Times They Are A-Changin’: Scope of Practice Finally Gets a Closer Look

shutterstock_349748126No one should question the importance of medical training or ongoing educational requirements, nor should a health problem be addressed with anything but the expertise it requires. That said, far too often, health professionals (or perhaps more accurately their professional associations or licensing boards) focus not on what they can do and how best to do it but on what others are doing to “nip at their heels” and how to stop them in their tracks. This turfiness is preventing other health professionals from practicing at the top of their licenses, at great cost to patients as well as the system at large. It is also fundamentally anti-competitive.

For decades, scope of practice and professional licensure issues were a third-rail topic, completely untouchable, but these issues are getting a much closer look these days. The biggest indication of a new world order coming was last year’s Supreme Court decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission in which the power of a state licensing board was circumscribed significantly for the first time.

At its core, North Carolina State Board held, in a 6-3 decision, that when a controlling number of the decision makers on a state licensing board are active participants in the occupation the board regulates, the board can invoke state-action immunity only if it is subject to active supervision by the state. This decision is truly groundbreaking, as most health licensing boards are dominated by participants in the occupation they regulate and these boards historically have received very little direct state supervision. Sometimes the work of these boards seems narrowly tailored to protecting the people they serve, but sometimes it can veer into seemingly anti-competitive action with no benefit, or even possible harm, for consumers.

Based on the case, many states, often through their Attorney General, are taking a closer look at how these health boards operate and whether there are antitrust or other consumer protection concerns raised. If that decision were the only change, it alone would be a lot. But the North Carolina State Board case is not alone in rocking the very foundations of health care professional licensure. While less direct in its impact, the Medicare Access & CHIP Reauthorization Act of 2015 (MACRA) begins the implementation of new payment models as well as incentive-based payment systems that many anticipate will allow for greater participation by Physician Assistants (PAs) and Nurse Practitioners in some tasks that once had to be at least directly supervised by a physician.

For example, the significant shortage of mental health professionals in many parts of the country is forcing discussions about who can be filling the gap. In the meantime, the burden is falling primarily to General Practitioners without this specialized training. In 2013, the Veterans’ Administration reported that 60 percent of its medical centers struggle to recruit and retain mental health professionals. With this problem in mind, Senators Donnelly and Boozman introduced the Frontline Mental Health Training Act (S714) to create a pilot program which would give specialized mental health training to PAs and then test the advisability of using these PAs to address VA and DOD mental health provider shortages.

Last week Politico Pro hosted a broad discussion on scope of practice, sponsored by the likes of CVS and AARP, a clear demonstration that the issue is no longer viewed as a third rail.

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