Empowerment of Advanced Practice Nurses: Regulation Reform Needed to Increase Access to Care

The Journal of Law, Medicine & Ethics [Vol. 21, No. 2, pp. 193-205], February 1, 1993

A fundamental principle of the health-care reform effort is to utilize human resources to their fullest potential. Advanced practice nurses (APNs) have demonstrated their ability to increase access to primary health care while preserving quality and reducing costs. Limitations on APNs’ scope of practice, prescriptive authority, and third-party reimbursement impair their successful integration into the delivery of health care.

[This policy article appeared in this law journal the same year that Hillary Rodham Clinton’s Task Force on National Health Care Reform met. Task force members related that it was used as the resource bible on effectively deploying advanced practice nurses in a reformed system.The content is as applicable and relevant today as it was in 1993.]

Abstract

In this millennial age, if national health-care reform results in basic health care becoming a fundamental right for all Americans, many more providers of primary care will be needed to care for the 35 million or so people who are now uninsured. A fundamental principle of the health-care reform effort is to utilize human resources to their fullest potential. Advanced practice nurses (APNs) have demonstrated their ability to increase access to primary health care while preserving quality and reducing costs. Limitations on APNs’ scope of practice, prescriptive authority, and third-party reimbursement impair their successful integration into the delivery of health care. These limitations are embodied in statutes and regulations and are directly amenable to legislative reform at both the state and federal levels. The President’s Task Force on Health Care Reform is recommending removal of these barriers. This article will examine the salient terms and issues, their history, political obstacles, state legislative activity, and specific recommendations for immediate action to grant APNs full legal, prescriptive, and reimbursement authority. Regulation reform to enable APNs’ effective deployment not only will better this nation’s health, but also will be the single most significant step of this century to further the profession of nursing.

Introduction

As the millennium approaches, the United States (US) is on the verge of major health-care reform. While swallowing scarce national resources, our health-care system[i] produces unenviable results and major inconsistencies. In 1992, 838.5 billion dollars were spent on health care, biting more than 14 percent out of our gross national product.[ii] From 35 to 37 million Americans[iii], or approximately 14 percent of the population[iv], are uninsured. Our health-care system is inherently inconsistent: We have the highest birthweight-specific survival rate of any country in the world, yet we rank 19th worldwide in infant mortality rate[v], i.e., state-of-the-art medical technology allows us to save a 500-gram infant[vi], yet the mother of that infant may not have had access to basic, minimal prenatal care.

At this writing, the President’s Task Force on National Health Care Reform has adjourned, having met its charter. In the beginning, stakeholders were numerous and vociferous even to the point of suing for entry to meetings, yet nurses had a voice on the Task Force. Approximately 20 nurses were key participants in the process, as members of working groups, technical advisory groups, and as reviewers of the final report.[vii] As expressed by Task Force representatives Ira Magaziner, Senior White House Advisor, and Donna Shalala, Health and Human Services Secretary, fundamental principles of health-care reform include guaranteed access to primary and preventive care for both children and adults, continued quality of care, cost-containment, and elimination of barriers to practice for advanced practice nurses. If the recommendations of the Task Force regarding deployment of advanced practice nurses are addressed, regulations constraining APNs’ proven ability to provide primary and preventive health care will become a matter of national debate.

If national health-care reform defines basic health care as a fundamental right for all Americans, many more providers of primary health care will be needed. Even now, when health care is considered by many to be a privilege[viii], there is a shortage of providers. A fundamental principle of health-care reform is to make the fullest use of human resources. Primary care, the type of care required by most Americans, is provided by nurse practitioners (NPs) or physicians, and the current shortage of these providers results in delayed and more costly care. If advanced practice nurses were used to their full potential, an estimated 6.4 to 8.75 billion dollars would be saved annually.[ix] Reasons for the shortage are complex; they include economic disincentives for physicians and legal barriers for nurse practitioners.

With regard to the physician shortage, practicing primary-care physicians are aging and retiring from practice, and replacement opportunity is diminishing.[x] There is a clear economic disincentive and disinterest in specializing in this type of care. Indeed, this specialty is among the lowest-paying; in 1985 to ’86, the income of family and general practice physicians was 32 percent less than the average physician.[xi] Geiger reports a “huge difference between specialty and primary care practice incomes”.[xii] The technical procedures performed by physicians who subspecialize are rewarded by third-party payers far more than the cognitive and interpersonal skills inherent in primary care. Not only is there a low percentage of medical residents specializing in primary care, but also the trend to specialize in this area is declining. The percentage of physicians practicing a primary-care specialty declined from about half in 1963 to about one third in 1986.[xiii] In 1991, only eight percent of US medical residents specialized in family practice.[xiv]

The nurse practitioner shortage is due to discriminatory laws at state and national levels which impose legal constraints to independent practice. The National Alliance of Nurse Practitioners estimates that 6,400 NP positions remain vacant.[xv] Legal limitations on APNs’ scope of practice, prescriptive authority, and third-party reimbursement impair their successful integration into the delivery of health care.[xvi] These barriers prevent large numbers of APNs from working efficiently and discourage them from staying in the field. Since all three barriers to practice are embodied in statutes and regulations, they are directly amenable to legislative reform at both the state and federal levels.[xvii]

This article explores the complex issue of regulatory constraints on advanced practice nursing and makes specific recommendations for immediate legislative reform. Removal of practice constraints will promote access to cost-effective, high-quality primary health care, thus bettering this nation’s health.

Term/Concept Clarification

Intelligent, productive public debate on this issue must be based on a clear understanding of the salient terms and concepts.

What is primary care?

Primary care is the type of care usually sought at the initial contact with the health-care system for the treatment of common (acute and chronic) illnesses. Primary care is basic, general health care which is ideally offered in an outpatient (ambulatory) or community setting.[xviii] This care is client-oriented and considers psychosocial as well as biological needs. The care is comprehensive, continuous, coordinated, and is considered to be holistic in its scope. Effective practitioners of primary care inherently possess enhanced interpersonal and cognitive skills, which have largely been undervalued by payers. Prevention is emphasized, utilizing measures such as screenings, assessments, and immunizations.[xix]

Who are advanced practice nurses?

APNs provide primary care to children and adults in a variety of settings such as community health centers, public health departments, hospitals and hospital clinics, school and college student health centers, business and industry employee health clinics, NP offices, physician offices, health maintenance organizations, nursing homes and hospices, home health-care agencies, and the Armed Forces and Veterans’ Administration facilities.

APNs are registered nurses whose formal education and clinical preparation extend beyond the basic requirements for licensure, resulting in either a certificate or master’s degree. APNs are prepared and experienced in delivering holistic care which integrates the physical and psychosocial components of patient health status, thus correcting for expensive and ineffective fragmented care. Care provided by APNs emphasizes early intervention and ongoing management of patient health status, enabling patient needs to be met effectively. Specialties of advanced practice nurses include certified nurse midwives (CNMs), certified registered nurse anesthetists (CRNAs), clinical nurse specialists (CNSs), and nurse practitioners. Various APN subspecialties include neonatal, pediatrics, women’s health, family practice, adult health, psychiatric/mental health, school/college health, and geriatrics. APNs assume high levels of responsibility for patient care and safety, such as the duty of the psychiatric/mental health clinical nurse specialist to warn third parties of homicidal intentions of the patient.[xx] Certified nurse midwives and nurse practitioners have a central role in providing primary care.

