Advanced Practice Nurses
March 12, 2014
Posted by Frank Ciesla
The Federal Trade Commission this month (March 2014) issued its policy analysis in regard to the regulation of Advanced Practice Nurses and competition issues which may arise through the regulation of their practice. This report can be accessed at http://www.ftc.gov/system/files/documents/reports/policy-perspectives-competition-regulation-advanced-practice-nurses/140307aprnpolicypaper.pdf. The report’s table of contents clearly sets forth where the FTC is going. That table provides:
CONTENTS
EXECUTIVE SUMMARY ………………………………………………..……….1
I. INTEREST AND EXPERIENCE OF THE FTC …………..……………….5
II. BACKGROUND ON APRNS AND SCOPE OF PRACTICE
ISSUES ………………………………………………………….…………..…………7
II.A. Advanced Practice Registered Nurses ………….…..…………….7
II.B. Competition Perspectives on Professional Regulations that
Restrict APRN Scope of Practice ……………………………………………11
I I.B.1. Framework for Evaluating Licensure and Scope of Practice
Regulations ………………………………………………………….……………….12
II.B.2. Analysis of Scope of Practice Limitations Should
Account for the Value of Competition ………………….…………………16
III. APRN SCOPE OF PRACTICE COMPETITION
ADVOCACY COMMENTS AND ADDITIONAL ANALYSIS
BY FTC STAFF ……………………………………………………………………18
I II.A. Potential Competitive Harms from APRN Physician
Supervision Requirements ……………………………………….…….….…20
III.A.1. Restrictive Physician Supervision Requirements
Exacerbate Well-Documented Provider Shortages that
Could Be Mitigated via Expanded APRN Practice ……………………20
III.A.2. Excessive Supervision Requirements May Increase Health
Care Costs and Prices ………………………………………………….……….27
III.A.3. Fixed Supervision Requirements May Constrain
Innovation in Health Care Delivery Models …………………………..31
III.A.4. Mandated Collaboration Agreements Between APRNs and
Physicians Are Not Needed to Achieve the Benefits of
Physician-APRN Coordination of Care …………………………….……34
III.B. APRN Supervision Requirements Should Serve Well-
Founded Patient Protection Concerns ..………………………….…….35
IV. CONCLUSION ………………………………………….…………….…….38
APPENDIX 1: APRN ADVOCACIES ……………………………………..A1
APPENDIX 2: SELECTED BIBLIOGRAPHY .………………………….B1
As can be seen by the table of contents, as well as reviewing the report in detail, it signals the FTC’s intention to support a significant expansion of the scope of practice of Advanced Practice Nurses, as well as to reduce physician oversight of their practice.
Expansion of the scope of practice of Advanced Practice Nurses is a way to meet the shortage of primary care practitioners by expanding both their scope of practice as well as reducing physician oversight. As set forth in the conclusion:
Our nation faces significant challenges in moderating health care spending and in providing adequate access to health care services, especially for our most vulnerable and underserved populations. Numerous expert health policy organizations have concluded that expanded APRN scope of practice should be a key component of our nation’s strategy to deliver effective health care efficiently and, in particular, to fill gaps in primary care access. Based on our extensive knowledge of health care markets, economic principles, and competition theory, we reach the same conclusion: expanded APRN scope of practice is good for competition and American consumers.
As explained herein and in prior FTC staff APRN advocacy comments, mandatory physician supervision and collaborative practice agreement requirements are likely to impede competition among health care providers and restrict APRNs’ ability to practice independently, leading to decreased access to health care services, higher health care costs, reduced quality of care, and less innovation in health care delivery. For these reasons, we suggest that state legislators view APRN supervision requirements carefully. Empirical research and on-the-ground experience demonstrate that APRNs provide safe and effective care within the scope of their training, certification, and licensure. Moreover, effective and beneficial collaboration among health care providers can, and typically does, occur even without mandatory physician supervision of APRNs.
When faced with proposals to narrow APRN scope of practice via inflexible physician supervision and collaboration requirements, legislators are encouraged to apply a competition-based analytical framework and carefully scrutinize purported health and safety justifications. In many instances, legislators may well discover that there is little or no substantiation for claims of patient harm. If, however, health and safety risks are credible, regulations should be tailored narrowly, to ensure that any restrictions on independent APRN practice are no greater than patient protection requires.
