the full range of their abilities, and they often relocate to more accommodating states or leave the practice altogether, thus exacerbating the current maldistri- bution and shortage of providers (Huang et al., 2004; Sekscenski et al., 1994; Weissert, 1996). • Innovations in care delivery are stifled, especially in community settings that emphasize primary care, as well as in home or institutional settings for patients with chronic conditions.

OCR for page 443
41 APPENDIX H • The cost of care is increased and much time is wasted by unnecessary physician supervision, and by duplication of services resulting from required “confirming” visits with a physician and co-signatures for pre- scriptions or orders. • Educational and training functions and opportunities are distorted by disparate reimbursement eligibility for supervision of medical residents or students, on the one hand, and APN students on the other. • Flexibility in deployment, both between and within existing delivery systems, is unnecessarily reduced. • The risk of disciplinary action looms over even routine provider–patient interactions (such as a telephone consultation or filling a prescription) when these activities cross state borders. • Millions of dollars and countless hours are spent in state and federal legislative and administrative proceedings focused on restricting or ex- panding scopes of practice or payment policies. • The promise of new technologies and practice modes remains significantly unrealized. Telepractice or telehealth systems, for example, would allow APNs and other providers to utilize telecommunications technology to monitor, diagnose, and treat patients at distant sites, but their use is sty- mied by multiple and conflicting licensure laws and payment provisions. Current Impediments to Removal of These Restrictive Provisions The principal causes of the existence and continuation of unnecessarily re- strictive practice conditions for APNs can be grouped into three categories: (1) purposeful or inertial retention of the dysfunctions resulting from the historical evolution of our state-based licensure scheme, (2) lack of awareness of APNs’ roles and abilities, and (3) organized medicine’s continued opposition to expand- ing the authority of other providers to practice and be paid directly for their services. All of these causes are rooted in the historical evolution of the state- based licensure scheme. The relevance of that history to the current regulatory environment can scarcely be overstated, and it is there that we must begin if we are to understand the present situation. State-based Licensure and the All-Encompassing Medical Practice Acts Historical development The United States was one of the first countries to regulate health care providers, and physicians were the first practitioners to gain legislative recognition of their practice. By the early 20th century, each state had adopted a so-called “medical practice act” that essentially claimed the entire hu- man condition as the exclusive province of medicine. The statutory definitions of physicians’ scope of practice were—and remain—extremely broad. The follow- ing medical practice act is representative.

OCR for page 443
42 THE FUTURE OF NURSING Definition of practice of medicine—A person is practicing medicine if he does one or more of the following: 1. Offers or undertakes to diagnose, cure, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physi- cal or mental, real or imaginary, by any means or instrumentality; 2. Administers or prescribes drugs or medicinal preparations to be used by any other person; 3. Severs or penetrates the tissues of human beings.6 The breadth of definitions such as this was remarkable in itself, but the real mischief was accomplished through corresponding provisions making it illegal for anyone not licensed as a physician to undertake any of the acts included in the definition. The claim staked by medicine was thereby rendered not only universal but (in medicine’s own view) exclusive,7 a preemption of the field that was further codified when physicians obtained statutory authority to control the activities of other health care providers “so as to limit what they could do and to supervise or direct their activities” (Freidson, 1970). Not that long ago, for example, even registered professional nurses could not perform such basic tasks as taking blood pressure, starting an IV, or drawing blood unless under a physician’s “order.” Absent such a directive, they would have been deemed to be practicing medicine by “diagnosing” or “penetrating the tissues of human beings.” (The full reach of the latter provision is further illustrated by the fact that, well into the 1970s, only physicians were permitted to pierce ears.) Present-day consequences: competence, authority, and the disjunction be- tween “can” and “may” Even though some of the more striking manifesta- tions of this “everything is medicine” approach have gone by the wayside, the authority to supervise or direct other providers, combined with the authority to “delegate” medical procedures and tasks to nonphysicians, persists to this day. It underpins the legislative infrastructure that continues to subvert even the best ef- forts to develop a rational, effective scheme that promotes the highest and best use of all trained providers, especially those—like APNs—who seek to practice to the full extent of their competencies. No matter what their training, experience, and abilities, as noted earlier, they are perpetually in the position of having to carve out tasks or functions from the all-encompassing medical scope of practice that still prevails in every state. And even after the carving out has been accomplished, it is often accompanied by mandatory physician supervision or collaboration. In this way, the pervasive medical practice acts “exert a gravitational force that 6 Rev. Code Washington §18.71.011 (1)-(3) (1993). 7 Sociologist Eliot Freidson has aptly characterized this statutory preemption as “the exclusive right to practice” (Freidson, 1970).