CNMs have received advanced preparation in midwifery. CNM practice includes the independent management of care of normal newborns and women–antepartally, intrapartally, postpartally (including family planning), and/or gynecologically. They practice “within a health care system which provides for medical consultation, collaborative management, and referral”.[xxi]

CRNAs provide anesthesia for dental, surgical, and obstetrical procedures. Although CRNAs are not primary caregivers, their technical services are needed for procedures recommended by primary-care providers. CRNAs are the sole anesthesia providers in approximately 30 to 35 percent of all hospitals, 85 percent of which are located in rural areas.[xxii]

Nurse practitioners are prepared to perform a wide range of professional nursing functions including obtaining medical histories, performing physical examinations, providing prenatal care and family planning services, providing well-child care including screening and immunizations, providing health maintenance care for adults such as annual physical exams, promoting positive health behaviors and self-care skills through education and counseling, and collaborating with physicians and other health professionals as needed. NPs are also prepared to perform certain functions traditionally performed by physicians, including the diagnosis and management of common acute health problems such as infections and minor injuries, as well as common chronic diseases such as diabetes and hypertension. NPs may order and interpret diagnostic studies such as lab work and x-rays, and prescribe or recommend prescriptions for medications and other treatments.

Whereas physician practice has traditionally been based on “curing” (diagnosing, treating, and prescribing), nursing has taken on the responsibility of “caring”, and APNs may be said to combine caring with curing. APNs are committed to establishing basic health care for all, health promotion and maintenance, increased quality of care, and the promotion of informed consumers.

How does the quality of care of APNs compare with that of physicians?

Health-care effectiveness is based on three criteria: quality, access, and cost. Hundreds of effectiveness studies have been underway for more than 20 years to study care provided by APNs. Interestingly, systematic study to evaluate care provided by physicians was not undertaken until recently, 1989, when the current perceived health-care crisis[xxiii] prompted policymakers and payers to inquire into the quality and cost-effectiveness of services actually rendered. According to Louis Sullivan, previous Secretary of Health and Human Services, “The problem is, for many medical treatments, we don’t know what works and what doesn’t, and for whom it works and for whom it doesn’t”.[xxiv]

The most comprehensive study to date of APNs was undertaken by the Office of Technology Assessment (OTA) in 1986 in response to a request from the Senate Committee on Appropriations.[xxv] This exhaustive study analyzed numerous studies assessing quality of care based on measures of process (what a provider does to and for a patient) and outcome (the result of patient care, i.e., health status) as well as on patient satisfaction and physician acceptance. The study concluded that, within their areas of competence, care provided by NPs and CNMs was equivalent to that provided by physicians. The OTA study also found that relating to patient satisfaction, NP and CNM care was superior to that of physicians, especially with regard to shared control[xxvi], quantity and quality of information given, reduction of professional mystique, and costs of care. The study also noted that successful malpractice cases against NPs are extremely rare.

A 1988 study by the Institute of Medicine (IOM) concluded that NPs and CNMs “are particularly effective in managing the care of pregnant women who are at high risk because of social and economic factors”.[xxvii] This same IOM study recommended “increased use of [CNMs] and obstetrical nurse practitioners; state laws and physicians themselves should support hospital privileges for CNMs and collaboration between physicians and [CNMs and NPs]; eventually, large interstate variations in the laws governing the use of such midlevel[[xxviii]] practitioners should be eliminated….”[xxix]

Barbara Safriet writes, “The quality of care provided by NPs and CNMs is crucially important for two reasons. First, their effective deployment depends upon their ability to render care that is safe and effective; only when that issue is settled do questions of relative cost and access become relevant. Second, the most often articulated basis for physicians’ opposition to these…providers has been concern about their ability to provide such care…however, virtually all of the studies to date have demonstrated that the quality of care rendered by NPs and CNMs is at least equivalent to that provided by physicians for comparable services.[xxx]

A Little History

A brief look at history promotes an understanding of the legal struggle APNs have endured to provide the primary health care for which they are prepared. History not only reveals who in America were the traditional healers and curers, but also the sociology, psychology, and political and legal maneuvering that established professional turf. Events of history have shaped the rugged course APNs have navigated.

As early as the Colonial period, women were serving as autonomous healers or general practitioners, as well as midwives.[xxxi] Anne Hutchinson, a religious reformer, was a general practitioner; Harriet Tubman, an African-American leader who guided many slaves to freedom, worked as both nurse and doctor.[xxxii] Prior to the era of industrialization and domination of medicine by men, women were an autonomous and primary healing group.[xxxiii]

In the 1800s physicians staked claim to all healing turf by establishing themselves as the legal and official medical profession. They established organizational structures designed to preserve professional dominance and autonomy.[xxxiv] Sociologist Paul Starr reflects, “By the mid-twentieth century, the strategic position of the medical profession in relation to hospitals, health insurance, and the pharmaceutical industry became pivotal in sustaining the profession’s economic position, superseding the earlier role played by their monopolization of practice….Throughout the medical system, the profession was able…to establish organizational structures that preserved a distinct sphere of professional dominance and autonomy.”[xxxv] Eliot Freidson, medical sociologist, states that the formal hierarchy created by physicians is politically supported and is fundamental to the inadequacy of health services.[xxxvi] Thus, women, the “lay” healers, were negatively valued as they were relegated to a subsidiary position. This medical division of labor was the basis of sexism in health care and contributed to the downgrading of the nurse.[xxxvii]

The perceived shortage of primary-care physicians in the ’60s and early ’70s led to the growth and development of a new health-care provider–the nurse practitioner. Access to health care became a political issue in the mid ’60s with the rise of President Johnson’s “Great Society” and the civil rights movement.[xxxviii] At minimal additional cost and educational preparation, nurses could deliver primary health-care services safely to selected populations.[xxxix] Physicians voiced little resistance, as the movement was viewed by medical doctors as a physician-controlled method of increasing their profits or providing health care for less desirable markets (poor and rural populations).[xl]

By the mid ’70s, however, a physician oversupply was perceived with immediate anti-NP sentiments reflected in the policies of the AMA and the American College of Physicians, which clearly indicated that medicine was not willing to delegate tasks in a shrinking marketplace. A physician-dominated health-care system threatened NP employment and halted expansion of NP preparation and education programs. Practice relations between NPs and physicians remained politically, legally, economically, and clinically unequal. Third-party reimbursements were seldom, if ever, made for NP services, and physician practice roles were defined and protected by statute, whereas NP roles were not. NPs were required to assume a (directly or indirectly) supervised role when performing historically defined physician tasks. In the mid ’70s, the NP movement would have died altogether had it not been for medicine’s eroding power, demands from impoverished and rural populations for health care, and pressure from government and business to cut health costs.