This policy paper will be available on the FTC website, along with related resources and an up-to-date index of FTC staff comments on APRN issues. The FTC hopes to continue to serve as a resource for state legislators who seek our views on these and other competition policy issues, and we welcome a continued dialogue with all interested stakeholders.
One can only conclude that the position of the FTC is unequivocally to support expansion of the scope of practice and to support substantial limitations on the oversight of these limited license practitioners.
As pointed out in other blogs (for instance, http://www.njhealthcareblog.com/2013/12/no-physician-shortage/), on an uncoordinated basis, the scope of practice of limited license practitioners is being expanded throughout the country. This FTC report clearly establishes the viewpoint of the FTC not just with regard to the area of Advanced Practice Nurses, but in all areas to encourage the states to expand the scope of practice and restrict oversight by physicians of such practices. As raised in our previous blog (www.njhealthcareblog.com/2013/10/expansion-of-the-scope-of-practice-of-non-physicians-a-harbinger-of-things-to-come), what impact will this have on defining the standards for malpractice? In addition, what will be the impact on establishment of the reimbursement rate for services that are or will be provided under the expanded scope of practice of these limited license practitioners?
In light of the fact that it takes four years of college, 4 years of medical school and 3-4 years of residency for a primary care doctor and only 4 years of college and 2 years of advanced training for an Advanced Practice Nurse, this is a route that will be taken to increase access and reduce cost. Whether this approach maintains or increases quality is an open issue.
For another discussion regarding expansion of the scope of practice of limited license practitioners (in this case, pharmacists), see the attached Kaiser Health news story (http://www.kaiserhealthnews.org/Stories/2014/February/11/pharmacists-see-clinical-role-expand.aspx) regarding the expanding scope of care now being provided in various states by pharmacists.
Continuing Saga of the Sustainable Growth Rate
March 7, 2014
Posted by Frank Ciesla
The latest version of legislation to solve the Sustainable Growth Rate (“SGR”) has now been introduced in the House. That version couples the resolution of the SGR problem with delaying the individual mandate under the Affordable Care Act. While it is predicted that this legislation will pass the House, it is highly doubtful that this legislation will pass the Senate and even if it passes the Senate, it is highly questionable that it will be signed by the President.
As we are all aware, a resolution of the SGR needs to come about prior to March 31, 2014 and today is Friday, March 7th.
At the present time, this is the only pending legislation that appears to have a funding source.
Still No Sustainable Growth Rate Resolution
March 6, 2014
Posted by Frank Ciesla
While there are proposals that Congressional leaders seem to be willing to adopt in regard to the Sustainable Growth Rate (“SGR”), they have not yet done so. The relief that has been provided from the 24% cut in payments to physicians expires on March 31, 2014, unless something is done, including extending the deadline.
As of this point in time, there still is not a determination as to how the repeal of the SGR will be paid for. It appears that the President’s proposed budget does not address how to pay for the SGR solution. In a recent address, Senator Wyden stated that reducing hospital reimbursement to pay for the SGR solution was not off the table. If this route is followed, it is clear that there will be a confrontation between the physician community and the hospital community, both of which need each other going forward.
If the SGR is repealed, physicians need to be concerned and need to focus on the payment mechanism in the future and the shift of the risk of patient noncompliance from the payors to the providers. Obviously, that will all depend upon the statute and regulations which are ultimately adopted in regard to the repeal of the SGR.
Lawsuit Challenges Exchange Distinctions
February 21, 2014
Posted by admin
There is a lawsuit pending, in the District of Columbia, challenging the ability of the federal government to provide a subsidy under the Affordable Care Act in those cases in which the individual is enrolling pursuant to a federal exchange. This lawsuit is based upon the fact that the language of the statute provides that subsidies can be paid to exchanges or health markets that were “established by the state”. Therefore, in cases where the exchanges were not established by the state, but are federal exchanges (as is the case in New Jersey), the plaintiffs have asserted that subsidies cannot be paid. In situations in which subsidies are not paid for individuals enrolling for insurance on the exchanges, employers cannot be penalized for failing to offer their employees insurance coverage. While unstated, one can assume that that is the reason for these suits being brought by businesses against the Affordable Care Act.