OCR for page 443
43 APPENDIX H continues to skew all attempts to rationalize the scopes of practice, or spheres of lawful activity, for providers other than physicians” (Safriet, 2002). To be clear, the medical practice acts of every state authorize a licensed medical doctor to undertake virtually any kind of medical or health intervention. Indeed, by virtue of his General Undifferentiated Medical Practice authority (re- ferred to by the profession itself as GUMP), “an MD may practice gynecology, oncology, orthopedics, pediatrics, retinal surgery, or psychiatry on alternating days, through treatment modalities that are decades old or were invented yester- day—all under the same generic medical license he obtained years ago” (Safriet, 2002, p. 311). Most physicians, of course, would never think of practicing beyond the bounds of their competence, but the point cannot be overstressed that it is not the licensure laws that prevent them from doing so. Rather, they limit their areas of practice according to norms deriving from common sense and decency, profes- sional ethics and judgment, institutional credentialing and voluntary accredita- tion standards, and insurance concerns. That is, as individuals they implicitly acknowledge that their authority extends beyond the reach of their competence: They may do much more than they can competently do. And as they acquire new knowledge and skills, they may deploy them freely under their existing practice acts. Their existing authority, that is, covers any expansion of their competence. Most APNs, in contrast, are in precisely the opposite situation. Thanks to the carving-out process that gave birth to their practice acts, their scopes of practice are so circumscribed that their competence extends far beyond their authority. They can do much more than they may legally do. In addition, they must seek ad- ministrative or statutory revision of their defined scopes of practice (a costly and often perilous enterprise) every time they acquire a new skill set. As a result, their competence—what they can do—is sometimes several years (or more) ahead of what they may do under existing law. The sum total of wasted professional assets represented by this disparity is striking. The damage caused by the dynamic I have described is troubling enough when viewed from the perspective of a single jurisdiction, but it wreaks havoc on a national scale. Why? Because in each state the scopes of practice governing all health care providers (other than physicians) are the end product of a set of political realities, struggles, and compromises particular to that state. Stitched together, these practice acts become a crazy quilt of widely varied, often incon- sistent, sometimes contradictory licensure and payment laws. Although I have made the point already, it bears repeating: the crazy quilt makes no logical sense. Neither the underlying science of health care nor the capabilities of individuals change according to political boundaries. Bodies are bodies, and competence is competence, in both State A and State B. The only thing that changes at the border is the authority conferred or withheld by each ju- risdiction. Indeed, the success of APNs and other providers in providing safe and effective care in State A and its progressive ilk—states where their authority has been enlarged in keeping with their competence—is the best possible evidence

OCR for page 443
4 THE FUTURE OF NURSING at times lasted over a period of years.” In addition, the report noted that the restrictive nature of Massachusetts’s practice parameters may have reduced the supply of NPs available to practice in that state, even if its licensure laws were to be reformed, because many may already have left the state or dropped out of the workforce. “[R]esearch suggests that the supply of NPs is influenced both by scope of practice and reimbursement policies, and that a greater supply is avail- able in states with more expansive scope of practice regulations.” The detailed analysis contained in the RAND report confirms and amplifies the fundamental conclusion reached by an ever-growing cohort of health care policy analysts: many of the most promising efforts to improve our health care delivery system will have to reckon with the debilitating regulatory restrictions currently imposed on providers’ practice parameters. While a fundamental re- structuring of these laws may be long in coming, there are many steps that can be taken now to address some of the well-known, pervasive problems. STRATEGIES FOR CHANGE AT THE FEDERAL LEVEL There is a broad range (in both scope and number) of actions that the federal government could undertake to eliminate, or at least ameliorate, the adverse ef- fects of the many impediments noted above. Some of these actions emphasize uniform national practice standards and parameters, and are therefore perhaps more aspirational in nature. Others are more specific and immediately action- able. Of the latter, some have to do with the federal government’s own policies and agencies, and others are measures that the federal government could take to promote rational policymaking in the states. The Aspirational: What Would an Ideal System Look Like? Rationalizing Education, Licensure, and Compensation If one were charged with the task of designing a logical and effective edu- cational and regulatory framework for the health care workforce, it seems clear that the resulting scheme would include few if any of the most notable features of our current system. It would not, for example, segregate students into profession- specific introductory courses in biology, anatomy, physiology, chemistry, and the like. It also would not presume that all aspects of the healing arts and sciences are within the ambit of any, or surely only one, profession. And given the universal, scientific nature of human physical and mental health, it would not tolerate 50 or more variations in each of the practice parameters for each of the many profes- sional roles, all developed through the lobbying of elected politicians by special interest groups. Finally, it would not pay for services at a rate based entirely upon the licensed status of the provider. In short, it would not replicate the educational, practice, and payment provisions of our current system.

