FTC Gives Mixed Review of South Carolina’s Nurse Supervision Proposal

The Federal Trade Commission (FTC or Commission) submitted written comments on November 2nd to South Carolina’s state legislature on the competitive impact of proposals to modify the supervision requirements for advanced practice registered nurses (APRNs) in the state. While the FTC approved of a state bill that would allow APRNs to practice under the supervision of a licensed physician without evidence of “written protocols,” the Commission cautioned the legislature to re-think a proposal to require regulatory approval of a “written practice agreement” between the APRN and a supervising physician. Several states currently require similar protocols or agreements, possibly limiting the use of APRN services each location.

H.3078: Elimination of Approved Written Protocols

South Carolina House Bill 3078 (H.3078) proposes changes that would eliminate requirements that each nurse practitioner, certified nurse midwife, and clinical nurse specialist practicing in the state provide evidence of “approved written protocols” to practice under the supervision of a licensed physician. But what one House Bill giveth, another taketh away. Or, as the FTC stated, “We urge legislators to consider the potential benefits of enhanced competition that H.3078 may facilitate and H.3508 may impede.”

H.3508: Introduction of Written Practice Agreements

House Bill 3508 would replace the “approved written protocols” with equivalent requirements for a “written practice agreement” between APRNs and a supervising physician. The key difference between the proposed agreement and the current regulations is that the new practice agreement must be submitted to, and approved by, a regulatory committee prior to practice under the agreement. The current regulations require only that the protocol be produced within 72 hours of request. Furthermore, H.3508 would require notice to the committee and approval of a new agreement any time the APRN changes practice settings or supervising physicians, and to cease practice if the written agreement is terminated for any reason.

The FTC’s Review: Problems Ahead

The FTC notes four potential issues with the state’s proposal. First, H.3508 may limit access to APRNs, who can help cover the national shortage of primary care physicians. Second, APRNs can offer lower-cost care than physicians, but undue regulatory and legal hurdles may raise the cost of APRN services. Third, “rigid supervision” and collaboration requirements may impede development of effective models of team-based care. As an example, legislative language may unnecessarily limit the scope of services than an APRN can provide. Fourth, the Commission found no evidence that statutory practice agreement requirements are necessary to achieve the benefits of team-based care.

The Commission noted that the state legislature must balance these competition concerns with valid health and safety concerns reflected in regulatory oversight of health care professionals. However, the FTC pushed for adoption of H.3078 to remove restrictions on nurses and a reconsideration of H.3508 to reexamine whether such regulations are necessary to protect patient health and safety. If the state follows the FTC’s recommendation, APRNs should experience fewer regulatory restrictions in South Carolina, perhaps demonstrating a template for regulatory oversight to states that currently require protocols or agreements for APRN practices.

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