The concern for providers is that patients who are covered by “subsidized” insurance, but lose the subsidy, may no longer opt to pay the full cost of such insurance, making it more difficult for providers to be reimbursed for the cost of their care if coverage is lost.
Better Care at Lower Cost: If Patients Comply
February 14, 2014
Posted by admin
New legislation is being introduced in the Senate by Democratic Senator Ron Wyden and Republican Senator Johnny Isakson and in the House by Democrat Peter Welch and Republican Erik Paulsen. It is known as the Better Care Lower Cost Act of 2014. The focus of the proposed legislation is the elimination of fee for service reimbursement and switching to a concept of pay for performance.
What providers, and their various group representatives, such as the AMA or the AHA, need to be aware of, is the shifting of the risk of the noncompliant patient from the payor (be it the Medicare program or any other payor) to the provider.
Currently, the costs involved with the provision of health care for noncompliant patients generally is being borne by the Medicare program or other third party payors. No effective mechanism has been implemented by the Medicare program that would require the patient to comply with the medical protocol designed by the providers. Terms such as “navigator” or “health coach” are being used to describe individuals in the health care systems who will assist the patient in accessing the appropriate care needed. However, we have not seen any proposals which would impose upon the patient in those circumstances in which the patient is noncompliant.
As a provider, each of you can look at your own patient base to determine whether or not patient noncompliance with treatment protocols is an issue that you need to be concerned about. My discussions with many doctors indicates that a significant percentage of patients regrettably are noncompliant.
The issue of the noncompliant patient and the cost associated with the noncompliant patient needs to be resolved in any pay for performance reimbursement system going forward. Such a system will only be effective if there is an effective patient compliance program developed.
Affordable Care Act Requirement For Medium Sized Employers Delayed Again
February 11, 2014
Posted by admin
Businesses employing 50-100 employees have received yet another reprieve from the requirements of the Affordable Care Act. Enforcement of the Affordable Care Act provision requiring employers of 50-100 employees to offer healthcare to full-time employees has been pushed back to January 1, 2016. This is the second time the requirement was postponed. The health care requirement was originally scheduled to take effect for these businesses on January 1, 2014. This postponement should give the government time to answer a number of questions that have arisen regarding the law.
Sustainable Growth Rate
February 7, 2014
Posted by admin
It appears that half of the problem with the Sustainable Growth Rate has now been resolved. Both the House and the Senate have agreed that there will be an annual update of .5% from 2014 through 2018. The payment rates from 2018 would be maintained through 2023 during which times physicians could receive additional payments through a merit based incentive payment system.
As that incentive payment system is defined, we will be discussing it in light of the fact that it may be nothing more than an attempt to shift the risk of the noncompliant patient from the Medicare program to the physician.
The final stumbling blocks, however, to the resolution of the SGR issue, which will cost approximately $126 billion over 10 years, is how that cost will be covered. Before the proposed SGR solution is implemented, the issue of its costs needs to be resolved.
Sustainable Growth Rate: An Update as to the Status of the Congressional Response
February 5, 2014
Posted by admin
As you are aware, the implementation of the Sustainable Growth Rate (an approximately 30% reduction in payment to physicians in the Medicare program) was delayed until March 31st to provide an opportunity to permanently resolve the issue.
Two competing bills have been reported in the House and the Senate (see our December 13, 2013 blog). As of this date, no action has been taken on either bill. The reason for that is, as of this date, no one has been able to definitively identify an acceptable offset to the cost that will be incurred by either proposal for the resolution of the SGR. Without the finding of an offset, the resolution of the SGR will not occur and more than likely will kick the can down the road again until the end of this year.
Hospitals are strongly fighting any attempt to reduce the payments to hospitals to fund the resolution of the Sustainable Growth Rate and the only other proposal, which is also being vigorously opposed, was made by retiring Senator Jay Rockefeller from West Virginia who proposed reducing payments to the pharmaceutical companies.