OCR for page 443
4 APPENDIX H Rather, the ideal framework would do the following: • provide for a common curriculum for all health professional students for foundational courses, and include requirements for interdisciplinary training in clinical practice settings; • recognize that the provision of health care entails a range of actions, and regulate those actions based upon the degree of danger and specialized skill involved; • explicitly acknowledge, for tasks that should be regulated, that the com- petence to perform these tasks safely is not profession-specific; • establish appropriately uniform professional standards and practice parameters; • accommodate needed flexibility and evolution in a profession’s practice by utilizing assessment processes in which an appointed, standing com- mittee would review proposals for change and make recommendations for necessary governmental action; and • base payment for covered services on what and how well a service was provided, rather than on who provided it. The Federal Role in an Ideal Scheme The logical consequence of such an approach would be national regulations (including federal licensure or certification, as appropriate) for all regulated health providers, with more uniform educational preparation and scope-of-practice pro- visions for each profession. A variation on this scheme could be what one might call “shared direct licensure,” in which the federal government would establish a uniform scope of practice for each profession, while retaining the current role of state licensure boards in performing credentials evaluation and verification, disciplinary functions and continued competence assessments. A national approach to licensure (either comprehensive or shared with the states) is intuitively appealing. After all, the healing arts, as applied, are organic rather than political or geographic, and there are already many national character- istics and requirements embedded in current systems governing educational ac- creditation, licensure examinations, and professional certification. Unfortunately, notwithstanding the benefits of such an approach, there are undeniably many obstacles to its implementation. Two in particular stand out: (1) the realities of the traditional (though not inevitable) role of the states in health care licensure; and (2) the likelihood that the very same forces that have prevailed in many states would succeed in bringing about a similar result at the national level—that is, in making sure that national standards would embody the most restrictive, rather than the most progressive and empowering, scope-of-practice provisions, thus actually making the situation worse in those states that currently pursue a more enlightened approach.

OCR for page 443
4 THE FUTURE OF NURSING The Here-and-Now: What Immediate Steps Can the Federal Government Take to Promote the Highest and Best Use of APNs? Given these and other realities, perhaps the preferred path for the federal government should be to pursue a more rational regulatory framework by (1) promoting best practices drawn from current domestic and international systems and (2) remedying specific problems that are within its power to resolve. There are a number of steps that could be taken now to advance this agenda. Articulate National Priorities and Raise Public Awareness: the “Bully Pulpit” National priorities Through an Executive Order or other appropriate vehicle, the federal government could declare that the highest and best utilization of health care providers is a national priority, consistent with the goal of promoting wider access to quality care in cost-effective ways. And unnecessary restrictions on providers’ practice scopes distort efficient practice and impede the development of more innovative and effective delivery mechanisms. Public awareness By explicitly identifying the highest and best use of all providers as a national priority, the federal government would also begin to raise public awareness of APNs and other providers and what they can offer. A follow- on public information campaign could provide further detail. Identify, Integrate, and Publicize Best Practices in a Preferred Scope of Practice Framework Building on previous calls for federal action on workforce policies, 27 the administration (through the Secretary of HHS, the Surgeon General, or CMS) could appoint a Health Workforce Commission. The Commission would be charged with: • gathering and analyzing the most progressive regulatory provisions to be found both domestically and internationally28; • producing a “preferred scope of practice framework” for APNs (or all health care providers) that incorporates the least restrictive conditions necessary for safe and effective practice; and 27 See, for example, the Pew Taskforce, the IOM Report, and the AAHC reports. 28 As I and others have noted elsewhere in some detail [see Safriet (2002) and Dower (2008)], many preferred practices could be drawn from the existing framework of the Ontario Regulated Health Professions Act. For a complete description of the evolution and current parameters of that scheme, see http://www.hprac.org/en/.

