For this PPT you are an advocate for full practice authority for your APRN specialty. You are addressing a group of legislators. SafrietFederalOp

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INTRODUCTION

As decision makers at every level wrestle with the urgent need to broaden access to health care, three challenges have become clear. The care provided must be competent, efficient, and readily available at all stages of life; it must come at a cost that both individuals and society at large can afford; and it must allow for appropriate patient choice and accountability. Among the options avail­ able to promote these goals, one stands out: wider deployment of, and expanded practice parameters for, advanced practice nurses (APNs). The efficacy of this option is uniquely proven and scalable. These well-trained providers—includ­ ing nurse practitioners, nurse midwives, nurse anesthetists, and clinical nurse specialists—can and do practice across the full range of care settings and patient populations. They have proven to be valuable in both acute and primary care roles, and as generalists as well as specialists.2 By professional training as well as by regulatory and financial necessity, they have emphasized coordinated and cost-effective care, and they have tended more than other providers to establish practices in traditionally underserved areas.

The role of any professional group is typically delineated by a process that moves from awareness of capabilities, to acceptance, to acknowledgment and

2 For purposes of this paper, I take it as a given that APNs—like any other appropriately trained and licensed professionals—are able and effective providers within the sphere of their competencies. This has been amply confirmed by numerous studies and analyses over the years, and the literature is readily available.

H

Federal Options for Maximizing the Value of Advanced Practice Nurses in Providing

Quality, Cost-Effective Health Care1

Barbara J. Safriet, J.D., L.L.M. Lewis & Clark Law School

1 The responsibility for the content of this article rests with the author and does not necessarily represent the views of the Institute of Medicine or its committees and convening bodies.

443

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444 THE FUTURE OF NURSING

formal policy making. Despite significant progress in several venues, however, this process has been stymied, in the case of APNs, by the many regulatory ob­ stacles and restrictions that currently impede the full realization of their potential. Chief among these, as I have noted elsewhere, are “conflicting and restrictive state provisions governing [APNs’] scope of practice and prescriptive authority… as well as the fragmented and parsimonious state and federal standards for their reimbursement” (Safriet, 1992). While an extensive catalog of these restrictions appears in the section “Current Impediments in the Regulatory Environment,” the following two examples—one state-based and one federal—will perhaps capture the flavor of the problem.

• In Louisiana, according to the Board of Medicine, no one other than a physician may treat chronic pain, even if the provider in question is trained as a nurse anesthetist, is competent to treat pain, and has been directed to do so by a physician.3

• Medicare precludes a certified nurse specialist from certifying a patient for skilled long-term care, or from performing the physical required for admission, even though the CNS has been treating the patient on an ongoing basis.4

THE DIMENSIONS OF THE PROBLEM

There are several steps that the federal government can and should take to eliminate, or at least mitigate, the wasteful effects of such needless restrictions as these. To approach the task effectively, however, decision makers must (1) understand several contextual factors specific to nursing; (2) be familiar with the extensive array of restrictions that are embedded in state and federal regulations (as well as in private organizations’ policies), and grasp their historical origins; and (3) develop a clear understanding of the impediments—ranging from inertia to resistance to active opposition—to a more rational deployment of APNs.

Nurse-Specific Contextual Factors

Any effort to design more effective and cost-efficient health care delivery models by maximizing the contributions of APNs must proceed from a basic understanding of several fundamental aspects of our current framework. Among the most important of these are the following.

1. The diversity of nursing practice. “Nursing writ large” encompasses a wide variety of skill levels and roles, and nursing practice routinely takes

3 Louisiana State Board of Medical Examiners: Statement of Position, “Interventional Pain Manage­ ment Procedures Are Not Delegable,” June 2006.

4 Social Security Act § 1819(b)(6).

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APPENDIX H 44�

place in an almost infinite variety of settings, ranging from the intensive care unit of trauma centers to schools, patients’ homes, prisons, long- term care facilities and nursing homes, community health clinics, and outreach centers. While these diffuse practice settings and roles have no doubt enhanced the nation’s health, the very diffusion and multifaceted nature of nursing practice has often meant that nursing has been slighted in the nascent measurement movement which seeks to apply cost and care-effectiveness standards.

