FTC increasing antitrust examination of state scope of practice limitations
AMA and CMS address trend of FTC engagement on scope of practice
The Federal Trade Commission (FTC) is increasing its antitrust examination of state professional board actions, legislation and regulation relating to scope-of-practice limitations.
The FTC’s activity has taken the form of an enforcement action against the North Carolina State Board of Dental Examiners antitrust enforcement action against a state licensing board for attempting to fulfill its statutory mandate to regulate public health and safety. The case is currently on appeal in the U.S. Court of Appeals for the Fourth Circuit.
This action has also taken the form of letters to a state medical board and state legislators, commenting on bills to regulate providers of interventional pain management procedures and bills and proposed regulations to expand nursing scope of practice. In these letters the FTC relies on “available evidence” to make clinical judgments on complex medical issues that have an impact on patient health and safety. For example, in letters to Missouri and Tennessee legislators, the FTC stated that nurse anesthetists could safely provide chronic interventional pain management services without physician supervision. The FTC has similarly weighed in on APRN supervisory arrangements stating that, “available empirical evidence indicates that APRN-delivered care ‘across settings, is at least equivalent to that of physician-delivered care as regards safety and quality.’”
The AMA is greatly concerned that the FTC appears comfortable making clinical judgments on such complex issues as the relative qualifications of health care professionals in the provision of chronic interventional pain management. The FTC concerns itself with competition matters; the AMA believes that the FTC does not have the clinical expertise to make judgments regarding the competency of providers to perform medical procedures, as is suggested by the FTC’s advocacy letters. These judgments must continue to be made by state medical boards and legislatures with the strong input of the physician community. The FTC’s actions must not prevent state legislatures, regulators and boards of medicine from initiating legislation, regulation or other actions to protect the public for fear of potential antitrust liability.
What the AMA is doing for you
The AMA is working to address this concerning trend of FTC engagement. Due to the significance of this challenge to the medical profession’s oversight of licensure, the practice of medicine and patient safety, as well as the consequences for states and other professional licensing bodies, the AMA has engaged a multi-pronged strategy to defend the work of the medical boards and the states. The AMA has held a series of meetings with FTC commissioners and senior staff, urging them to reexamine the FTC’s ability to advocate on the complex medical issues involved in state scope of practice activities and medical licensure. This is the first time AMA leadership has met with the full range of commissioners. In these meetings, incoming AMA Board Chair Stephen Stack, MD, has emphasized the AMA’s position that the FTC does not have the clinical expertise to make judgments regarding the competency of providers to perform medical procedures, as is suggested by the FTC’s letters. The AMA will also engage in the courts through an amicus brief in the North Carolina dental board case.
The AMA has enjoyed the strong support of the Colorado Medical Society for this advocacy work. In a recent letter to FTC Chairman Jon Leibowitz, CMS President F. Brent Keeler, MD, acknowledged CMS’ agreement with the AMA regarding the fundamental role of state medical boards and legislatures in issues relating to scope of practice and medical licensure.
Since the meetings began, three FTC letters have been released. Misleading clinical judgment has been removed, and disclaimers have been added stating, “FTC staff are not experts in patient care or safety,” and do not offer advice on such matters. Moreover, the FTC acknowledged that “certain professional licensure requirements are necessary to protect patients” and “in particular, special practice requirements may be recommended or required for certain chronic or acute pain indications or treatments that may present heightened consumer risks.” The FTC has also agreed to reach out to medical associations before drafting its letters in the future. The FTC has recognized this transition, acknowledging in a letter to CMS that meetings with the AMA led to changes in the language and tone of subsequent FTC advocacy letters.
Antitrust relief is a priority for physicians. Together with our state medical associations and national medical specialty societies, the AMA has reasserted the need for state medical boards to be the authorities on licensure, patient safety and the practice of medicine; physicians, not economists, must regulate the profession. The AMA will continue advocating to ensure that regulation of physicians remains squarely within the purview of the states and state medical boards.
For more information on the AMA’s engagement with the Federal Trade Commission, including a link to the AMA’s white paper on the Application of the State Action Antitrust Exemption to Actions of State Medical Boards, please visit www.ama-assn.org/go/ftc-state.
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