OCR for page 443
4 APPENDIX H • distributing the model to − state and federal entities responsible for any facet of regulating health providers’ practice or payment for services, and − private entities that utilize or pay for providers’ services (such as commercial insurers and health care facilities), or which establish or review standards for institutional or organizational accreditation. This strategy would promote wider awareness of both the problems of the current system and the existence of achievable, preferred practices. Incentivize the States to Adopt the Preferred Framework Raise awareness and promote rational analysis Pursuant to existing (or, if necessary, supplemental) statutory authority for annual state reports and assess- ments of Medicaid and SCHIP, the Secretary of HHS and/or the Administrator of CMS could require the Governor and/or Director of Medicaid/SCHIP of each state to submit an annual report that: • specifies how any of their state’s health care provider practice acts and regulations impose restrictions not included in the preferred model framework, and • documents the justifications for these continued restrictions. A compilation of these reports could be posted on the HHS and CMS and other appropriate websites and could be distributed to associations such as the National Council of State Legislatures and the National Governors’ Association, as well as to public advocacy groups. Create fiscal incentives A final step in this progression would move from in- creasing awareness of to incentivizing the adoption of the preferred framework. The Medicaid federal match formula could be increased by 0.5 percent for those states that revise their laws to be consistent with the preferred framework, or (perhaps more equitably for those states that have already reformed their laws) the federal match for nonconforming states could be decreased by 0.5 percent. Ensure That APNs Are Visible, and That Their Roles Are Taken into Account To ensure that APNs and nursing in general are “present and accounted for” when counting matters, at least two significant actions should be taken. • The National Center for Health Statistics should confirm that all its Na - tional Health Surveys and resulting statistical and series reports include information on the full range of APNs’ practices and settings.

OCR for page 443
40 THE FUTURE OF NURSING • All federal agencies (CMS, NCHS, HRSA, etc.) should be charged with ensuring that any coding, assessment or benchmark schema used in any federal health care program (or state program receiving federal funds) for payment, performance, accreditation, or forecasting purposes are inclusive and fairly representative of the kinds of providers and practices affected by those schema. A partial list of such metrics would include the Medical Expenditure Panel Survey, HEDIS, CAHPS, CPT codes, performance measures and quality indicator data sets, Joint Commission and National Quality Forum standards, and benchmark tools for feder- ally sponsored pilot and demonstration projects and the like. Monitor for Anticompetitive Behavior The Federal Trade Commission (FTC) should be charged with actively monitoring proposed state laws and regulations specifically applicable to retail or convenient care clinics (or other innovative delivery mechanisms utilizing APNs) to ensure that impermissible anti-competitive measures are not enacted. The need for such monitoring is confirmed by the recent FTC29 evaluations of proposals in Massachusetts and Illinois and Kentucky, which revealed that several such provisions (including limitations on advertising, differential cost-sharing, more stringent physician supervision requirements, restrictions on clinic locations and physical configurations or proximity to other commercial ventures, and limita- tions on the scope of professional services that can be provided which do not apply to the same credentialed professionals in comparable limited care settings) could be considered anticompetitive. Rationalize Professional Education and Training Opportunities and Corresponding Payment Schemes Curriculum The Department of Education should emphasize interdisciplinary curricular opportunities in the criteria used by the National Advisory Committee on Institutional Quality and Integrity in granting continued recognition of nation- ally recognized accrediting agencies for health care education. Graduate-level education for APNs Federal funding for graduate-level, APN education (and educational loan-repayment subsidies) should be expanded. Since the time and cost required for completing APN educational and training require- 29 Letter from FTC Staff to Elain Nekritz, Illinois Legislature (May 29, 2008), available at http:// www.ftc.gov/os/2008/06/V080013letter.pdf; Letter from FTC Staff to Massachusetts Department of Health (September 27, 2007), available at http://www.ftc.gov/os/2007/10/v070015massclinic.pdf. Let- ter from FTC Staff to Kentucky Cabinet for Health and Family Services (January 28, 2010), available at http://www.ftc.gov/os/2010/02/100202kycomment.pdf.