2. Economic invisibility. Nursing services traditionally have been treated as an expense (albeit an essential one) rather than as an individually identified revenue or income source on institutional or governmental balance sheets. And from the patient’s perspective, nursing services rarely, if ever, are separated out from institutional room charges or other professional fees on billing statements. Unsurprisingly, these accounting practices promote the widespread perception that nurses are not “rev­ enue generators” (RWJF, 2010). Perhaps in part because of this “revenue invisibility,” nursing has been underrepresented in, or excluded from, the decision-making processes (both private and governmental) that determine the metrics upon which costs, value, pricing, and payment are based. This asymmetrical financial treatment has special salience today, as most reform proposals are focused increasingly on defining the value of services and rewarding the attainment of performance measures. And as APNs continue to participate in, and often lead, the development of innovative practice models designed to better meet patients’ needs, it is essential that payment schemes include complete and accurate measure­ ment and valuation of their services.

3. Multiple routes of entry. Nursing is the only profession which has mul­ tiple educational pathways leading to professional licensure. In all states but one, successful completion of 2-, 3- and 4-year degree programs is recognized as fulfilling the educational requirements for licensure as a registered nurse (RN). This unique multiplicity of qualifying pathways is supported by some, and opposed by others, in the professional, edu­ cational, and policy-making arenas, and it will no doubt continue to be assessed as workforce policy focuses on ensuring an adequate supply of well-prepared nurses. Regardless of how this issue is ultimately ad­ dressed, however, the current reality is that 2 years of nursing education meets the educational requirement for licensure as a registered nurse, which is the first step for recognition and licensure as an APN. This fact has posed problems for those who seek to promote wider legal authority for, and utilization of, APNs. Even though master’s-level education and national certification are now uniformly required for APN licensure,5

5 For a recently adopted uniform framework for APNs, see APRN Consensus Work Group and National Council of State Boards of Nursing APRN Advisory Committee (2008).

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44� THE FUTURE OF NURSING

policy makers and state legislators are sometimes confused about (or susceptible to opponents’ mischaracterizations of) the underlying edu­ cational and training requirements when considering expanded recogni­ tion of APNs’ scopes of practice. While patience and information can overcome most of these concerns, much time and many resources are consumed in the process.

4. Care versus cure. As some voices in the current reform debates ac­ knowledge, our emphasis for far too long has been on curing illness, rather than on promoting health. This has led to a systemic overemphasis on training in acute care, technologically robust settings, and to a pay­ ment structure skewed toward procedural interventions by increasingly sub-specialized providers. Perhaps unsurprisingly, we have correspond­ ingly undervalued public health. More to the point, we have consistently undervalued coordinated, primary care provided throughout the patient’s life spectrum in a variety of settings, including the community, the home, long-term care facilities, and hospice. As a group, APNs have extensive experience across all these settings. Their traditional approach of blend­ ing counseling with clinical care, and coordinating health services as well as appropriate community resources in support of patients, could be a model for policies that seek a more optimal balance of providers prepared to meet the needs of the American public.

Regulatory Barriers to the Full Deployment of APNs

Current Impediments in the Regulatory Environment

For health care providers of all types (other than physicians), the framework defining who is legally authorized to provide and be paid for what services, for whom, and under what circumstances is among the most complex and uncoordi­ nated schemes imaginable. It reflects an amalgam of regulations, both prescriptive and incentivized, at the state, local, and federal levels. The effects of these gov­ ernmental regulations are further compounded by the credentialing and payment policies of private insurers and managed care organizations.

The explicit restrictions resulting from this complex and uncoordinated scheme are many, but they can be grouped into two principal categories: (a) state-based limitations on the licensed scopes of practice for APNs (and other providers) which prevent them from practicing to the full extent of their abilities, and (a) payment or reimbursement policies (both governmental and private) that either render them ineligible for payment, or preclude their being paid directly for their services, or pay them at a sharply discounted rate for rendering the same services as physicians.