Various explanations arose for the continued dominance of APNs by physicians. Some commentators reduced the deferent social, political, and economic role of NPs to physicians to psychology: the passive personality of the nurse–the nurse was not assertive, or chose to be deferent. These traits were blamed on nursing education.[xli] Physician dominance has also been explained in economic and political terms. An exhaustive study by Koch, Pazaki, and Campbell of the first 20 years of nurse practitioner literature[xlii] reveals how sociology, psychology, history, politics, and economics have influenced the movement. Koch et al. concluded that the interrelated factors of labor market competition (discussed above) and professionalization have determined the course of the NP movement.[xliii] Sociologists, including Eliot Freidson, attribute the pursuit of autonomy as part of the professionalization process.[xliv]

Meanwhile, NPs, as an occupational group, strove to gain autonomy, a particularly arduous task given medicine’s control of the health-care system. In the late ’70s and ’80s the increasingly competitive health-care market in conjunction with the professional/ autonomy concerns of NPs account for APNs’ seeking autonomous practice, unfettered economic reimbursement, hospital privileges, and prescriptive authority. As Koch et al. wrote, “a clinically sound and economically viable NP profession depends on autonomous access to these political, economic and health care resources.”[xlv] In 1973, Schaefer called for nursing to organize and present a united political front on salient health policy issues to assure the future of nursing.[xlvi]

The “team” concept of NPs and physicians described in the literature of the late ’60s and early ’70s had an authoritarian/coercive potential to limit the behaviors and ideals of its members, as well as to develop conformist rather than democratic or egalitarian ideals. For example, a nurse was criticized if she was not a “team player”. During this period, NP roles were increasingly being defined in egalitarian terms in an attempt to end structured physician control. After 1980, “team” integration was rarely discussed in the literature, and the concept gave way to the notion of “joint practice”, and later to private practice.[xlvii]

It is significant that NP and CNM roles evolved historically in response to a lack of basic health services for certain populations, areas where physicians chose and continue to choose not to serve. APNs have provided a full range of care to people in rural and impoverished, inner-city areas. From the Frontier Nursing Service’s origins in 1925[xlviii] in the hills of eastern Kentucky to the inauguration of NP educational programs in Colorado in 1965[xlix], a sustained goal of APN deployment and preparation has been the provision of basic health care to populations that otherwise would have had none.

Legal Barriers to Effective Utilization of APNs

The barriers to effective utilization of APNs are the conflicting and restrictive provisions governing their scope of practice, prescriptive authority, as well as the parsimonious and fragmented state and federal standards for reimbursement. It should be noted that organized medicine, largely through lobbying, has played a central role in creating and perpetuating the states’ contradictory and constraining provisions for APN practice.[l] The states’ political support of organized medicine’s anti-competition agenda not only subjects APNs’ professional role to unwarranted diminution, but also limits the public’s access to safe and effective health care.

 

Scope of Practice

The states have police power to protect the public regarding health care, the premise being that not all consumers have adequate information to make safe, considered judgments about the abilities and qualifications of potential providers. Hence each state and territory has enacted licensing laws for nurses, physicians, and other health-care providers. The state restricts practice to those who have satisfied licensure requirements.[li]

Physicians were the first health-care practitioners to gain legislative recognition of their practice. In the mid to late 1800s a very highly organized effort was made to obtain physicians’ exclusive right to practice.[lii] Through statute they broadly defined their scope of practice to include curing: diagnosing, treating, and prescribing. The all-encompassing definition was invariably accompanied by a provision which made it illegal for anyone not licensed as a physician to carry out any acts included in the definition. Thus, the medical profession positioned itself to totally and legally occupy the health-care field. Nursing has had to “carve out” tasks or functions from the medical scope of practice to seek legislative recognition for its professional role. Efforts to regulate nursing while accommodating this historical medical preemption phenomenon have been painfully difficult.

In the early 1900s, the first state nursing laws enacted registration or certification of nurses. In the 1930s, mandatory licensure of registered nurses created a potential for interprofessional conflict. Conflict was avoided, however, by nursing’s narrowly defining its independent functions only as the supervision of patients, observation of symptoms and reactions, and the accurate recording of facts. The remainder of nursing’s scope of practice was dependent or complementary to the physician.[liii] To illustrate the tradition and longevity of nursing’s dependent scope of practice, Florence Nightingale’s work during the Crimean War was dependent on physicians’ willingness to allow her nurses to enter the battlegrounds to provide care to injured soldiers.[liv]

In 1955, the American Nurses Association (ANA) further developed a definition of nursing which did not require physician supervision of all nursing functions, but did prohibit nurses from diagnosing and prescribing treatments, and limited implementation of treatments and administration of medicines to those specifically prescribed by physicians.[lv] Even as states were adopting this definition, it was found to be unduly restrictive when compared with actual nursing practice. A professional consortium of medicine, hospitals, and nursing issued joint practice statements declaring that nurses could perform a number of tasks that would implicitly constitute the practice of medicine, such as performing cardiopulmonary resuscitation, starting intravenous fluids, and using defibrillators. These joint statements did not constitute law, but they did reflect a professional consensus that nursing was capable of carrying out certain traditionally medical tasks on their own initiative and without medical supervision.[lvi]

Safriet[lvii] points out that several events of history in the mid 1960s contributed to expanded roles of nursing. The birth of Medicare and Medicaid increased the number of people legally entitled to government-subsidized health care. The federal government forecast a shortage of primary-care physicians. The first formal nurse practitioner programs were established. Specialized care units such as coronary care and intensive care units were created in hospitals. The growing women’s movement emphasized autonomy for women along with a greater demand for nurse-midwife services by women who perceived medical services to be male-dominated and hierarchical. Finally, physician assistant programs for medical corpsmen returning from Vietnam demonstrated that medical tasks could be performed effectively by non-physicians.

In 1971, the federal Department of Health, Education, and Welfare issued a report stating that nursing must “encompass a substantially larger place within the community of health professions…that extending the scope of practice of nursing practice is essential if this nation is to achieve the goal of equal access to health services for all its citizens…. [F]unctions of nurses are changing primarily because nurses have demonstrated their competence to perform a greater variety of functions….”[lviii] Also in 1971, Idaho became the first state to statutorily recognize diagnosis and treatment as part of the scope of practice of APNs. Unfortunately, the statute required that acts of diagnosis and treatment be authorized by rules and regulations jointly promulgated by the Idaho boards of both nursing and medicine, and that every institution that employed NPs was to develop guidelines and policies for their practices in those settings. These added stipulations resulted in unwarranted constraints on practice.

Such has been the history of state regulation ever since. In the past 22 years, nearly all states have legally acknowledged in varying degrees the expanded roles of APNs. As with all complex public policy, forms of acknowledgment include specific designation in statutes or agency rules, statutory interpretations by attorneys general and courts, and declaratory rulings by agencies. The many years of states’ struggle with APN scope of practice has led to legislation which is unduly restrictive and perpetually contradictory.

Prescriptive Authority

The legal authority to prescribe drugs is central to APNs’ effective practice. Less than 55 years ago, not only did consumers have access to all the drugs now classified as non-narcotic prescriptive drugs, but also many nurses worked independently from physicians and made drug therapy recommendations within their normal scope of practice.[lix] The landmark 1938 Federal Food Drug and Cosmetic Act changed all that. This law terminated consumer control over choice of medications, even though such was clearly not the intent of that law.[lx] Physicians were chosen as the providers to select medications mainly because they held an established, defined position within the health-care field. Pearson notes that this assignment of prescriptive authority to physicians insulated the profession well within its hierarchical arrangement of social privilege and economic power.[lxi]

Prescription drugs include legend drugs[lxii], and narcotics or controlled substances listed on various schedules established by the federal and state governments.[lxiii] The first limited prescriptive authority was granted to APNs in North Carolina in 1975, and there are currently explicit regulatory or statutory provisions in 43 jurisdictions, with proposals pending in legislatures in several other states.[lxiv]

Safriet points out that the policy issue “is not whether these providers can and do prescribe, but rather, whether the state will acknowledge and authorize their prescribing practices.”[lxv] In states without legislative authority to prescribe, APNs still actively prescribe for their patients through one or more of the following mechanisms: 1) asking a physician to write a specific prescription for the APN’s patient, 2) calling the prescription into a pharmacy under the physician’s name, 3) co-signing the physician’s prescription pad, and 4) using protocols jointly worked out with the APN, physician colleague, and dispensing pharmacist.[lxvi] These practices are common and of ambiguous legality, but necessary given the limited availability of authorized prescribers.[lxvii]

States vary principally with regard to the degree of autonomy (professional independence in decision-making) and the range of drugs from which they are permitted to select. Many states severely limit prescriptive authority by imposing requirements for written protocols[lxviii] and physician supervision or direction, and by laying out formularies[lxix] specifying which drugs may be prescribed. Some states restrict or vary prescribing authority to certain geographic or practice settings.[lxx] Alaska, Oregon, and Washington authorize the greatest prescriptive autonomy. In these states APNs may prescribe without any physician involvement, and none of these states requires physician control of APN practice, including diagnosing, treating, and prescribing.[lxxi] These three states may thus be the testing grounds for the adequacy of the APN role to meet access, cost, and quality requirements of reasonable health-care reform.

