Affordable Care Act creates scope of practice legislative scramble for healthcare practitioners

Healthcare reform is creating incentives for even more legislative scrambles by different practitioner lobbying groups for favorable legislation that will protect, preserve, and expand their own scope of practice.The way the legal rules work, medical doctors and osteopathic physicians have essentially unlimited scope of practice, subject to the standard of care and disciplinary provisions in their licensing statutes; while all other practitioners, whether conventional (dentists, nurses, psychologists, social workers, physician assistants, dental hygienists, nurse practitioners, and others) or complementary / alternative (chiropractors, acupuncturists, naturopathic physicians, and others) have limited licensure, according to a specific scope of practice carved out by statute or regulation.

However, the legislative and regulatory map for scope of practice is changing:

Pharmacists in Alabama want to be allowed to provide therapeutic inserts for shoes of diabetics.

New Jersey made sure that dental hygienists only administer nitrous oxide under direct supervision.

Colorado grappled with who can perform a specific kind of acupuncture on the ear, which can help treat substance abuse.

And doctors and nurses, who have argued for years about their respective roles and degrees of autonomy, are battling over how they will partner to provide primary care for the millions of people getting covered under the health law.

State legislatures are wrestling with all kinds of “scope-of-practice” issues — turf battles over who can provide what kind of health care, under whose supervision and for what kind of payment. And with the health law coverage expansion going into effect in earnest in 2014, the battles are sharp and numerous, particularly regarding primary care.

Everyone agrees there’s a primary care shortage, at least in underserved areas. There’s less agreement on the role of other practitioners — notably physicians’ assistants and nurse practitioners with advanced degrees — in preventing the already-strained primary-care system from buckling.

At least 1,795 scope of practice-related bills were introduced in states from 2011-12, and more than 144 were introduced in just the first few weeks of this year, according to a database run by the National Conference of State Legislatures.

The most visible battles are those about the frontiers separating nurse practitioners, nurse midwives, physician assistants from each other, as well as from physicians, in terms of who can provide primary care.

Much of the pressure to expand non-physician scope of practice comes from the increasing burden on primary care of a significantly expanded pool of insured patients under the Affordable Care Act. Medicare expansion on the ACA also increases the need for more primary care caregivers, particularly in rural and other under-served areas.

Watch for more and different kinds of legislative battles redefining the lines of practice among various healthcare practitioners.

In the old days, the battle was conventional vs. alternative, then integrative, with the notion of moving toward team-based care that integrates a variety of clinical perspectives. Now, the fight will be over who can perform what activity within their licensure, and whether this can be done dependently or independently, and if the former, with what level of supervision.

The outcome will be different state by state, and will ripple not only across primary care but also into specialized care, including care at the borderland of medicine and wellness / preventative health, such as we see in proliferation of medical spas and aesthetic medicine.

Contact our experienced legal professionals for scope of practice questions, whether in the legislative, regulatory, or clinical domain. For more in-depth information, please see our books and resources on specific healthcare law topics.