By Emma Chapman, J.D. Candidate, Georgetown University Law Center
On June 21, POLITICO held a Pro Health Care Briefing entitled “Scope of Practice in the ACA Era” examining how much authority nurse practitioners (NPs) and physician assistants (PAs) can exercise without the supervision of a licensed physician, and what barriers still remain to achieving greater autonomy. The briefing was sponsored by CVS Health, which relies primarily on NPs to deliver primary care services (including health screenings, chronic illness assessments, vaccines, and wellness visits) in its now ubiquitous Minute Clinics. According to a CVS representative at the meeting, there are currently more than 11,000 of such clinics around the United States and more than half of the U.S. population lives within 10 miles of one.
The scope of practice discussion was grounded in a sense of urgency: over 60 million people lack access to primary care in the United States, in part because of a significant shortage of primary care physicians. The Association of American Medical Colleges estimates the shortfall could reach anywhere between 12,500 and 31,000 physicians by 2025. In response to this growing dilemma, retail clinics, generally staffed by NPs and PAs, are popping up all over the country to deliver these needed services in convenient locations during convenient hours (nearly half of their visits occur on nights and weekends, when most traditional primary care offices are closed).
State legislatures around the country recognize the lack of primary care physicians and are increasingly willing to increase authority for NPs – granting, for example, full authority to prescribe controlled drugs, durable medical equipment, and other devices without sign-off from a physician and in some cases allowing NPs to own and operate their own practices without a supervising physician on staff. In fact, 21 states and the District of Columbia are “full practice” states – meaning that they allow NPs to evaluate patients, diagnose, and prescribe medications without any physician supervision. The remaining states require some sort of physician oversight, such as a collaborative agreement with a licensed physician, limits on the settings in which NPs may practice, or direct physician supervision.
Achieving greater autonomy through state scope of practice laws, however, is not sufficient to expand the ability of NPs to practice; just as important is how payer policies are evolving to be consistent with these laws. A study of six states with a variety of scope of practice laws found that commercial plans may not recognize NPs as primary care providers in their networks or can decline to directly pay NPs for services, thus preventing NPs from establishing their own practices even if state law allows it. Inconsistency is apparent even for public payers: for example, though Alabama’s scope of practice laws do not prohibit NPs from conducting streptococcal screens or influenza swabs, its Medicaid program will not reimburse NPs for such services.
Furthermore, while there has been a growing trend towards expanding scope of practice for NPs – eight of the states passed their full practice legislation after the passage of the Affordable Care Act in 2010 – any such legislation routinely faces significant opposition from state and national physician groups. In May of 2015, for example, the California legislature attempted to pass a bill that would have allowed NPs to operate without a supervising physician if they contracted with a medical group, but the state’s medical association strongly opposed the bill and it ultimately failed to pass. The California Medical Association argued that the expanded practice of NPs would not improve quality of care or access, but rather would lead to “unpredictable outcomes, higher costs and greater fragmentation of care.” Local medical associations in North Carolina, Massachusetts, and Pennsylvania, states in which the legislatures are considering full practice bills, are making similar arguments. The opposition is also national: just this month, the American Medical Association made similar arguments against a proposed rule from the Veterans Health Administration (VA) that would grant full practice authority to advanced practice registered nurses (APRNs are nurses with graduate education and include certified nurse practitioners, certified registered nurse anesthetists, clinical nurse specialists, and certified nurse-midwives) practicing in VA hospitals regardless of state law.
The fight to keep non-MD clinicians’ scope of practice narrow to support physician interests is not new. But as people struggle to access basic primary care services, this is likely a losing battle particularly as the demand for primary care is expected only to increase in the coming years.
Editor’s Note: Emma Chapman is a legal intern at CHIR