Until this issue is resolved, we will post updates periodically in regard to the SGR.
Hospital Pays $2 Million After Making a Voluntary Disclosure of Its Improper Administration of Physician Income Guarantee Payments
January 9, 2014
Posted by Beth Christian
The Department of Justice announced earlier this week that the government had settled claims under the False Claims Act with St. Mary Medical Center (SMMC) of Bucks County, Pennsylvania for improperly administering certain physician income guarantee agreements.
According to the self-disclosure and resulting investigation, between January 2005 and August 2010, SMMC had 15 physician income guarantee agreements in place for recruited physicians, but failed to properly administer the terms of certain of these contracts. Income guarantees are payments provided by a hospital to a physician (or to the physician practice that the physician joins) in order to induce the physician to relocate their medical practice to the geographic area served by the hospital. Such payment arrangements must be carefully structured in order to meet the requirements for such arrangements set forth in the federal Stark regulations. As reported by a Department of Justice press release, SMMC’s payments under certain of the income guarantee agreements resulted in net overpayments to certain recruited physicians. Because the physicians and their practices referred patients to SMMC for medical treatment that was billed to federally funded programs, the government alleged that false claims were submitted to the government. After it discovered the problem, SMMC took corrective action to resolve the improper payments, and disclosed the matter to the United States Attorney’s Office. SMMC agreed to pay $2,339,224.70 to resolve the matter. The settlement serves as a reminder that while physician recruitment agreements (such as those involving income guarantees) must be carefully drafted to avoid non-compliance with the Stark law and regulations, execution of the payment arrangement is equally important and must be monitored on an ongoing basis.
CMS Issues Proposed Emergency Preparedness Regulations
January 8, 2014
Posted by Beth Christian
As the nation struggled with historically low temperatures and many providers dealt with emergencies arising from the extreme weather, CMS issued proposed regulations which would implement additional emergency preparedness requirements for a wide range of Medicare-participating providers and suppliers. The proposed regulations are designed to ensure that providers and suppliers are adequately prepared for both natural and man-made disasters, can meet the needs of patients when these situations arise, and that emergency preparedness efforts are coordinated with governmental emergency response systems. If adopted, the proposal would apply to a wide range of providers and suppliers, including (but not limited to) hospitals, skilled nursing facilities, home health agencies, ambulatory surgery centers, hospices, PACE organizations, and dialysis facilities. They would not be applicable to physician practices.
The proposed rule would require participating providers and suppliers to meet the following four standards:
- Emergency plan—Providers and suppliers would be required to perform a risk assessment and develop an emergency plan using an all-hazards approach focusing on capacities and capabilities.
- Policies and procedures—Additional policies and procedures would need to be developed and implemented based on the emergency plan and risk assessment referenced above.
- Communication plan—Providers and suppliers would need to develop and maintain a communication plan that complies with both Federal and State law. The plan would need to ensure that patient care is well-coordinated within the facility, across health care providers, and with State and local public health departments and emergency systems.
- Training and testing program—Providers and suppliers would be required to develop and maintain training and testing programs, including initial and annual trainings. They would also be required to conduct emergency preparedness drills and exercises or participate in an actual incident that tests the plan.
CMS indicated that it developed the proposal after reviewing existing regulatory requirements and finding that they were not comprehensive enough to address the complexities of emergency preparedness. CMS found that exiting requirements did not address the need for: (1) communication to coordinate with other systems of care within cities or states; (2) contingency planning; and (3) training of personnel. The requirements will be tailored to the specific type of provider and the patient population that they serve. CMS is soliciting comments on whether or not the proposed requirements need to be modified further to reflect the characteristics of each type of provider and supplier.
While institutional providers in New Jersey such as hospitals and nursing homes already work on emergency preparedness in concert with state and local governmental agencies and trade organizations on an ongoing basis, the proposed requirements will encompass a broader range of providers and suppliers. The text of the proposed regulations can be found here: http://www.ofr.gov/%28X%281%29S%28vp32o25ckyhpvspfpzx3owe4%29%29/OFRUpload/OFRData/2013-30724_PI.pdf
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