Reimbursement

At both the federal and state levels, unjustly discriminatory reimbursement laws leave APNs reimbursed indirectly (in most instances), at a significantly reduced rate, and for a narrow range of services. APNs will not be able to practice independently or on a collegial footing with physicians without adequate reimbursement, and a substantial number of people now without care will continue to be denied access to the primary-care services ably provided by these APNs.

The reimbursement policy questions are: Relating to scope of practice, for which services will APNs be reimbursed? At what level will APNs be reimbursed for eligible services that are the same as those provided by physicians? Will reimbursement be made directly to the APN or billed through physicians?

Federal reimbursement policy is critical to the future of APNs, given the presence of Medicare[lxxii] and Medicaid[lxxiii] and the tendency of both state insurance regulators and private insurers to follow the federal government’s lead.[lxxiv] Medicare Part B services were traditionally paid on the concept of “reasonable charge payment”. Escalating costs led Congress to pass the Comprehensive Omnibus Budget Reconciliation Act (COBRA) of 1985 which directed the Health Care Financing Authority to develop a resource-based relative value scale (RBRVS) reflecting the value of physicians’ services. COBRA 1985 also directed the creation of the Physician Payment Review Commission (PPRC) to make recommendations for reform of Medicare payment to physicians.

The RBRVS was developed by William Hsiao of Harvard and replaced the reasonable charge system.[lxxv] The original Harvard/Hsiao study contemplated variation in payment among physicians based on the opportunity cost of their training.[lxxvi] The PPRC, however, in its influential 1989 report to Congress[lxxvii] explicitly rejected the differential for training costs, stating clearly that physicians should be paid the same when the service is the same. Congress reformed the system of compensating physicians under Medicare with the Omnibus Budget Reconciliation Act (OBRA) of 1989.

APNs are subjected to severe reimbursement limitations under the Act. Certified nurse midwives are covered only for services throughout the maternity cycle[lxxviii], not for family planning or gynecological care. CNM maternity cycle services are reimbursed at 65 percent of the physician fee schedule amount. Basic situations are specified in which NP services are covered under Medicare, and each requires that the NP work in collaboration[lxxix] with a physician. NP reimbursement is “capped” at a percentage of the physician fee schedule for the few NP services which are covered. OBRA 1989 specified Medicaid coverage to certain NP specialties, specifically, covering the services of family and pediatric NPs. This restrictive language is a problem in states where NP designations differ, e.g., pediatric NP is, instead, “school NP”. Finally, NPs can be directly reimbursed for services only in rural areas.

Interestingly, once the issue of payment to non-physician providers arose, the PPRC reversed its position. The 1991 PPRC report to Congress[lxxx] stated that a payment differential for services should reflect differences in opportunity (or training) costs of the providers–either ignoring or forgetting its earlier insistence on equal payment for equal services. The PPRC departs from logic in insisting on differentials for opportunity costs for one group, but not for another.

State actions determine APN reimbursement. The states have broad discretion in determining both fee levels and payment methodology for Medicaid, and most states use either fee schedules or reasonable charge reimbursement. Also, states regulate the insurance industry, and entry into private practice requires direct access to third-party, private insurers. Currently 24 states mandate by statute some level of direct third-party reimbursement for CNMs and NPs.[lxxxi] The majority of these states have mandated that any service covered for other providers shall be covered for APNs operating within their state-defined scope of practice.

One argument against expanding direct reimbursement for APNs is the increased costs to the system through greater utilization of services. If APNs are empowered and choose to practice independently, a substantial number of people now without health care will have access to health care provided by APNs whose focus is on primary and preventive care. By expanding opportunities for reimbursement, a substantial improvement in the health status of the population may be realized through availability of cost-effective, high-quality primary and preventive care. Safriet suggests that the principle question is not whether costs would increase, but whether the benefits of improved health status outweigh the potential marginal cost increase.[lxxxii]

When the inevitable health-care payment paradigm shift occurs, the authors hope that current payment methodologies will be replaced with a fair, rational payment system that promotes accountability by rewarding favorable patient outcomes, breadth of experience, and educational opportunity costs. We are not urging that APNs make, under a capitated system, the same annual income as generalist physicians, which typically is greater than $100,000 per year. The authors also do not endorse the retrospective fee-for-service payment scheme. However, while fee-for-service exists, we strongly urge that APNs be reimbursed at the same rate as other providers for the same service. Even if APNs are reimbursed equally with physicians, direct and indirect costs involved with APN practice are lower–training costs are lower, and treatment modalities used by APNs are typically less invasive and less expensive.

 

Political Obstacles

Political obstacles to passage of legislation empowering APNs are many and varied. For simplicity, we have divided them into three spheres–pragmatic political considerations, economic trends, and the opposition.

Pragmatic political considerations

Several practical components of the issue of APN empowerment result in a complicated and arduous legislative process.

Familiarity The public’s familiarity with APNs has been an obstacle in the legislative realm, as legislators have difficulty passing bills that do not deal in the mainstream. There is a considerable amount of public and professional ignorance regarding APNs. Although APNs’ visibility has been somewhat low, relatively recent events have increased the public’s familiarity with APNs: the advent of managed care, which utilizes NPs extensively, and the President’s Task Force on National Health Care Reform with its recommendations to fully utilize APNs. As the term nurse practitioner or advanced practice nurse becomes a common household word, legislation will flow more easily.[lxxxiii]

Self-service A perception of self-service may also be an obstacle. Policymakers may interpret nursing’s push for APN legislation reform as self-serving, and thus be reluctant to act.

Conflict An appearance of intra- and/or inter-professional conflict is another political obstacle, as policymakers are hesitant to act if they sense conflict within or among professional groups. Interestingly, a lack of commitment to the role of APNs even within nursing is not unknown throughout the states, although recent attention given APNs by the President’s Task Force on National Health Care Reform has served to focus nursing on the issue. Leaders of state nurses associations (SNAs) must become thoroughly informed and versed on APN issues and serve as strong legislative advocates for APNs, even if it means temporarily destabilizing relations with medicine. SNAs must place the empowerment of APNs as a legislative priority, as it not only represents a potential of monumental significance to improve this nation’s health, but it may also be the single most important step of this century to further the profession of nursing.

