By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Two weeks ago, the Federal Trade Commission (FTC) submitted written comments on the competitive impact of a legislative proposal to modify the supervision requirements imposed on Advanced Practice Registered Nurses (APRNs), sometimes called Advanced Registered Nurse Practitioners (ARNPs), Advanced Nurse Practitioners (ANPs) or Advanced Practice Nurses (APNs). The proposal in West Virginia, would permit some APRNs, under limited conditions, to write prescriptions without a formal agreement with a supervising physician. The proposal would also place the regulation of certain APRNs under authority of the West Virginia Board of Medicine of Osteopathic Medicine.
The Second Time the FTC Has Made Comments.
In 2014, the FTC issued a paper titled, “Policy Perspectives: Competitions and the Regulation of Advanced Practice Registered Nurses,” in which it advocated for the expansion of APRN scope of practice. APRNs, also known as nurse practitioners, are registered nurses who have been both educated and received specialized training beyond the requirements for a registered nurse. The FTC’s paper in 2014, contended that expanding the scope of practice would create more competition, helping to control costs, improve quality, promote innovation and expand access to care.
To read more about the FTC’s paper in 2014, click here.
The FTC’s Involvement.
The FTC has repeatedly voiced its opinion and recognized “the critical importance of patient health and safety, and  defer[s] to state legislators to determine the best balance of policy priorities and to define the appropriate scope of practice for APRNs and other health care providers.” However, the FTC cautioned that the modifications in the proposal “could benefit patients, as it would permit a route to independent prescribing, at least for some APRNs under certain conditions,” it still “raises significant competitive concerns.
Limitations on Health Practitioners Result in Antitrust Scrutiny as Artificial Restraint on Trade.
Such limitations on what different health care practitioners are allowed to do or prohibited form doing by state licensure boards has fallen under scrutiny by the antitrust regulators lately. Often regulators believe that restrictions on what capable, trained professionals are allowed to do is nothing but an artificial restraint on trade, where one professional that may have more clout is attempting to keep the other profession(s) off of its “turf.” This is especially true when there appears to be no other valid reason to do so.
In the light of antitrust suits being filed across the nation against boards of dentistry and other licensure boards, many state boards and regulatory authorities are “running scared.” In Florida, for example, the Board of Medicine, Board of Dentistry, Board of Nursing, Board of Physical Therapy and other professional licensing boards have recently received legal instruction on how to avoid such charges being made against them. Additionally legislation has recently passed in the Florida Legislature to allow Advance Registered Nurse Practitioners (ARNPs) in Florida to write prescriptions for controlled substances for the first time ever.
In Hill v Florida Department of Health, our attorneys won a rule challenge/non-rule policy case against the Florida State Department of Health over information it promulgated stating that nurses were prohibited form administering Botox. See Shelley Kay Hill, R.N. v. Department of Health, Board of Nursing, Fla. Div. Admin Hrng. Case No. 14-4511RU (Final Order dated Mar. 10, 2015). Click here to read more.
To read a prior blog that I wrote on FTC vs. North Carolina Board of Dental Examiners case, click here.
The Health Law Firm Attorneys Represent Clients in Restraint of Trade, Scope of Practice and Other Related Legal Matters.
The attorneys of The Health Law Firm provide advice and representation concerning antitrust law, trade regulation, restraint of trade issues, and regarding deceptive and unfair trade practices. We routinely provide advice and analysis of proposed business ventures that include the foregoing. We have represented both plaintiffs and defendants in state court litigation and in federal court litigation in such matters. We prepare requests for OIG Advisory Opinions, CMS Advisory Opinions and Petitions for Declaratory Statements to state agencies. We also prepare detailed Legal Opinion Letters on complex health care business transactions for proposed business ventures, mergers acquisitions, financing, etc.
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Lomax, Dionne. “FTC Again Urges Consideration of Competitive Impact on State Regulation of APRNs.” Health Law & Policy Matters – Mintz Leven. (February 17, 2016). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
KeyWords: Advanced Practice Registered Nurses (APRNs), Federal Trade Commission (FTC), scope of practice, Advanced Registered Nurse Practitioners (ARNPs), Advanced Nurse Practitioners (ANPs), Advanced Practice Nurses (APNs), Restraint of Trade, antitrust law, trade regulation, OIG Advisory Opinions, CMS Advisory Opinions, Petitions for Declaratory Statements to state agencies, health care lawyer, health law defense attorney, health law, The Health Law Firm
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