OCR for page 443
41 APPENDIX H ments is less than that for comparable physician providers, some have estimated that an expenditure of $1 billion (of either new funds or those shifted from GME) could lead to a cumulative 25 percent increase in the number of fully qualified APNs over a 10-year period.30 The role of Medicaid and Medicare Medicaid regulations should be clarified to ensure that Nurse-Managed Health Centers and Clinics are eligible for Med- icaid reimbursement. Medicare reimbursement for hospitals should include payment for expanded APN training programs; similarly, reimbursement for APNs’ supervision and training of medical students and residents as well as APN students in hospitals should be made on the same basis as that for physician supervisors. Promote Parity in Recognition and Payment for Services • Medicaid should require states to recognize nurse practitioners and certified nurse midwives as Medicaid Primary Care Case Managers, as opposed to the current provision for “optional” recognition. • If an APN’s services are allowed by state law to be provided autono- mously without supervision by any other provider, CMS should not condition any designation (such as those required for “Centers of Ex- cellence”) or Medicare or Medicaid coverage and payment for those services upon any required supervision. Among other provisions affect- ing APNs, this would require a revision of the current CMS “Opt-Out” regulation31 for conditions of participation for anesthesia services in hospitals, critical access hospitals, and ambulatory surgical centers. Under the current regulation, even in states whose licensure laws do not require physician supervision of certified registered nurse anesthetists, CMS will not pay for an “unsupervised” CRNA’s fully competent and authorized services unless the Governor of that state, after conferring with the Boards of Nursing and Medicine, certifies to the CMS that s/he has found that “it is in the best interests of the state’s citizens to opt-out of the current federal physician supervision requirements, and that the opt-out is consistent with state law.” • CMS should encourage state Medicaid programs to cover health care services provided by retail or convenient care clinics. • Consistent with the comprehensive primary care services they provide to uninsured and vulnerable populations, Nurse-Managed Health Centers 30 LewinGroup, 2009 study. 31 66 FR 56762, 11/13/2001, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_ register&docid=01-1388-filed.pdf. Currently, 15 states have “opted out” of these supervision requirements.

OCR for page 443
42 THE FUTURE OF NURSING should be eligible for the same enhanced reimbursement and support provided by the government to Federally Qualified Health Centers. Undertake Other Available Measures to Improve APNs’ Practice Context While I candidly acknowledge that I am not aware of all of the many authori- zation, payment, or even survey provisions contained in the hundreds of state and federal regulatory measures affecting APNs—and I am not sure that anyone could be—I do know that there are many examples of APNs’ differential treatment or total absence. While policy makers and other public advocates move forward with efforts to remove many of the large-scale impediments resulting from the dynam- ics previously discussed, there are immediate steps that can be taken improve the practice context for APNs. Several specific examples follow: • The CMS should ensure that APN practices, including Nurse-Managed Health Centers, are eligible to receive subsidies under the ARRA of 2009/stimulus funds for adoption of the Electronic Health Records sys- tems currently being developed by the Health Information Technology Policy Committee, or any other HIT initiatives. • The Office of Personnel Management should condition any insurer’s participation in the Federal Employees Health Benefits Program upon verification that APNs’ services (consistent with their full authority un- der state law) are directly accessible by members and are covered and paid for on the same basis as physicians. • Any federally sponsored initiative to promote patient-centered, coor- dinated primary care should incorporate the Institute of Medicine’s definition of primary care, which includes “the provision of integrated, accessible health care services by clinicians who are accountable . . . [emphasis added]” (IOM, 2001). Consistent with this, legislation and implementing rules should assure that any federal pilot or demon- stration initiatives under Medicare or Medicaid promoting primary care (such as “health- or medical-homes”) include APN-led practices and Nurse-Managed Health Clinics as eligible participants. Furthermore, CMS should encourage or require any accrediting organization (such as the National Committee on Quality Assurance) whose assessments and recognition are relied upon in any way for basic or enhanced reim- bursement, to include APN-led practices in their health/medical home standards and processes. • In Medicare legislation and CMS regulations, the terms “physician” and “physician services” should be defined to include APNs’ services when those services are within the APNs’ scope of practice as defined by state law. • Medicare legislation and implementing regulations should authorize

