Last month, Federal Trade Commission (“FTC”) staff submitted comments in support of proposed legislation in Kansas and Ohio that would expand the scope of practice of advanced practice registered nurses (“APRNs”) in those states. In Kansas, H.B. 2412 would permit independent practice by APRNs who have completed a transition program consisting of 4,000 hours of licensed active practice under a collaborative relationship with a physician. In Ohio, H.B. 177 would permit independent practice by APRNs who have practiced in a clinical setting for the longer of 2,000 clinical practice hours or 12 months. Additionally, H.B. 177 would allow an APRN who has not completed the required hours to enter into a standard care arrangement with an APRN who has completed 2,000 clinical practice hours. Both bills are still in committee.

According to the American Association of Nurse Practitioners (“AANP”), currently 22 states and the District of Columbia permit APRNs to engage in full practice, which the AANP defines as the ability to evaluate patients; diagnose, order and interpret diagnostic tests; and initiate and manage treatments, including prescribing medications and controlled substances. As the healthcare industry continues to innovate and experiment with new models of care and service delivery, more states may seek to expand APRN scope of practice with the support of groups like the AANP and the FTC.

The FTC’s comments are a continuation of its efforts to support legislative or regulatory changes to remove licensing restrictions that are a barrier to entry for workers in the healthcare industry, which the FTC views as having the potential to decrease the availability and increase the costs of healthcare services. In September 2018, the FTC’s then-acting Chairman Maureen K. Ohlhausen, created the Economic Liberty Task Force Initiative on occupational licensing in order to create uniformity and portability by assessing the harms of excessive occupational licensing and its impact on individuals in society.  Since that time, the FTC regularly submits comments concerning proposed regulations bearing on these issues.  For example:

  • In December 2019, the FTC commented against a rule proposed by the Texas Medical Board seeking to impose additional supervisory requirements on certified registered nurse anesthetists.
  • In April 2018, the FTC commented in support of a proposed rule change by the New York State Education Department that could potentially reduce the burdens on experienced Canadian dentists wishing to practice dentistry in New York State.
  • In January 2018, the FTC commented in support of proposed legislation in Pennsylvania that would eliminate physician supervision requirements for APRNs who have completed three years of practice under physician collaboration.
  • Also In January 2018, the FTC commented in general support of legislation in Nebraska that would require the review of both proposed licensing legislation and existing occupational licensing regulations by using “the least restrictive regulation necessary to protect consumers from present, significant, and substantiated harms … when competition alone is not sufficient.” The generally in support of the proposed legislation, the FTC cautioned that such reform goals could be misused by self-interested regulatory boards to protect, rather than eliminate, anticompetitive regulation.

Norton Rose Fulbright professionals are available to provide additional information regarding state regulation of APRN scope of practice and to advise on implications to business models, antitrust issues, healthcare reimbursement, enforcement and compliance matters.