In many states, the legal framework authorizing APNs’ practices has evolved in step with their expanding skills, education, training, and abilities. In several

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APPENDIX H 44�

other states, however, their full utilization is hampered by outdated (or in some cases newly imposed) restrictions on a full range of professional services. De­ pending on the jurisdiction, these restrictions may preclude or limit the author­ ity to prescribe medications, admit patients to hospitals or other care facilities, evaluate and assess patients’ conditions, order and evaluate tests and procedures, and the like.

To illustrate the pervasive and detrimental variations embodied in many state licensure statutes and regulations, consider the following example.

Imagine an APN who has attended a nationally accredited school of nursing for the BSN and Master of Nursing degrees, and who has passed the national licensure examination for RN licensure as well as national certification examina­ tions in her APN practice area. Imagine further that two adjacent states, A and B, have adopted regulations representing both ends of the regulatory spectrum, and that our APN is licensed in both of them.

In State A, she is permitted independently to examine patients, order and in­ terpret laboratory and other tests, diagnose and treat illness and injury, prescribe indicated drugs, order or refer for additional services, admit and attend patients in a hospital or other facility, and get paid directly for her services.

When she steps across the line into State B, however, it is as if her competence has suddenly evaporated. Depending on her practice area and the particular con­ stellation of restrictions adopted by the legislature of State B, she will encounter many if not most of the following prohibitions.

Examination and Certification

She may not examine and certify for:

• worker’s compensation, • DMV disability placards and license plates, and other DMV testing, • jury service excusal, • mass transit accommodation (reduced fares, access to special features), • sports physicals (she may do them, but can’t sign the forms), • declaration of death, • school physicals and forms, including the need for home-bound

schooling, • COLST, CPR or DNR directives, • disability benefits, • birth certificates, • marriage health rules, • treatment for long-term-care facilities, • alcohol and drug treatment involuntary commitment, • psychiatric emergency commitment, • hospice care, or • home-bound care (including signing the plan of care).

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44� THE FUTURE OF NURSING

Referrals and Orders

She may not refer for and order:

• diagnostic and laboratory tests (unless the task has been specifically delegated by protocol with a supervising physician), • occupational therapy, • physical therapy, • respiratory therapy, or • durable medical equipment or devices.

Examination and Treatment

• She may not treat chronic pain (even at the direction of a supervising physician).

• She may not examine a new patient, or a current patient with a major change in diagnosis or treatment plan, unless the patient is seen and exam­ ined by a supervising physician within a specified period of time.

• She may not set a simple fracture, or suture a laceration. • She may not perform:

− cosmetic laser treatments or Botox injections, − first-term aspiration abortions, − sigmoidoscopies, or − admitting examinations for patients entering skilled nursing facilities.

• She may not provide anesthesia services unless supervised by a physician, even if she has been trained as a nurse anesthetist.

Prescriptive Authority

• She may not have her name on the label as prescriber. • She may not accept and dispense drug samples. • She may not prescribe:

− some (or, in a few jurisdictions, any) scheduled drugs, and − some legend drugs.

• She may not prescribe even those drugs that she is permitted to prescribe except as follows: − as included in patient-specific protocols − with the co-signature of a collaborating or supervising physician − if the drugs are included in a specific formulary or written protocol or

practice agreement − if a specified number or percentage of charts are reviewed by a collabo­

rating or supervising physician within a specified time period − if the physician is on-site with the APN for a specified percentage of time

or number of hours per week or month − if the APN is practicing in a limited number of satellite offices of the

supervising physician − if the prescription is only for a sufficient supply for 1 or 2 weeks, or

provides no refills until the patient sees a physician

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APPENDIX H 44�

− if a prescribing/practice agreement is filed with the state Board of Nurs­ ing, Board of Medicine and/or Board of Pharmacy, both annually and when the agreement is modified in any way

− pursuant to rules jointly promulgated by the Boards named above − if the collaborating or supervising physician’s name and DEA # are also

on the script. • She may not admit or attend patients in hospitals

− if precluded from obtaining clinical privileges or inclusion in the medical staff,

− if state rules require physician supervision of NPs in hospitals, − if medical staff bylaws interpret “clinical privileges” to exclude “admit­

ting privileges,” or − if hospital policies require a physician to have overall responsibility for

each patient.