Cost Cost is another obstacle. The empowerment of APNs will initially entail increased cost as people currently without care gain access to willing and able providers. It is, however, obvious that costs of acute intervention for increased morbidity due to delayed care exceed costs of primary, preventive care, at least on a per-patient basis and perhaps on the entire patient population.[lxxxiv] Cost should be distinguished from cost-effectiveness, which is determined by a relative assessment of patient outcomes or changes in health status. The personal cost in human anxiety, suffering, and tragedy should be factored into any reasonable calculation of cost.

The President’s Task Force on National Health Care Reform appears to be acutely aware that one way to gain some control over escalating health care expenditures is to pay attention to the mix of primary-care providers and the way in which they are organized. The Task Force has expressed an awareness that APNs can and do deliver primary care far more cost-effectively than physicians while maintaining quality. The 1989 Medical Outcomes Study found that even controlling for patient mix, specialists tend to use more resources than general internists, and general internists tend to use more resources than family physicians.[lxxxv] Medical specialists charge more, and are paid more than generalists for identical services.[lxxxvi] Like the more generalist physicians, APNs prefer less invasive, less expensive treatment modalities than do specialty physicians.

A short discussion of measles should illustrate the cost savings potential of APN empowerment and health-care reform.[lxxxvii] The recent tragic measles outbreak could have been entirely prevented with proper immunization, which is emphasized in both the education and practice of RNs as well as APNs. Nurses are responsible for immunizing children in a variety of settings from neonatal intensive care units (ICUs) to the public schools. In 1990, in the Dallas, Texas metropolitan area alone there were 2,200 confirmed cases of measles.[lxxxviii] For every dollar spent on measles-mumps-rubella programs, 14 dollars are saved in medical care to treat those diseases.[lxxxix] More than 20,000 dollars per day may be spent in a typical seven to 10-day stay in an ICU to treat complications of measles[xc] (typically pneumonia or encephalitis). The deployment of APNs will allow a focus on preventive, cost-effective care.

Crisis Whether or not APN deployment is considered to be a crisis affects regulation reform. Only about a quarter of proposed bills pass, and those that do are perceived as crisis measures. Even though there is widespread agreement that access to health care is a crisis, the literature has been replete with the health-care “crisis” for many decades.[xci] The Clinton administration, however, has placed substantive health-care reform on the legislative agenda, and Congress readies for battle. State legislatures will follow.

Economic Trends

An unstable economy has resulted in many economic trends which militate against reimbursement regulation reform for APNs. These include the trend away from direct reimbursement to individual providers, the trend toward payment for “bundled” (grouped) services, or even for capitation[xcii] as a payment methodology, and the trend toward managed care (which utilizes nurse practitioners extensively) because it is a capitative type of system. Another factor adversely affecting reform efforts are the large and increasing percentage of the population who are un- or underinsured or covered by low-pay government health programs as compared to the population covered with private pay rates. There is an approaching limit to which cost-shifting by hospitals and private providers can be accomplished for low pay/no pay services to private payers. The growing inability of consumers to pay for deductibles, co-payments, or balanced billing charges due to the changing economic status and shrinking middle class of the American public is also a factor. Business and industry concerns about the impact of their employee health-care costs on their competitiveness in a global economy is another factor.

The Opposition–Who’s Afraid of Advanced Practice Nursing?

Nursing and policymakers who support empowerment of APNs to increase access to care must have full knowledge and understanding of the opposition, whose concerns are rooted in economic considerations.

Most physicians and their organizations Medicine perceives the APN movement as a means for nursing to gain additional autonomy and broader scope of practice. Physicians understand that there is a finite amount society can afford to pay for health care, and they will not willingly share their traditional piece of the pie with anyone. However, antitrust cases have been successfully fought against groups of physicians for restraint of trade.[xciii] It is no coincidence that APNs have most autonomy in states with serious shortages of primary-care physicians. The objections raised by physicians are based on quality and safety concerns, even though hundreds of studies, including those by the Institute of Medicine and the Office of Technology Assessment, have repeatedly repudiated such concerns.

•  Private insurance companies The perception that APN empowerment will cost private insurance companies more money, even though beneficiaries have already paid for services, ensures their opposition. Insurance companies benefit financially from patients’ not being able to take advantage of covered services, which is one reason coverage is limited to selected, named providers and other conditions are placed on payment. Like physicians, insurers continue to raise objections to APNs based on quality and safety, choosing to ignore extensive evidence to the contrary.

Health policy analysts Health-care finance experts believe the fee-for-service system is at the root of out-of-control health-care costs. As Enthoven and Kronick write, “The dominant open-ended fee-for-service…system pays providers more for doing more, whether or not more is appropriate.”[xciv] This group is not supportive of opening up this payment methodology to other provider groups. Indeed, with this methodology, providers, as physicians have shown, raise their set charges to the limits the market can bear. Health policy analysts who call for increased access to care often will not support payment methodologies which will provide the incentive for its realization. Even though the fee-for-service payment methodology has conspicuous defects, especially with regard to incentive, APNs must work within the current system. APNs, who utilize less expensive and less invasive treatment modalities than physicians, must have the authority to directly bill through this means to be able to practice and increase the public’s access to health care.

Employers, particularly hospitals Legislation allowing direct reimbursement of APNs may be interpreted by hospitals as a prelude to direct reimbursement of all nursing services. Hospitals may oppose such legislation since the economic benefits derived from income-generating employee subsidies to cover operation costs could be reduced.

Legislators Even though these individuals almost universally agree on the need for increased access to health care, they may oppose proposals to empower APNs, as they perceive increased access as increasing costs to taxpayers and to other powerful constituents, such as insurance companies. Organized medicine strongly opposes measures to empower APNs, and legislators may not want to alienate this group. In 1992, political action committee Congressional contributions from the American Nurses Association amounted to more than $300,000, a modest sum compared with the American Medical Association’s contribution of nearly 3 million.[xcv]

State Legislative Activity Affecting APN Practice

A variety of approaches has been used by state legislatures to extend nursing’s scope of practice. Some opt to revise Nurse Practice Acts by deleting absolute prohibition of diagnosing and treating, adding “nursing diagnosis”, adding an “additional acts” clause, or authorizing certain specially trained nurses to perform acts of medical diagnosis and treatment. In many states physicians are required to be present when NPs and CNMs deliver care. A multitude of restrictive reimbursement schemes either refuse to pay APNs for their services or funnel their payment through physicians or hospitals and other institutions. These same reimbursement schemes allow for only a portion of the fee that would be paid to a physician, if payment is allowed at all, even though the service is exactly the same with the same quality outcome.

A state-by-state account is beyond the scope of this article, but may be found annually in the January issue of Nurse Practitioner: The American Journal of Primary Health Care. In addition, the National Council of State Boards of Nursing’s State Nursing Legislation Quarterly reports recently enacted or proposed legislation regarding the nursing profession. The following is a summary of legislation through 1992 of the states’ efforts to govern APNs’ scope of practice, prescriptive authority, and reimbursement standards.