OCR for page 443
43 APPENDIX H nurse practitioners and certified nurse specialists to certify patients for home health services and for admission to hospice, and clarify that they are authorized to certify admission to a skilled nursing facility, and to perform the initial admitting assessment. • Medicare Hospital Conditions of Participation should be amended or clarified to facilitate APNs’ eligibility for clinical privileges and mem- bership on the medical staff. • Nurse-Managed Health Clinics should be included in the regulatory definition of “essential community providers” that will be promulgated pursuant to the section of the Affordable Care Act that creates the Health Benefit Exchanges. CONCLUSION Almost every aspect of health care in the United States is in flux. The cur- rent reform debates include a seemingly endless (and ever-changing) number of proposals intended to reduce costs and improve access to quality health services. At the same time, modes of health care delivery continue to evolve synergistically at a breathtaking pace, with newly discovered biologics and pharmaceuticals, increasingly adept robotic interventions, personalized therapeutics, nanotechnol- ogy, interactive knowledge platforms, and computerized diagnostic and treatment aids that reduce the barriers of time and geography. The end product of these developments is unknown. Health care reform, even when finalized, will not be fully implemented for several years, and the resulting ramifications on the efficiency and effectiveness of the delivery system will not be understood until even later. And the science and technology of health care delivery will continue to evolve. In contrast, there are certain fundamental things that we do know. • The infrastructure necessary for the implementation of any conceivable reforms—and for the application of new assessment and treatment mo- dalities—is deeply flawed, stuck in place and amazingly static. • More specifically, the framework for certifying to the public that an individual trained to provide care can do so competently is profoundly broken for the reasons I have described. • Notwithstanding the larger uncertainties, there are known problems with promising solutions which can be acted on immediately, and which will be helpful now and in the future regardless of the final contours of any reform legislation or further developments in the delivery of care. In sum, the fundamental flaws in the regulatory framework that I have described are real, and they rob us as a nation of the full range of care options that our health care providers are capable of offering. This is particularly true of

OCR for page 443
44 THE FUTURE OF NURSING APNs, who have a proven track record of providing needed care across a range of patient populations and practice settings—and this in spite of the regulatory obstacles with which they have had to contend. Freeing APNs from the unnec- essary constraints I have identified (which are at bottom nothing more than the historical artifacts of medical preemption) will achieve two important objectives. First, it will better enable Americans, wherever they are situated, to receive much- need health services at a cost they can afford. Second, it will begin to remedy the systemic unfairness that has distorted many aspects of the healthcare delivery sys- tem, and will serve as a model for comprehensive reform of our entire regulatory framework by focusing on the evolving ability and competence of all providers rather than on rigid proprietary prerogatives. REFERENCES AAFP (American Academy of Family Physicians). 2010. Colonoscopy (Position Paper). http://www. aafp.org/online/en/home/policy/policies/c/colonoscopypositionpaper.html. AAHC (Association of Academic Health Centers). 2008. Out of Order, Out of Time: The State of the Nation’s Health Workforce. Washington, DC: AAHC. http://www.aahcdc.org/policy/AAHC_ OutofTime_4WEB.pdf. AAP Committee on Pediatric Workforce. 2003. Policy statement on scope of practice issues in the delivery of pediatric health care. Pediatrics 111(2):426−435. AMA (American Medical Association). 1998. Staff privileges E-4.07. In: AMA policy compendium. Chicago, IL: AMA. AMA. 2006. Board of Trustees Report 24—A-0, Subject: Limited Licensure Health Care Provider Training and Certification Standards. http://www.ama-assn.org/ama1/pub/upload/mm/471/ bot24A06.doc Anderson, J. 2009. AAP plans to clarify role of nurse practitioner. Pediatric News 43(4):1. APRN Consensus Work Group and National Council of State Boards of Nursing APRN Advisory Committee. 2008. Consensus Model for APRN Regulation: Licensure, Accreditation, Certifica- tion & Education. https://www.ncsbn.org/7_23_08_Consensue_APRN_Final.pdf. ASA (American Society of Anesthesiologists). 2004. The Scope of Practice of Nurse Anesthetists. http://www.asahq.org/Washington/nurseanesscope.pdf. Dower, C. 2008. Pulling regulatory levers to improve health care. In From Education to Regulation: Dynamic Challenges for the Health Workforce, edited by D. E. Holmes. Washington, DC: As- sociation of Academic Health Centers. Eiber, C. E., P. S. Hussey, M. S. Ridgely, and E. A. McGlynn. 2009. Controlling Health Care Spend- ing in Massachusetts: An Analysis of Options. Santa Monica, CA: RAND Corporation. www. rand.org. Engelberg Center for Health Care Reform at Brookings. 2009. Bending the Curve: Effective Steps to Address Long-Term Health Care Spending Growth. Washington, DC: The Brookings Institution. Finocchio, L. J., C. M. Dower, N. T. Blick, C. M. Gragnola, and the Taskforce on Health Care Workforce Regulation. 1998. Strengthening Consumer Protection: Priorities for Health Care Workforce Regulation. http://futurehealth.ucsf.edu/Public/Publications-and-Resources/Content. aspx?topic=Strengthening_Consumer_Protection_Priorities_for_Health_Care_Workforce_Reg- ulation. Freidson, E. 1970. Profession of Medicine: A Study of the Sociology of Applied Knowledge. Chicago: University of Chicago Press.