Compensation

• She may not be empanelled as a primary care provider for Medicaid, Medi­ care Advantage or many commercially insured managed care enrollees.

• She may not be included as a provider for covered services for Workers Compensation.

• She may be paid only at differential rates (65%, 75%, or 85% of physician scale) by Medicaid, Medicare or other payers and insurers.

• She may not be paid directly by Medicaid. • She may not be certified as leading a Patient-Centered Medical Home or

Primary Care Home. • She may not be paid for services unless supervised by a physician. • She may indirectly affect the eligibility of other providers for payment

because − pharmacies cannot get payment from some private insurers unless the

supervising or collaborating physician’s name is on the script, and − hospitals cannot bill for APNs’ teaching or supervising medical students

and residents and advanced practice nursing students (as they can for physicians who provide those same services).

As this example illustrates, the restrictions faced by APNs in some states are the product of politics rather than sound policy. Competence does not change with jurisdictional boundaries; the only thing that changes is legal authority. Indeed, the point is even more sharply illustrated by those states in which an APN’s au­ thorized scope of practice may vary within the state depending on the geographic location of the practice, the economic status of the patient, or the corporate nature of the practice setting. In sum, this practice environment for APNs echoes the conclusion of a previous Institute of Medicine report, which succinctly described the current regulatory framework for health care providers as “inconsistent, con­ tradictory, duplicative, outdated, and counter to best practices” (IOM, 2001). And that disturbingly accurate conclusion was based only upon explicit regulatory

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4�0 THE FUTURE OF NURSING

provisions. APNs must also contend with the additional debilitating effects result­ ing from nursing’s traditional “revenue invisibility,” and from APNs’ absence or exclusion from key decision-making venues such as hospital governing boards and medical staffs and organizations designing quality and cost metrics.

The Costs of This Dysfunctional Regulatory Regime

Even though APNs, like all health professionals, have continued to develop and expand their knowledge and capabilities, the state-based licensure framework described above has impeded their efforts to utilize these ever-evolving skills. For historical reasons that will be explained more fully below, virtually all states still base their licensure frameworks on the persistent, underlying principle that the practice of medicine encompasses both the ability and the legal authority to treat all possible human conditions. That being so, the scopes of practice for APNs (and other health professionals) are exercises in legislative exception making, a “carving out” of small, politically achievable spheres of practice authority from the universal domain of medicine. Given this process, it is not surprising that APNs are often subjected to unnecessary restrictions of the kind I have described. The net result is a distressing catalog of dysfunctions with their attendant costs.

• Because licensure is state-based, there are wide variations in scope of practice across the country for all professions other than physicians. This inconsistency also causes additional problems because payment or reim­ bursement mechanisms tied to scope restrictions in one state can become the “common denominator” for policies applied across all states. The re­ sult is often a “race to the bottom,” in which decision makers, for reasons of efficiency and uniformity, adopt the most restrictive standards for pay­ ment and practice and apply them even in more progressive states. State A, that is, may be subject to perverse pressures to become more like State B, rather than the reverse. This dynamic has been especially problematic for APNs because they, more than most other providers, have been viewed by some in organized medicine as real or potential economic competitors.

• Access to competent care is denied to patients, especially those located in rural, frontier, or other underserved areas, in the absence of a willing and available “supervising” physician.

• Able providers are demoralized when they cannot utilize the full range of their abilities, and they often relocate to more accommodating states or leave the practice altogether, thus exacerbating the current maldistri­ bution and shortage of providers (Huang et al., 2004; Sekscenski et al., 1994; Weissert, 1996).

• Innovations in care delivery are stifled, especially in community settings that emphasize primary care, as well as in home or institutional settings for patients with chronic conditions.

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