Physicians Look to Disrupt Longtime Regulatory Tradition for APRNs

Physicians Look to Disrupt Longtime Regulatory Tradition for APRNs

Nicole Livanos, JD, MPP
State Advocacy Associate, Nursing Regulation, National Council of State Boards of Nursing, Chicago, IL.
DOI: http://dx.doi.org/10.1016/S2155-8256(17)30161-8

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In June 2017, at the American Medical Association’s (AMA’s) House of Delegates meeting, an amendment to a resolution impacting regulation of advanced practice registered nurses (APRNs) failed by a margin of 254-204, exposing not only a divide among AMA delegates, but a growing and continuing threat to the autonomy of APRNs (Basen, 2017). The amendment called for placing “APRNs under state medical board and regulatory control, with AMA developing model state legislation” (Basen, 2017). The underlying resolution was a measure opposing physician assistants from creating their own regulatory boards (AMA, 2017). The amendment pertaining to APRNs stated that “AMA will adopt policy that APRNs are subject to the jurisdiction of state medical licensing and regulatory boards for the regulation and discipline of APRNs in their performance of medical acts and that AMA will develop model state legislation in support of states to accomplish this policy” (American Association of Physician Assistants, 2017). The physician assistant measure, however, was successful (American Association of Physician Assistants, 2017). The AMA House of Delegates discussion mirrors legislative efforts by medical societies across the country. Even without AMA-sanctioned model legislation, physician groups have been advocating for moving regulatory authority over APRNs to state boards of medicine (BOMs) from boards of nursing (BONs), where these professionals have long been regulated. Most of these efforts, however, have gone the way of the AMA measure, while proposals calling for the removal of physician and BOM oversight have been successful. Advanced nursing roles in the U.S. can be traced back to the 19th century, with these professionals providing services ranging from infant care to dispensing medications (Keeling, 2015). Perhaps the first example of provision of advanced nursing care was from nurses employed at the Henry Street Settlement in New York City who provided advance nursing care to a community with many health care needs and little access (Keeling, 2015). As the advanced role began to emerge, so did the challenges by physicians over the scope of the advanced nursing role. As early as 1903, advanced nursing dispensing practices were challenged, as the state nursing registration act stated “Nothing contained in this act shall be considered as conferring any authority to practice medicine or to undertake the treatment or cure of disease” (Keeling, 2015). The question arose then, as it does in debates across state legislatures today, of whether prescriptive authority is the practice of medicine. APRNs are regulated across the U.S. predominantly by BONs. As states have looked to adopt the 2008 Consensus Model for APRN Regulation, a few variations in who regulates have emerged. In contentious areas of practice, such as prescribing, various states have assigned a level of oversight to BOMs. In Florida, for example, a formulary committee that determines what controlled substances an ARNP may prescribe is seated by seven members, three of whom are physicians appointed by the Florida BOM (Florida Nurse Practice Act, 2017). Once the formulary is determined, the Florida BON must then adopt the formula based on “evidence-based clinical findings presented by the Board of Medicine, the Board of Osteopathic Medicine, or the Board of Dentistry” (Florida Nurse Practice Act, 2017). Although the number of states with BOM oversight are few, the physician lobby in those states have continued to push for control over APRN regulation in the most recent legislative session. In Arkansas, APRNs have been regulated by the BON since 1971 (Arkansas Center for Nursing et al., 2017). In regulating APRNs, the Arkansas board performs functions such as approving and monitoring nursing education and training programs, assessing APRN competencies, and maintaining and regulating the RN license the APRNs must maintain during their advanced practice (Arkansas Center for Nursing et al., 2017). In the 2017 session, as Arkansas’s organized nursing coalition was advancing several bills to lift restrictions on APRN practice, House Bill (HB) 1254 was filed and assigned to the state’s Public Health Welfare and Labor Committee. HB 1254 was sponsored by Representative Stephen Magie, a physician and member of the AMA, Faulkner County Medical Society, and the Pulaski County Medical Society (Arkansas House of Representatives, 2017). The bill transferred regulatory authority of APRNs from the BON to the Arkansas State Medical Board, while maintaining the restrictive collaborative practice agreement an APRN must enter into that governs the “joint management of the health care of the advanced practice registered nurse’s patients” (Ark. Legis., 2017). The grassroots response to HB 1254 was, according to the Arkansas Nurse Practitioner Association, “record-breaking and unprecedented” (Arkansas Nurse Practitioner Association [ANPA] Legislative and Policy Committee, 2017). Legislators were contacted through texts, phone calls, social media sites, letters, and face-to-face meetings, and over 1,300 e-mails were sent through the advocacy site www.nursesforarkansas.com (ANPA Legislative and Policy Committee, 2017). The bill was eventually withdrawn by the sponsor, and the APRN coalition in Arkansas ended the session with legislative successes in areas such as signature authority (ANPA Admin, 2017).