Legal Authority

To remove the practice barrier related to scope of practice, the legislative goal is for advanced practice nursing to be regulated and administered solely by each state’s Board of Nursing (BON). APNs in 37 states are regulated by their state BONs through specific regulations. In an additional eight states, APNs function under a broad Nurse Practice Act, but with no specific title protection. In six states APNs are regulated by both the state boards of nursing and medicine, which represents a significant restriction of APN practice.[xcvi]

Prescriptive authority

In February, 1991, a federal administrative barrier was added to legal barriers that would have severely restricted APNs’ prescriptive authority and thus their effective utilization. The Drug Enforcement Administration (DEA) proposed regulations to define APNs as “affiliated practitioners” and designate these affiliated practitioners as agents or employees of “traditional” (physician) providers; NP applications for new DEA registration numbers were denied.[xcvii] This situation was untenable, as DEA numbers are necessary not only for direct patient care, but also for the provider-tracking mechanisms used by insurance companies. Fortunately, in 1992 this federal administrative barrier to prescriptive authority was removed. The DEA proposed establishing a separate category of registration for “midlevel providers”[xcviii] under which APNs would receive their own individual DEA registration numbers. Thus, APNs would be allowed to dispense controlled substances, schedules II through V as allowed by state law.[xcix]

APNs in 43 states, including the District of Columbia, have some degree of legislated prescriptive authority. Within these states there is wide disparity in degree of prescriptive autonomy. Basically, prescriptive authority for APNs can be described as independent or dependent relating to physician control. Independent prescriptive authority must meet the following three criteria: be authorized and administered by the Board of Nursing, have no requirement for physician signature, and be considered within the nursing scope of practice (not statutorily defined as a delegated medical act). Using these criteria, 22 states have statutory APN independent prescriptive authority; seven of these 22 states do not allow independent prescription of controlled substances. The remaining 21 of the 43 states have statutorily defined dependent prescriptive authority; nine of these 21 states authorize APNs to prescribe controlled substances; the remaining 12 limit APNs to prescribing noncontrolled substances.[c]

Reimbursement

APNs are eligible to receive direct third-party reimbursement, i.e., payment from private insurers, in 38 states, although only 24 states have legislatively mandated third-party reimbursement to APNs. APNs have achieved authority for the direct payment of their services under the four federal health programs: Medicare (including reimbursement for care of nursing-home and rural-area residents), Civilian Health and Medical Programs (CHAMPUS), the Federal Employee Health Benefits Program (FEHBP), and Medicaid.[ci] Medicare has been implemented for specified types of APNs in 18 states. Health Care Financing Administration (HCFA) regulations give each state Medicaid agency the option to reimburse pediatric NPs and family NPs in accordance with state policies and regulations. It is difficult to determine which states are in compliance, as many states devise confusing smoke-screens or loopholes to complicate APN reimbursement. Rules and regulations in 42 states, an increase of 17 states since 1990, enable APNs to receive Medicaid reimbursement equal to or somewhat less than that paid to physicians.[cii]

This summary of conflicting and restrictive state legislation on APN practice not only reveals the quagmire, but also shows that legal barriers are slowly but surely crumbling. Despite forward strides, APNs are still disabled from fulfilling their proven potential to enhance this nation’s health by improving access to care.

Recommendations

Federal Level[ciii]

To promote the most effective use of APNs, with regard to reimbursement, the federal government should:

• expand reimbursement to those services provided by APNs within their scope of practice.

• eliminate restrictions of certain covered APN services to specified geographic or practice settings (e.g., rural areas or skilled nursing facilities).

• eliminate any requirements that eligibility for coverage be dependent upon physician collaboration or supervision.[civ]

• eliminate narrowly circumscribing direct reimbursement to APNs.

• eliminate discrimination between and among different specialty categories of APNs for payment.

• accommodate the current trend toward “bundling” health services with provisions for payment for hospital- or institution-based APN services.

• require that the same service should result in the same payment by insurers, regardless of the specialty of the provider.

• increase funding for APN education to institutions of higher education.[cv]

With regard to the same payment for same service recommendation, APNs have been shown to deliver equivalent, and sometimes better care than that of physicians in those activities that fall within both providers’ scopes of practice. The current practice of reimbursement of APNs at a percentage of physician payment artificially elevates the status of physician providers and at the same time devalues the substantive concern for quality of outcome or health status.

• A final recommendation is for the federal government to use its influence to encourage the states to immediately remove, through regulation, existing barriers to effective utilization of APNs. Barrier removal by federal action serves as an important symbol or model for the states.

State Level[cvi]

 

The following actions to redefine APNs’ role and their scope of practice will clarify their authority to diagnose and treat, and will eliminate problems with prescribing. All state legislatures should:

• eliminate all reference to mixed-regulator entities, and vest sole governmental authority over advanced practice nursing in the BON. This action is consistent with licensure mechanisms governing other professions.

• amend Nurse Practice Acts to include both a specific acknowledgment of advanced practice nursing and a basic definition of APNs.[cvii] To avoid confusion, reference to specific categories of APNs should seldom be made. Mention of specific titles for an intended role by state, federal, and private insurance reimbursement provisions causes problems when those titles vary across the states.

• modify statutory definitions of the practice of registered or professional nursing to include those acts of APNs authorized under regulations adopted by the BON, and further specify that the BON is empowered to promulgate such regulations for APNs. This action would preclude challenges to BON authority by eliminating vaguely worded statutory provisions concerning the BON’s authority to adopt such rules.

• eliminate any statutory requirements for formalized APN/physician collaboration or practice agreements, as well as for physician supervision or direction of APNs.[cviii] APNs routinely collaborate with other providers, consistent with their professional ethics and judgment.

• statutorily acknowledge that APNs may prescribe drugs contained in schedules II through V of the Controlled Substances Act, or leave such specification to their BONs.

• enact nondiscrimination requirements for health insurance or health-care service plans or contracts so that covered services may be provided by qualified APNs acting within their legally authorized scope of practice. These nondiscrimination requirements should extend to payment methodology, so that direct reimbursement, if available to one provider, will be available to APNs as well at the same rate.

• extend their Medicaid regulations to reimburse APNs’ services.

• enact nondiscrimination requirements for hospitals to grant clinical and admitting privileges to APNs.

Conclusion

Access to basic health services for all Americans has proven to be an elusive goal. A fundamental principle of health-care reform is the effective utilization of qualified, competent providers. As the President’s Task Force on National Health Care Reform has discovered, advanced practice nurses have a proven ability to offer quality, cost-effective primary care, yet various state and federal statutory constraints frustrate their potential to practice. APNs must be free, accountable, and unencumbered by constraints that counteract consumer interests. APNs must be granted full legal, prescriptive, and reimbursement authority through immediate state and federal regulatory reform to facilitate their effective deployment to increase access to health care while preserving quality, reducing costs, and bettering this nation’s health.


[i] A system connotes an organized, coordinated, considered structure, which is far from accurate in describing the US health-care system.

[ii] Simon Francis, “Health and Medical Services,” in United States Department of Commerce, US Industrial Outlook 1993 (Washington, DC: United States Government Printing Office, 1993), Chapter 42, 1-6; gross national product is the total value of goods and services produced in a nation during a specific time period (e.g., a year), plus the total expenditures by consumers and government, plus gross private investment.

[iii] Pamela F. Short, Alan C. Monheit, and Karen Beauregard, National Medical Expenditure Survey: A Profile of Uninsured Americans: Research Findings 1 (Rockville, Md: National Center for Health Services Research and Health Care Technology Assessment, 1989); Emily Friedman, “The Uninsured: From Dilemma to Crisis,” JAMA, 265 (May 1991): 2491-95.

[iv] U.S. Bureau of the Census, 1990 Census of Population and Housing: United States (Washington, DC, U.S. Government Printing Office, 1992); this percentage was derived from a 1990 census population total of 248,709,873.

