CONTENTS I. BACKGROUND A. Nursing Practice and Competition Policy B. A Very Brief Background on FTC Jurisdiction, Interest, and Experience C. Competitors and Competition D. Exogenous Limits: No err-Pennington and the State Action Doctrine II. DISCUSSION A. Competition, Licensure, and Scope of Practice B. The Nursing Advocacies 1. APRN Regulations 2. Retail Clinic Regulations 3. Nurse Anesthetist Regulations 4. Results: Impact of Competition Advocacies 5. Some Persistent Concerns about Competition and Nursing Regulations CONCLUSION I. BACKGROUND
Nursing Practice and Competition Policy
In 2011 the Institute of Medicine released a major report on the nursing profession and its present and potential roles in U.S. health care: The Future of Nursing: Leading Change, Advancing Health, (1) Prominent in the report was concern about undue or excessive limitations on nurses' scope of practice: the first of the report's four "key messages" stated that "[njurses should practice to the full extent of their education and training." (2) The first of the report's eight recommendations was to "remove scope of practice barriers" so that they might do so. (3) The message and recommendations were based on an assessment that "[restrictions on scope of practice ... have undermined the nursing profession's ability to provide and improve both general and advanced care." (4) The gist of the Institute of Medicine (IOM)'s claim is that nurses' regulatory scope of practice, which varies state by state, (5) often proves to be narrower than the socially desirable or medically prudent scope of practice and that the space between the regulatory standard and the ideal is large enough that it is a substantial health policy problem.
To ameliorate the problem, the IOM suggests, among other things, that regulatory restrictions on the scope of practice receive attention from the federal antitrust agencies. (6) This paper considers what such antitrust therapy might entail, chiefly by explaining some of what antitrust law and policy have had to say about licensure and scope of practice already. We focus, in particular, on a species of soft antitrust intervention employed by one of the nation's two competition authorities, (7) the Federal Trade Commission (FTC). As noted by the IOM, regulatory restrictions on advanced practice registered nurses (APRNs) have been a special area of interest for the FTC's competition advocacy program. (8)
Most state practice laws recognize APRNs as a distinct category of nursing professionals. (9) APRNs are nurses with graduate degrees trained to provide a broad range of services, including diagnosis and treatment of acute and chronic illnesses. (10) They are licensed by the states in which they practice, attend accredited programs, and are certified by nationally accredited certifying boards. (11) There are four types of APRNs: nurse practitioners (NPs), nurse midwives (NMWs), nurse anesthetists (NAs or CRN As), and clinical nurse specialists (CNSs). (12)
The competitive impact of licensure and scope of practice restrictions has been a matter of ongoing concern to the FTC and its staff. In recent years, FTC staff have issued a series of competition policy analyses addressing the IOM's concern about over-strict limits on nurses' scope of practice. (13) The staffs of the FTC's Office of Policy Planning, Bureau of Economics, and Bureau of Competition (14) have observed that: (1) many geographic areas (or markets) are subject to primary care workforce shortages; (2) market forces may be slow to clear those shortages due to regulatory impediments to competition, among others; (3) such shortages may impinge upon both price and non-price competition between health care service providers; (4) in some places, such shortages may impede patient access to primary care services and may, in the limit, drive the supply of certain services to nil; and (5) scope of practice restrictions on APRNs appear under-rationalized (at best), where they purport to rest upon patient protection concerns that are not based on demonstrated patient harms or empirically grounded assessments of substantial patient risks. (15) Because restrictions on APRNs' licensure and scope of practice may come at a substantial competitive cost, FTC staff have recommended that such limits not be more stringent than patient protection requires. (16) In broad strokes, they have asked that state policymakers account for competitive costs when considering scope of practice restrictions, and they have suggested that certain costs should not be imposed on the public absent an evidence-based promise of countervailing consumer protection benefits. (17)
Our discussion will further clarify these analyses, both in their particulars and as they comprise a species of policy instrument that is often effective but sometimes misunderstood. More broadly, because competition issues may be thinly treated in some health policy discussions to which they are relevant, our paper will illustrate how a competition perspective can frame diverse health policy issues, (18) such as barriers to health care access, cost and price moderation, innovation in health care delivery models, and health care workforce labor supply. (19) Moreover, a competition perspective may be especially useful for flagging and analyzing cases where regulatory costs are significantly higher for one group of competitors than another or even, in some circumstances, as they are imposed on one group of competitors by another. (20)
Although we pay special attention to licensure and scope-of-practice restrictions for APRNs, this is not a brief on behalf of any particular group of professionals. (21) Rather, we seek to better align certain areas of health policy planning with competition policy. (22) To that end, we also outline various empirical questions that might be important to further antitrust applications, including research, competition advocacy, and, potentially, law enforcement. Such questions address both the effects of past agency action and the economic costs and benefits of the types of practice restrictions such action has targeted.
Three background sections follow: Section B sketches the FTC's jurisdiction, interest, and experience in health care competition generally, and as applied to licensure and scope of practice in particular; Section C outlines the pertinent antitrust sense of competition between and amongst physicians and APRNs; and Section D focuses on certain limits to the reach of antitrust: the "state action doctrine" and the "Noerr-Pennington doctrine." This background is important, given the bridgework that this paper seeks to construct, but readers well-versed in competition law and economics may choose to skim or skip it. The paper's main discussion, in Part II, addresses both general competition concerns about licensure and scope of practice regulations and the Commission and its staff's analyses of such concerns.
A Very Brief Background on FTC Jurisdiction, Interest, and Experience
Concerns about professional licensure and scope of practice are at the nexus of competition and consumer protection policy. This is a special area of interest for the FTC as the FTC Act gives the Commission broad authority with regard to both competition and consumer protection matters in most sectors of the economy. (23) The Act prohibits " [ujnfair methods of competition" and "unfair or deceptive acts or practices," (24) and the FTC has a statutory mandate "to prevent persons, partnerships, or corporations" from engaging...