A Subcommittee on Scope of Practice in the Missouri House of Representatives issued a report during the legislative session that “recommends that the Committee on Professional Registration and Licensing consider transferring all APRN oversight to the sole authority of the Board of Healing Arts” (Sommer et. al., 2017). The Missouri Board of Healing Arts regulates physicians, anesthesiologist assistants, physician assistants, and other professions (Missouri Board of Registration for the Healing Arts, n.d.). Unlike the Arkansas bill, the Missouri subcommittee’s recommendation had a prerequisite that their recommendation would be to move APRNs under the Board of Healing Arts if it was first agreed that APRNs should practice without a collaborative agreement. Without the prerequisite, the committee recommended APRNs remain regulated by the Missouri Board of Nursing and be subject to collaborative agreements (Missouri Board of Registration for the Healing Arts, n.d.). The subcommittee reached this decision after holding a public hearing on February 28, 2017. Public testimony was presented by various nursing and physician organizations and State Representatives Tila Hubrecht and Keith Frederick. Witnesses testified in favor of both removing collaborative agreements and keeping the status quo. Among the testimony provided by witnesses were criticisms of APRN educational preparations. For instance, “the health care provider has to be able to diagnose not just the simple, common conditions but complex conditions as well” (Missouri Board of Registration for the Healing Arts, n.d.). In support of removing the restrictive collaborative agreements were witnesses pointing to the trend toward independent practice across the U.S. and highlighting the physician shortage APRNs can help alleviate if restrictions and barriers to practice are lifted (Missouri Board of Registration for the Healing Arts, n.d.).

Nursing stakeholders in Oklahoma worked to draft and introduce HB 1013, a bill to remove the requirement that APRNs enter collaborative agreements with physicians to have prescriptive authority (Okla. Legis., 2017b). Although ultimately failing to pass both chambers, the bill was voted out of the house with significant support from Oklahoma representatives, but not before many amendments were adopted onto the original introduced version. More than 15 amendments were filed while the bill sat on the house floor, and the amendments aimed to place significant hurdles on APRNs and their employers (Oklahoma State Legislature, 2017). House Floor Amendment 9, for example, introduced by representative Dale Derby, required a facility employing APRNs to “carry five million dollars of liability insurance for each APRN employed at such facility” (Okla. Legis., 2017c). Representative Derby, a physician, also introduced House Floor Amendment 7 (Okla. Legis., 2017a). Although it failed to be adopted onto the underlying bill, the amendment proposed adding that “the authority to license the Advanced Practice Registered Nurse shall be transferred by the Oklahoma Board of Nursing to the State Board of Medical Licensure and Supervision.” One state was successful in removing BOM oversight. South Dakota SB 61, championed by Senator Deb Soholt and Representative Jean Hunhoff, called for removing the state’s BOM oversight of two APRN roles—certified nurse practitioners and certified nurse midwives (SD Legis., 2017). Although regulation was shared by the BOM and BON of these roles, the South Dakota legislature overwhelmingly agreed that regulation of nursing roles by the BOM was problematic and voted to remove it (South Dakota Legislative Research Council, 2017). The Federal Trade Commission (FTC) weighed in on the issue as well. In their Advocacy Filing response to the South Dakota bill, the FTC referenced a 2016 West Virginia filing where they stated, in part, that assigning regulatory authority over APRN prescribing to the BOM “raises concerns about potential biases and conflicts of interest” (FTC, 2016). The biases and conflicts of interest were presumed to exist because the controlling membership on the West Virginia Board of Medicine and Osteopathy were physicians and doctors of osteopathy (FTC, 2016). In their comment, they also referenced a 2014 Supreme Court decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, a case that looked specifically at professional bias and its effects on competition (North Carolina State Board of Dental Examiners v. Federal Trade Commission, 2014). Using the persuasive materials from the FTC, the climate created by the North Carolina State Board of Dental Examiners decision, and use of maps as visuals to show the scant number of states with restrictive BOM oversight, SB 61 successfully passed the legislature and was signed into law by Governor Daugaard (South Dakota Legislative Research Council, 2017). Several legislative initiatives were proposed in 2017 to alter the national standard of APRN regulation falling under the purview of state BONs. Although these measures may have not resulted in BOM control of APRN regulation and practice this year, nursing regulators and stakeholders should expect these initiatives to continue into the 2018 legislative session. The passage of AMA Resolution 233, and the failure of the amendment relating to APRNs, opens a window into the AMA membership’s policy agenda and how close they came to passing the amendment that would create legislative initiatives across the country to change the course of APRN regulation.