[v] Antoinette D. Inglis, “United States Maternal and Child Health Services Part II: A Comparison with Western Europe and Strategies for Change,” Neonatal Network: The Journal of Neonatal Nursing, 10 (Aug. 1991): 7-13; infant mortality rate is the annual number of deaths of infants under one year of age per 1,000 live births and expresses the probability of dying between birth and exactly one year of age.

[vi] 454 grams equals one pound.

[vii] Personal communication of Kathleen Hastings, nurse attorney and Task Force member from the Agency for Health Care Policy and Research, July 2, 1993.

[viii] Antoinette D. Inglis, “United States Maternal and Child Health Services Part I: Right or Privilege?” Neonatal Network: The Journal of Neonatal Nursing, 9 (June 1991): 35-43.

[ix] Len M. Nichols, “Estimating the Cost of Underusing Advanced Practice Nurses,” Nursing Economics, 10 (Sep.-Oct. 1992): 343-51.

[x] Paul G. Barnett and John E. Midtling, “Public Policy and the Supply of Primary Care Physicians,” JAMA , 262 (Nov. 1989): 2864-68.

[xi] Id., at 2867.

[xii] H. Jack Geiger, “Why Don’t Medical Students Choose Primary Care?” American Journal of Public Health, 83 (Mar. 1993): 315-16.

[xiii] See supra note 10, at 2864-65.

[xiv] This percentage is calculated from figures from Carlos J. M. Martini, “Graduate Medical Education in the Changing Environment of Medicine,” JAMA, 268 (Sept. 1992): 1097-1105; of 85,516 1991 first-year residents, 6,610 chose family practice, approximately eight percent. Only family practice residents are counted, as family practice is the only primary-care specialty which does not offer a pathway to subspecialization.

[xv] Linda J. Pearson, “1991-92 Update: How Each State Stands on Legislative Issues Affecting Advanced Nursing Practice,” The Nurse Practitioner: The American Journal of Primary Health Care, 17 (Jan. 1992): 14-23.

[xvi] Two additional barriers are significant and interact: malpractice insurance and admitting privileges. In relation to income, the cost of malpractice insurance for NPs and CNMs is quite costly. Similarly, a lack of malpractice insurance, or the limitations in available policies on total coverage amounts, often prevents these providers from obtaining hospital admitting privileges. These two barriers have a market-based character, and thus are not included in this discussion of regulation.

[xvii] For an exhaustive discussion on regulating the integration of advanced practice nurses into the health-care delivery system, see Barbara J. Safriet, “Health Care Dollars and Regulatory Sense: The Role of Advanced Practice Nursing,” Yale Journal on Regulation, 9 (summer, 1992): 417-487. Ms. Safriet is Associate Dean and Lecturer of Law at the Yale Law School.

[xviii] Access problems result in widespread usage of hospital emergency rooms (ERs) for primary care. Emergency rooms at any given moment may be filled with persons, especially children, seeking attention for common acute ailments such as rashes, fevers, sore throats, earaches, urinary and respiratory tract infections. Persons using ERs for primary care may have no health insurance, may have Medicaid but no provider willing to see them, or may have providers but no services outside of office hours.

[xix] This definition is adapted from two sources: a) Safriet, supra note 17, at 422, and b) U.S. House of Representatives Subcommittee on Health and the Environment of the Committee on Interstate and Foreign Commerce, A Discursive Dictionary of Health Care (Washington, DC: U.S. Government Printing Office, 1976).

[xx] Diane K. Kjervik, “Psychiatric-Mental Health Nurse’s Duty to Warn Potential Victims of Homicidal Psychotherapy Outpatients”, Law, Medicine, and Health Care, 9 (Dec., 1981): 11-16 and 39.

[xxi] United States Congress, Office of Technology Assessment, HCS 37, Nurse Practitioners, Physician Assistants, and Certified Nurse-Midwives: A Policy Analysis (1986) [hereinafter OTA Study].

[xxii] United States Congress, Office of Technology Assessment, OTA-H-434, Health Care in Rural America 257, 259 (1990).

[xxiii] The word “crisis” is used here with some reservation, as the term connotes a sudden change, yet the severe problems with our health-care “system” have been documented since the 1920s; see Steven Jonas, An Introduction to the US Health Care System (3rd Ed.) (New York: Springer, 1992), and Larry W. Koch, S.H. Pazaki, and James D. Campbell, “The First 20 Years of Nurse Practitioner Literature: An Evolution of Joint Practice Issues,” The Nurse Practitioner: The American Journal of Primary Health Care, 17 (Feb. 1992): 62-71.

[xxiv] Louis W. Sullivan, (From the Secretary of Health and Human Services), “The Need for Medical Treatment Effectiveness Research”, JAMA, 266 (Dec. 1991): 3264.

[xxv] See OTA Study, supra note 21.

[xxvi] See Jay Katz, The Silent World of Doctor and Patient (New York: MacMillan, 1984) for a discussion of physician unwillingness to include patients in the decision-making process.

[xxvii] Institute of Medicine, Sarah S. Brown, ed. Prenatal Care: Reaching Mothers, Reaching Infants (Washington, DC: National Academy Press, 1988): 68.

[xxviii] Use of the term “midlevel practitioner” implies a hierarchy of providers. In providing primary care within their scope of practice, APNs are not providing a middle level of care. Use of this term is unacceptable and discriminatory as it fosters, inappropriately, the granting of physicians greater status and economic rewards. Further, nurse practitioners lose their professional identity when referred to as “non-physician providers” or “midlevel practitioners”. Such nomenclature can be likened to calling an orange a “non-apple” or “midlevel fruit”.

[xxix] See supra note 27, at 144.

[xxx] See Safriet, supra note 17, at 431.

[xxxi] Nancy R. Barhydt-Wezenaar, “Nursing,” in Steven Jonas, ed., Health Care Delivery in the United States, 3rd Ed. (New York: Springer, 1986), 90-124.

[xxxii] Id., at 91.

[xxxiii] See Barbara Ehrenreich and Deirdre English, Witches, Midwives, and Nurses: A History of Women Healers (2nd. Ed.) (Old Westbury, NY: The Feminist Press, 1973).

[xxxiv] See Rosemary Stevens, American Medicine and the Public Interest (New Haven, Yale University Press, 1971).

[xxxv] Paul E. Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982).

[xxxvi] Eliot Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York: Dodd, Mead, 1970).

[xxxvii] See Barhydt-Wezenaar, supra note 31, at 91.

[xxxviii] Morris Schaefer and Herman E. Hilleboe, “The Health Manpower Crisis: Cause or Symptom,” American Journal of Public Health, 57 (1967): 10.

[xxxix] Loretta C. Ford and Henry K. Silver, “The Expanded Role of the Nurse in Child Care,” Nursing Outlook, 15 (Sep. 1967): 43-45.

[xl] See Koch et al., supra note 23.

[xli] Id., at 64.

[xlii] See Koch et al., supra note 23, at 68.

[xliii] Id., at 68.

[xliv] Eliot Freidson, ed., The Professions and Their Prospects (Beverly Hills, CA: Sage, 1973).

[xlv] See supra note 23, at 68.

[xlvi] Marguerite J. Schaefer, “The Political and Economic Scene in the Future of Nursing,” American Journal of Public Health, 63 (Oct. 1973): 887-89.

[xlvii] See Koch et al., supra note 23, at 68.

[xlviii] Mary Breckinridge, “The Nurse-Midwife: A Pioneer,” American Journal of Public Health, 17 (1927): 1147.

[xlix] See Ford and Silver, supra note 39, at 43.

