Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC staffs highlight competitive effects of advanced practice registered nurse legislation, (Feb 12, 2016)

By Greg Hammond, J.D.

The staffs of the FTC Office of Policy Planning, Bureau of Economics, and Bureau of Competition are urging the West Virginia legislature to avoid restrictions on advanced practice registered nurses (APRNs) that are not narrowly tailored to address well-founded patient safety concerns. The FTC staffs sent a letter to the West Virginia Senate on February 10, responding to an invitation for comments on the likely competitive impact of West Virginia Senate Bill 516.

According to the letter, S. 516 proposes amendments to West Virginia statutory provisions governing advanced practice nursing by granting the Board of Medicine and the Board of Osteopathy the authority to license certain APRNs to prescribe medicines without the formal, written collaborative agreement now required for APRN prescribing in West Virginia. The bill, however, specifies that two significant categories of APRNs—Certified Nurse Midwives (CNMs) and Certified Registered Nurse Anesthetists (CRNAs)—shall not be permitted to prescribe without a collaborative agreement. In addition, APRNs who do not or cannot secure a prescribing license would still require a “standardized written agreement” with a physician to write prescriptions.

Likely competitive impacts. The FTC staffs noted that excessive restrictions on advanced practice nursing raise competition concerns. In particular, the staffs stressed that: (1) regulatory constraints on APRN practice limit the ability of APRNs to expand access to primary care services and ameliorate both current and projected health care workforce shortages; (2) legal or regulatory hurdles to APRN practice may raise the costs of APRN services, which could reduce supply and further diminish access to basic primary care; and (3) rigid supervision and collaborative agreement requirements may impede, rather than foster, development of effective models of team-based care.

The restrictions that the legislation would place on specialist APRNs, such as CNMs and CRNAs, may also harm competition, the letter states, by exacerbating access problems associated with physician shortages and diminishing price and quality competition among available health care providers. Lastly, the letter notes that excessive restrictions on independent prescribing licenses might undercut the bill’s potential benefits.

Recommendations. The FTC staffs consequently recommend that the legislature: (1) consider such competitive effects when evaluating the regulatory reforms in S. 516 or similar proposals; (2) examine carefully purported safety justifications for West Virginia’s current APRN collaborative agreement requirements, evaluate whether such justifications are well founded, and consider whether less restrictive alternatives would protect patients without imposing undue burdens on competition and on patients’ access to basic health care services; (3) scrutinize purported safety justifications for the restrictions on APRN prescribing that the bill would maintain or introduce—both the proposed conditions for obtaining a prescribing license and the proposed bar to independent prescribing by CNMs and CRNAs; and (4) consider whether to allow independent regulatory boards dominated by medical doctors and doctors of osteopathy to regulate APRN prescribing, given the risk of bias due to professional and financial self-interest.

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