OCR for page 443
4 APPENDIX H FSMB (Federation of State Medical Boards). 2005. Assessing Scope of Practice in Health Care De- livery: Critical Questions in Assuring Public Access and Safety. Dallas, TX: FSMB. http://www. fsmb.org/pdf/2005_grpol_scope_of_practice.pdf. Health Affairs. 2009. Beware the Siren Song of New GME: Graduate Medical Education and Health Reform. http://healthaffairs.org/blog/2009/06/15/beware-the-siren-song-of-new-gme-graduate- medical-education-and-health-reform/. Hewitt Associates. 2009. Health Care Reform: Creating a Sustainable Health Care Marketplace, a Report to Business Roundtable. http://www.hewittassociates.com/intl/na/en-us/KnowledgeCen- ter/ArticlesReports/ArticleDetail.aspx?cid=7578. Huang, P. Y., E. M. Yano, M. L. Lee, B. L. Chang, and L. V. Rubenstein. 2004. Variations in nurse practitioner use in Veterans Affairs primary care practices. Health Services Research 39(4 Pt. 1):887. Hussey, P.S. C. E. Eibner, M. S. Ridgely, and E. A. McGlynn. 2009. Controlling U.S. Health care spending—separating promising from unpromising approaches. New England Journal of Medi- cine 361(22):2109−2111. IOM (Institute of Medicine). 2001. Crossing the Quality Chasm: A New Health System for the 21st Century. Washington, DC: National Academy Press. Mirvis, D. M. 1993. Sounding board: Physicians’ autonomy—the relation between public and profes- sional expectations. New England Journal of Medicine 328:1346−1347. NACHC (National Association of Community Health Centers). 2009. Access Transformed: Building a Primary Care Workforce Strategy for the 21st Century. http://www.nachc.com/client/docu- ments/ACCESS%20Transformed%20full%20report.pdf. NASHP (National Academy for State Health Policy). 2009. Analysis of State Regulations and Policies Governing the Operation and Licensure of Retail Clinics. www.nashp.org/Files/retailclinics. pdf. NCSBN (National Council of State Boards of Nursing). 2007. Changes in Healthcare Professions’ Scope of Practice: Legislative Considerations. https://www.ncsbn.org/ScopeofPractice.pdf. Pearson, L. 2009. The Pearson Report. The American Journal for Nurse Practitioners 13(6). RWJF (Robert Wood Johnson Foundation). 2010. Nursing Leadership from Bedside to Boardroom: Opinion Leaders’ Perceptions. Gallup Survey for the Robert Wood Johnson Foundation. http:// www.rwjf.org/files/research/nursinggalluppolltopline.pdf. Safriet, B. J. 1992. Health care dollars and regulatory sense: The role of advanced practice nursing. Yale Journal on Regulation 9:417−440. Safriet, B. J. 2002. Closing the gap between can and may in healthcare providers’ scopes of practice: A primer for policymakers. Yale Journal on Regulation 19:301−334. Sekscenski, E. S., S. Sansom, C. Bazell, M. E. Salmon, and F. Mullan 1994. State practice environ- ments and the supply of physician assistants, nurse practitioners, and certified nurse-midwives. New England Journal of Medicine 331:1266−1271. Starr, P. 1982. The Social Transformation of American Medicine. New York: Basic Books. Weissert, C. S. 1996. The political context of state regulation of the health professions. In The U.S. Health Workforce, edited by M. Osterweis, C. J. McLaughlin, H. R. Manasse, Jr., and C. L. Hopper. Washington, DC: Association of Academic Health Centers.

OCR for page 443