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

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

Francis Simon , “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.

Short Pamela F. Monheit Alan C. and Beauregard Karen , 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); Friedman Emily , “The Uninsured: From Dilemma to Crisis,” JAMA, 265 (May 1991): 2491–95.

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.

Inglis Antoinette D. , “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.

454 grams equals one pound.

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

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

This study was done by an economist at Wellesley College. See Nichols Len M. , “Estimating the Cost of Underusing Advanced Practice Nurses,” Nursing Economics, 10 (Sep.–Oct. 1992): 343–51. See also “Nurses' Lib,” The Wall Street Journal, A8 (August 13, 1993).

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

Id., at 2867.

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

See supra note 10, at 2864–65.

This percentage is calculated from figures from Carlos Martini J. M. , “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.

Pearson Linda J. , “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.

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.

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.

Access problems result in widespread usage of hospital emergency rooms (ERs) for primary care. Emergency rooms may be filled with persons, especially children, seeking attention for common acute ailments such as rashes, fevers, sore throats, earaches and 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.

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).

Kjervik Diane K. , “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.

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

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

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 Koch Larry W. Pazaki S.H. and Campbell James D. , “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.

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

See OTA Study, supra note 21.

See Katz Jay , 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.

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

See supra note 27, at 144. Use of the term “midlevel practitioner” implies a hierarchy of providers. In providing primary care within thier 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.”

See Safriet , supra note 17, at 431.

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

Id., at 91.

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

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

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

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

See Barhydt-Wezenaar , supra note 31, at 91.

See The Wall Street Journal, supra note 9, at A8.

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

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

See Koch , supra note 23.

Id., at 64.

See Koch , supra note 23, at 68.

Id., at 68.

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

See supra note 23, at 68.

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

See Koch , supra note 23, at 68.

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

See Ford and Silver , supra note 39, at 43.

See Safriet , supra note 17, at 461.

Arguments opposing licensure of health care providers have maintained that such restrictive regulation does not necessarily protect the public. See Friedman Milton , 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.

See Freidson , supra note 36, at 47.

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.

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

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

See Safriet , supra note 17, at 443.

See Safriet , id., at 444.

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).

Pearson Linda J. , “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.

Id., at 25.

Id., at 25.

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 antibiotics and nonsteroidal anti-inflammatory drugs.

See Safriet , supra note 17, at 457.

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

See Safriet , supra note 17, at 456–7.

See Pearson, supra note 15, at 16.

See Safriet , supra note 17, at 457.

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, specify what treatments or drug therapies are to be implemented. (From Safriet, Id., at 458).

A formulary is a list of drugs and therapeutic agents.

See Safriet , supra note 17, at 456.

Id., at 458–9.

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.

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

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.

For a discussion of the technical methodology used in establishing the scale, see Hsiao William C. Braun Peter Dunn Daniel and Becker Edmund R. , “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.

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.

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

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

“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).

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

See Pearson , supra note 59, at 25.

See Safriet , supra note 17, at 467.

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.

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

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

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

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

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

Id.

Id.

See supra note 23.

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.”

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

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

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

See Pearson , supra note 59, at 25.

See Pearson , supra note 15, at 14.

See discussion, supra note 28.

See Pearson , supra note 59, at 23.

Id., at 24–25.

Mittelstadt Pamela C. , “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.

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

For a more detailed discussion of recommended federal action see Safriet , supra note 17, at 478–486.

Is it appropriate that physicians act as financial intermediaries for APNs? No.

Graduate medical education enjoys a long tradition of federal funding.

For a more detailed discussion of recommended state action see Safriet , supra note 17, at 478–486.

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

See supra note 104.