Reassessing Restrictions on Scope of Practice
FTC’s Gilman on the future of nursing regulations
In last week’s LDI seminar, Dan Gilman, JD, PhD drew insight from his extensive work for the Federal Trade Commission to discuss the effects of nursing regulations on competition, which also was the topic of a seminal paper he wrote with LDI Senior Fellow Julie Fairman. Dr. Gilman opened with reflections on the FTC’s prior work on dentistry regulations. When the state of South Carolina eliminated the requirement that dentists examine a child before dental hygienists could provide preventive dental care in schools, the South Carolina Board of Dentistry reimposed the rule; the FTC challenged the board on the grounds that its action unreasonably restrained competition, and the complaint was ultimately settled with a consent agreement. Identifying common threads between this case and the discussion on nurses’ scope of practice, Dr. Gilman followed up with questions of “Who can offer what services?” and “Who regulates whom?”
According to Dr. Gilman, the reassessment by states of nursing licensure is part of broader nationwide licensing reform, as today, over 800 occupations require licenses in at least one state, and 65 occupations require licenses in all states. He cited concerns that nursing regulations act as barriers to market entry, and that they also may negatively affect the supply and distribution of health care services, thereby affecting health care access and costs. Moreover, regulations limit the flexibility of health care teams to try out different models for health care delivery.
A common concern about expanding nurses’ scope of practice is patient safety. Dr. Gilman reflected on another dentistry case that purported to be about safety: the North Carolina State Board of Dentistry sought to regulate teeth whitening services by non-dentists because it was unsafe and “an unlicensed practice of dentistry”—even with teeth whitening products being purchased over-the-counter. In that case, the FTC filed a complaint, and the US Supreme Court eventually ruled against the Board of Dentistry. Dr. Gilman noted that data indicate that advance practice nurses can practice safely at the top of their license.
Commenting on the way forward for nursing regulations, Dr. Gilman called attention to the decision by the Department of Veterans Affairs to allow Advanced Registered Nurse Practitioners to practice at the top of their license without physician supervision. This model has been adopted in over 20 states so far, with no reported adverse effects on the costs and quality of care. Dr. Gilman also mentioned that the federal government has the ability to lift regulations; however, doing so likely would be met with pushback—especially by providers whose interests are at risk. The FTC’s advocacy can often “prevent anticompetitive harms that may result from regulations” even without resorting to enforcement actions.
As Dr. Gilman suggested, in state regulators’ current bottom-up approach to regulations, which starts with barriers to entry, it seems worthwhile to ask the questions, “Do regulations address demonstrable and substantial risk?” and “If so, are they efficient—narrowly tailored to address harm, more efficient than the alternatives, and with a net consumer benefit?” Since, in cases where nurses’ scope of practice has been expanded, the potential benefits seem to outweigh the potential harms for consumers, perhaps state regulators’ reassessment of restrictions on nurses’ scope of practice has come not a moment too soon.
Dr. Gilman’s views are his own and do not necessarily reflect the views of the Federal Trade Commission or any individual Commissioner.