[l] See Safriet, supra note 17, at 461.

[li] Arguments opposing licensure of health-care providers have maintained that such restrictive regulation does not necessarily protect the public. See Milton Friedman, Capitalism and Freedom (Chicago: Phoenix Books, 1962). In chapter 9, entitled “Occupational Licensure”, economist Friedman argues that the market, i.e., the “customers”, can more appropriately determine which providers can best meet their needs, not government-regulated licensure.

[lii] See Freidson, supra note 36, at 47.

[liii] Like medicine, besides defining its practice, nursing also specified the training/educational qualifications necessary for licensure, and prohibited the practice of nursing without a license.

[liv] Brenda H. Canedy, “Florence Nightingale: Woman with a Vision,” in Diane K. Kjervik and Ida M. Martinson, eds., Women in Stress: A Nursing Perspective (New York: Appleton-Century-Croft, 1979), 5-30.

[lv] “ANA Board Approves a Definition of Nursing Practice,” American Journal of Nursing, 55 (Dec. 1955): 1474.

[lvi] See Safriet, supra note 17, at 443.

[lvii] See Safriet, Id., at 444.

[lviii] U.S. Department of Health, Education, and Welfare, Extending the Scope of Nursing Practice: A Report of the Secretary’s Committee to Study Extended Roles for Nurses (Washington, DC: U.S. Government Printing Office, 1971).

[lix] Linda J. Pearson, “1992-93 Update: How Each State Stands on Legislative Issues Affecting Advanced Nursing Practice,” The Nurse Practitioner: The American Journal of Primary Health Care, 18 (Jan. 1993): 23-38.

[lx] Id., at 25.

[lxi] Id., at 25.

[lxii] A “legend drug” is one which can only be dispensed upon prescription and which is not classified as a narcotic or a controlled substance. Examples include anti-hypertensive medications, antibiotics, and nonsteroidal anti-inflammatory drugs.

[lxiii] See Safriet, supra note 17, at 457.

[lxiv] See Pearson, supra note 59, at 24; see Safriet, supra note 17, at 456.

[lxv] See Safriet, supra note 17, at 456-7.

[lxvi] See Pearson, supra note 15, at 16.

[lxvii] See Safriet, supra note 17, at 457.

[lxviii] Protocols, in this sense, set forth various steps to be followed in the assessment or diagnosis of a condition, and, depending upon the results for each step of the aggregate process, specifies what treatments or drug therapies are to be implemented. (From Safriet, Id., at 458).

[lxix] A formulary is a list of drugs and therapeutic agents.

[lxx] See Safriet, supra note 17, at 456.

[lxxi] Id., at 458-9.

[lxxii] Medicare, created in 1965, includes two insurance programs. Part A is hospital insurance and is available without additional charge to all eligible Social Security recipients. Part B covers a wide range of services outside the hospital, including primary and ambulatory care.

[lxxiii] Medicaid is a collaborative effort between state and federal governments designed to provide payment for medical services to certain low-income persons.

[lxxiv] Safriet, supra note 17 at 466, points out that the “follow-the-Medicare-leader” phenomenon affects the availability of reimbursement insofar as both private insurers and state insurance regulators tend to pattern their provisions on federal Medicare arrangements.

[lxxv] For a discussion of the technical methodology used in establishing the scale, see William C. Hsiao, Peter Braun, Daniel Dunn, and Edmund R. Becker, “Resource-Based Relative Values: An Overview,” JAMA, 260 (Oct. 1988): 2347-53. The important concept is that a more logical payment system can be designed which accurately reflects inputs to health services.

[lxxvi] The Hsiao study considered the compelling notion of paying a differential based on patient outcome, but concluded that methods had not been developed of measuring that dimension satisfactorily.

[lxxvii] Physician Payment Review Commission, 1989 Annual Report to Congress, at xviii (1989).

[lxxviii] Federal law defines “maternity cycle” as pregnancy, labor, birth, and the immediate postpartum period.

[lxxix] “Collaboration” is explicitly defined as a situation in which an NP “works with a physician…with medical direction and appropriate supervision…”, 42 U.S.C.A. § 1395x(aa)(6) (1992).

[lxxx] Physician Payment Review Commission, 1991 Annual Report to Congress at xx (1991).

[lxxxi] See Pearson, supra note 59, at 25.

[lxxxii] See Safriet, supra note 17, at 467.

[lxxxiii] For example, in 1992, even though the national executive and legislative branches were undisputedly in gridlock, legislation affecting the cable industry passed, partially because cable television rates are a common household concern.

[lxxxiv] See Louise B. Russell, Is Prevention Better Than Cure? (Washington, DC: Brookings Institution, 1986).

[lxxxv] Alvin R. Tarlov, John E. Ware, Sheldon Greenfield, Eugene C. Nelson, Edward Perrin, Michael Zubkoff, “The Medical Outcomes Study: An Application of Methods for Monitoring the Results of Medical Care,” JAMA, 262 (Aug. 1989): 925-30.

[lxxxvi] Roger A. Rosenblatt, “Specialists or Generalists: On Whom Should We Base the American Health Care System?” JAMA, 267 (Mar. 1992): 1665-66.

[lxxxvii] The inability to cure measles in this country may be the quintessence of a failing health-care system.

[lxxxviii] Texas Department of Health Disease Prevention (internal document),Vaccine Access Initiative and Immunization Services, (January 15, 1993).

[lxxxix] Id.

[xc] Id.

[xci] See supra note 23.

[xcii] A Discursive Dictionary of Health Care, supra note 19(b) at 23 defines capitation as “a method of payment for health services in which an individual or institutional provider is paid a fixed, per capita amount for each person served without regard to the actual number or nature of services provided to each person.”

[xciii] Cynthia E. Northrop and Mary E. Kelly, Legal Issues in Nursing (St. Louis: C.V. Mosby, 1987).

[xciv] Alain C. Enthoven and Richard Kronick, “Universal Health Insurance Through Incentives Reform,” JAMA, 265 (May 1991): 2532-36.

[xcv] Press release, April 29, 1993, Federal Election Commission; Center for Responsive Politics, “PACs in Profile: Spending Patterns in the 1992 Election,” June, 1993.

[xcvi] See Pearson, supra note 59, at 25.

[xcvii] See Pearson, at supra note 15, at 14.

[xcviii] See supra note 28.

[xcix] See Pearson, supra note 59, at 23.

[c] Id., at 24-25.

[ci] Pamela C. Mittelstadt, “Federal Reimbursement of Advanced Practice Nurses’ Services Empowers the Profession,” The Nurse Practitioner: The American Journal of Primary Health Care, 18 (Jan. 1993): 43-49.

[cii] See Id., at 25; see also Pearson, supra note 15 at 16.

[ciii] For a more detailed discussion of recommended federal action see Safriet, supra note 17, at 478-486.

[civ] Is it appropriate for physicians to be acting as financial intermediaries for APNs? No.

[cv] Graduate medical education enjoys a long tradition of federal funding.

[cvi] For a more detailed discussion of recommended state action see Safriet, supra note 17, at 478-486.

[cvii] Safriet discusses and gives a recommended definition of APN in her (cited) work at pages 479-80.

[cviii] See supra note 104.

Toni Inglis, MSN, RN CNS (retired), FAAN, a lifelong Austin resident and retired neonatal intensive care nurse and editor of NursingNews, writes a monthly opinion column for the Austin American-Statesman editorial page.