Supervision and collaboration requirements: the vulnerability of nurse practitioners and its implications for retail health.

• Author: Battaglia, Lauren E.

1. INTRODUCTION

   Health care is expensive and scarce. (1) These problems will only grow with the recent decline in the number of new physicians pursuing careers as general practitioners, leaving patients competing for fewer available appointment slots. (2) Faced with reaching the capacity limits associated with the traditional physician-centric primary care model, focus is increasingly shifting toward improving efficiency in the delivery of care, thereby addressing both cost and access concerns. (3) One of the most promising avenues for expanding the primary care capacity of the health care system is to look beyond physicians to other categories of health care professionals in order to fill the primary care ranks--namely nurse practitioners (NPs). (4) In addition to increasing the supply of available primary care, greater utilization of NPs as primary care providers would also achieve cost savings due to lower labor costs associated with nonphysician providers. (5)

   This is the foundational concept underlying the rapidly expanding "convenient care" industry: that with a willingness to depart from the traditional physician-centric primary care model, certain categories of care can be administered not only safely by NPs, but also conveniently and inexpensively. (6) The focal point of the industry are what are known as "retail health clinics" (RHCs), (7) which are small clinics offering a limited range of basic health services, usually located within large retail stores such as pharmacies and grocery stores. (8) By staffing the clinics almost entirely with NPs, RHCs are able to provide wider access at a lower cost. (9) The potential for utilizing NPs in this independent manner is the culmination of a long, steady evolution of NPs from nurses with advanced training to professionals capable of independent practice. (10) Despite the promise of innovative health care delivery structures possible with independent NP practice, some professionals claim that certain regulatory constraints on NPs in many states keep this potential from being fully realized. (11) Web Golinkin, CEO of RediClinic, has been quoted as saying that "[i]f clinics are going to realize their full potential to provide people with easier access to high-quality, routine health care at affordable and transparent prices, some of the regulatory barriers in some states will have to be torn down." (12)

   In addition to the education, accreditation, and licensing requirements faced by most professions, NPs are also subject to a host of additional state-imposed regulations and limitations, (13) which, despite being framed as safety-based, (14) have the effect of perpetuating the traditional dominance of physicians over all other health care professions. (15) The most common examples of these types of laws are physician supervision or collaboration requirements, corporate practice of medicine prohibitions, and restrictive scope of practice definitions. (16) In states with supervision and collaboration requirements, an NP's authority to practice is conditioned upon some level of physician involvement--usually physician review of a proportion of the NP's charts, physician on-site time requirements, or mandatory collaboration between the NP and a physician in developing detailed care protocols. (17) With the significant gains made by NPs in education, training, and qualifications, the necessity of these requirements in ensuring that NPs provide high quality care comes into question. (18) In light of the reality of modern NP practice, the issue becomes whether these rules do more harm by impeding the evolution towards a more efficient delivery system (including the independent provision of care by NPs) while providing only nominal gains in quality (if any at all). (19)

   In particular, the persistence of supervision and collaboration requirements must be weighed against the costs of less vigorous competition. (20) Independent NPs are generally able to provide basic clinical services (21) at a lower cost than physicians, (22) thereby imposing significant economic pressures on general practitioners. (23) Additionally, a stream of income for physicians who currently assume supervisory or collaborative roles relative to NPs would be eliminated since such roles generally receive compensation under the current system. (24)

   Although the medical establishment has long opposed NP independence, (25) this opposition has further intensified with the advent of innovative, nonphysician based health care delivery structures such as RHCs, which increase the financial viability of NPs as low-cost competitors to physicians in certain categories of care. (26) In response to this growth, a number of states have either already imposed, or are considering, legislation specifically regulating RHCs. (27) One common thread to much of this legislation are provisions imposing more rigorous NP supervision requirements. (28) Intensive collaboration and supervision requirements detract from the vitality of RHCs as a low-cost delivery method capable of increasing access to care by threatening RHC financial viability, because they constitute one of the risks that must be addressed in opening an RHC. (29) These requirements add to the cost and complexity of operating RHCs, which are sensitive to cost changes such as these given the already complex environment in which they operate. (30)

   In this Note, I argue that states should eliminate mandatory physician supervision and collaboration requirements for NPs, as they can no longer be justified in light of the status of modern NP qualifications and practice, and may be used to stifle valuable innovation. In Part II, I review the history of the NP profession and the basic legal framework in which NPs practice. I also survey and scrutinize the ways in which these laws are being used to restrain the economic competitiveness of NPs. In Part III, I examine the ways in which supervision and collaboration mandates impact malpractice liability mechanisms and the consequences of these distortions. In Part III, I also analyze malpractice tort theories available under a regime of independent practice by NPs, arguing that these theories are sufficient to satisfy the goals of malpractice law. In Part IV, I discuss the policy implications of allowing these types of requirements to persist, with particular focus on the promise of market-based solutions centered on NPs to the access and cost problems plaguing the health care system. Finally, in Part V, I offer my brief conclusions on these issues, advocating full statutory independent practice for NPs.

2. BACKGROUND

   NPs (31) have been defined as "registered nurses who are prepared, through advance education and clinical training, to provide a wide range of preventive and acute health care services to individuals of all ages." (32) This is in contrast to the purely complementary role nurses have traditionally occupied in relation to primary care administered by physicians. (33) Connecticut was among the first states to pass a mandatory licensure law for nurses in 1939, defining the practice of nursing as the performance of certain acts "under the direction of a licensed physician." (34) In contrast, NPs are "registered nurses who qualify," and are licensed, "for advanced nursing practice by receiving a postgraduate education." (35) Since the profession was established, NPs have emerged and evolved into a licensed, well-educated, rigorously trained category of health professionals with an expansive skill set, enabling them to function on a largely independent basis. (36)

   The NP concept gained traction in the late 1960s as part of a more general expansion of the nursing profession. (37) The cornerstone of NPs, as distinct from the more common "registered nurse," (38) is that NPs are generally viewed as qualified to undertake more sophisticated and specialized acts than traditional registered nurses, much of that care requiring the exercise of independent clinical judgment. (39) In general, the tasks commonly performed by NPs range from more traditional clinical activities, such as taking patient histories, providing immunizations, and ordering lab tests and interpreting their results, to more holistic forms of care including educating patients about illnesses and health risks, and assisting in the coordination of care. (40) NPs offer an alternative source of more basic forms of care that patients previously sought from a physician. (41) As the range of care offered by NPs has expanded, NPs have become more controversial, as many general and family practitioners contend that these basic forms of primary care are essential to supporting their practices. (42)

   Today, a complex network of rules and regulations has developed from both governmental and nongovernmental sources, which frames the environment in which NPs practice. In Part A of this section, I survey the current legal framework in which NPs practice, with particular emphasis on physician supervision and collaboration regulatory regimes. In Part B, I identify and analyze recent state-level proposals to intensify existing physician supervision and collaboration requirements for NPs and the context in which these proposals are arising.

   1. Current Legal Framework

      The NP profession is rigorously regulated and monitored--both through governmental restrictions and statutes limiting scope of practice, creating education and accreditation requirements, and mandating licensure; there is also significant self-governing by the profession itself through private accrediting agencies and NP and nursing associations. (43) The primary source of rules governing NP practice are state Nurse Practice Acts and related regulations. (44) Similar to statutes relating to other professions, these laws usually define the categories of nurses authorized to practice in the state and set forth basic conditions for obtaining a license to practice as an NP in the state--including...