Scope of practice expansion has been a hot-button issue within medical communities and state legislatures for more than thirty years. The debate is centered on what services advanced practice providers (“APPs”) who hold Master’s Degrees (e.g., Physician Assistants, Nurse Practitioners, Pharmacists, Dental Hygienists, etc.) should or should not be able to furnish in their professional practices. Scope of practice is defined by state regulatory boards, often based on limitations established by state legislatures.

The degree of autonomy granted to APPs varies by state. Some states employ a supervision model, which prohibits APPs from engaging in the practice of medicine without physician supervision. Other states employ a collaboration model, which requires that APPs collaborate with physicians in order to engage in the practice of medicine, providing APPs with considerably more autonomy than the supervision model. Finally, some states follow the independent practice model, which grants certain APPs full authority to engage in the practice of medicine.

APP Push for Independent Practice  

Some APP groups have lobbied against continuation or adoption of models requiring formal supervision, collaboration, and/or written agreements with physicians. Proponents of APP independent practice focus on the overall healthcare system impact, emphasizing APPs’ ability to compensate for primary care provider shortages in underserved communities and to drive lower health care costs, as well as to free up physician time for more advanced medical services. These groups also point to studies demonstrating positive health outcomes in states that grant greater APP autonomy.[1]

Physician Opposition

The strongest opponents to APP scope of practice expansion are medical associations and physician groups, which argue that loosening supervision requirements may negatively impact quality of care and patient safety. These groups emphasize that APPs receive less technical and clinical training than physicians and argue that “the education and training really matters.”[2] Michaela Sternstein, Vice President of the American Medical Association State Advocacy Resource Center, emphasizes the importance of “[t]he level, the depth, the intensity, the time commitment.”

Physician groups and medical associations also emphasize the value and long-standing tradition of a team-based approach to providing healthcare, in which one or more physicians leads a team of APPs and other auxiliary personnel. These organizations argue that allowing for independent practice of APPs could lead to a siloed approach, with less collaboration and accountability.

The Future for Scope of Practice Expansion

Emerging from this debate, and for a constellation of reasons, is a slow but steady progression toward expanded scope of practice for APPs.

Recent Influences on the Trend Toward Independent Practice

In most states, scope of practice for APPs was expanded on a temporary basis in response to the COVID-19 pandemic, as part of a necessary all-hands-on-deck approach to combating the coronavirus. Some governors who signed executive orders to temporarily permit this scope of practice expansion have now expanded those orders by signing subsequent legislation that permanently allows APPs to practice independently or on a more autonomous basis. For example, following the expiration of his executive order expanding scope of practice for Nurse Practitioners, Optometrists, Nurse Anesthetists and Psychiatric Nurse Mental Health Specialists, Massachusetts Governor, Charlie Baker, signed a comprehensive piece of healthcare legislation, which permanently codified the expanded scope of practice permitted during the pandemic.[3] Similarly, Arkansas Governor, Asa Hutchinson, signed several pieces of legislation in March of this year, which permanently codified his executive orders giving full independent practice authority to certain Nurse Practitioners and Certified Nurse Midwives, and shifting the practice relationship between Anesthesiologists and Nurse Anesthetists from supervisory to collaborative.[4] Further, the scope of practice for pharmacists has also been expanded during the pandemic, in response to the necessity of rolling out COVID-19 vaccines on an expedited timeframe. For example, HHS’ Third Amendment to Declaration under the Public Readiness and Emergency Preparedness Act allows pharmacists, and even pharmacy interns, to administer vaccines to children between the ages of three and eighteen for the duration of the public health emergency. Multiple states have followed suit to codify emergency authority granted during the pandemic, including Virginia, which allows pharmacists to independently prescribe and administer vaccines, and Utah, which grants pharmacists broad independent prescriptive authority.[5]

Separately, the opioid crisis has contributed to the trend toward independent practice, as the need for opioid addiction treatment significantly outweighs the volume of available physicians. Consequently, some legal initiatives have expanded APP authority specifically to furnish certain addiction treatment services. For example, the Comprehensive Addiction and Recovery Act[6] expands the prescriptive authority of Nurse Practitioners under federal law with regard to addiction treating drugs, such as Suboxone.

Additionally, the growth of rural elderly and near-elderly populations is increasing demand for primary care services in those areas. Some state legislatures have chosen to meet this demand by allowing independent practice for certain APPs. This legislative strategy appears to relatively effective, as demonstrated by a U.S. Department of Health and Human Services study indicating that Nurse Practitioners in full practice and prescriptive authority states are 6% more likely to work in rural areas than Nurse Practitioners in restrictive states.[7]

Lastly, as aforementioned, expansion of APP practice may also contribute to addressing challenges in containing health care costs.

Trends

The majority of states have enacted some expansion of APP scope of practice over the past few decades, and nearly every state legislature deliberated scope of practice bills in 2021. A staggering 280 bills have been introduced in 2021 to modify the scope of practice laws for different APPs.

However, the success of these bills has been inconsistent. For example, while Massachusetts, Delaware, Michigan, Arkansas, and Pennsylvania all passed bills expanding the scope of practice for Nurse Practitioners, similar bills were struck down in Florida, Kansas, Kentucky, Louisiana, Maine, Mississippi, Tennessee, and Texas. In view of these mixed results, it remains to be seen the speed with which scope of practice reform will continue its progression toward independent practice for APPs.

Co-authored by Audrey Crowell, a law clerk in the Corporate & Securities Practice Group in the firm’s Dallas office.

FOOTNOTES

[1] See Martsolf, Grant R., Auerbach, David I., and Arifkhanova, Aziza, The Impact of Full Practice Authority for Nurse Practitioners and Other Advanced Practice Registered Nurses in Ohio, RAND Corp. (2015).

[2] Scope of Practice and Patient Safety with Michaela Sternstein, JD, Am. Med. Assoc. (Nov. 11, 2021).

[3] Press Release, Governor Baker Signs Health Care Legislation Increasing Access to Quality, Affordable Care, Promoting Telehealth and Protecting Access To COVID-19 Testing, Treatment, Mass. Gov.’s Office (January 1, 2021), available at link.

[4] Press Release, Governor Hutchinson’s Weekly Address – Nurses Make a Difference, Ark. Gov.’s Office (May, 14, 2021), available at link.

[5] 2021 State Provider Status Mid-Year Legislative Update, NASPA (June 7, 2021), available at link.

[6] According to U.S. Rep. David Trone (D-MD) in a July 1, 2021, Press Release regarding the Comprehensive Addiction and Recovery Act (CARA) 3.0, the Comprehensive Addiction & Recovery Act (CARA) became law in 2016. CARA’s evidence-based programs have received strong federal investment. Several key provisions of CARA 2.0 were enacted as part of the SUPPORT Act in 2018. In FY 2021, Congress funded CARA programs at $782 million.

[7] Impact of State Scope of Practice Laws and Other Factors on the Practice and Supply of Primary Care Nurse Practitioners, U.S. Dept. of Health and Human Services (December 30, 2015) available at link.