FTC Staff Testimony Before Subcommittee of the WV Legislature on Laws Governing the Scope of Practice for Advanced Practice Registered Nurses and Possible Revisions to Remove Practice Restrictions

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PREPARED STATEMENT OF
THE FEDERAL TRADE COMMISSION STAFF
Before
Subcommittee A of the Joint Committee on Health
Of the
State of West Virginia Legislature
On
The Review of West Virginia Laws Governing the Scope of Practice for Advanced Practice
Registered Nurses and Consideration of Possible Revisions to Remove Practice Restrictions
September 10-12, 2012

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I. INTRODUCTION
The staffs of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Competition, and Bureau of Economics1 appreciate the opportunity to respond to Senator Daniel
Foster’s invitation for testimony on West Virginia’s laws governing Advanced Practice
Registered Nurses’ (“APRNs’”) 2 scope of practice, as well as for recommendations the FTC
staff deem “appropriate to protect the public while simultaneously allowing for an efficient and
procompetitive market.” 3 Senator Foster specifically noted that West Virginia law allows
APRNs to diagnose and treat patients without physician involvement, but requires APRNs to
have a signed collaboration agreement with a physician in order to prescribe medications.
Senator Foster’s invitation highlights West Virginia Senate Concurrent Resolution No.
93, which recommends a study of “the scope of practice of advanced practice nurses and the
need for its expansion to improve the quality of health care, increase patient access and to allow
patients free choice of their health care providers.”4 Senator Foster states that the review of
current law is in part responsive to the Institute of Medicine’s (“IOM”) request that state
legislatures review and reform, if necessary, scope of practice regulations on APRNs.5 He
further indicated that this review is an opportunity for the West Virginia legislature to fulfill its
duty to provide West Virginians “with a healthcare marketplace that is safe, open, and robust.”6
As Concurrent Resolution No. 93 recognizes, recent reports by the IOM have identified a
key role for advanced practice nurses in improving the delivery of health care.7 The IOM,
established in 1970 as the health arm of the National Academy of Sciences, provides expert
advice to policy makers and the public and has conducted an intensive examination of issues
surrounding advanced nursing practice. Among other things, the IOM found that advanced
practice nurses can help improve access to health care and “[r]estrictions on scope of practice. . .
have undermined [nurses’] ability to provide and improve both general and advanced care.”8
West Virginians are particularly vulnerable to access issues caused by physician
shortages. West Virginia currently suffers from shortages of primary care providers, and these
shortages are expected to worsen as more West Virginians gain health insurance and seek access
to primary health care services.9 Legislative action to eliminate the collaborative agreement
requirement for prescriptive authority may improve access and consumer choice for primary care
services, especially for rural and other underserved populations, and also may encourage
beneficial price competition that could help contain health care costs.
Given the potential benefits of eliminating unwarranted impediments to APRN practice,
we applaud the West Virginia legislature’s efforts to review and study the statutory limits on
APRNs, and we recommend that the legislature ensure that such limits are no stricter than patient
protection requires. We encourage the legislature to carefully consider available safety evidence
on APRN practice in West Virginia and elsewhere. Absent a finding that there are
countervailing patient care and safety concerns regarding APRN practice, suggestions to remove

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the collaborative agreement for prescriptive authority appear to be a procompetitive
improvement in the law that likely would benefit West Virginia health care consumers.
II. INTEREST AND EXPERIENCE OF THE FTC
The FTC is charged under the FTC Act with preventing unfair methods of competition
and unfair or deceptive acts or practices in or affecting commerce.10 Competition is at the core
of America's economy,11 and vigorous competition among sellers in an open marketplace gives
consumers the benefits of lower prices, higher quality products and services, more choices, and
greater innovation. Because of the importance of health care competition to the economy and
consumer welfare, anticompetitive conduct in health care markets has long been a key target of
FTC law enforcement,12 research,13 and advocacy.14 Recently, FTC staff have analyzed the
likely competitive effects of proposed APRN regulations in other states.15
III. BACKGROUND: APRN PRACTICE IN WEST VIRGINIA
APRNs are licensed by the West Virginia Board of Examiners for Registered
Professional Nursing and subject to the Board’s regulations.16 West Virginia law states:
The practice of “advanced practice registered nurse” is a registered nurse who
has acquired advanced clinical knowledge and skills preparing him or her to
provide direct and indirect care to patients, who has completed a board-
approved graduate-level education program and who has passed a board-
approved national certification examination. An advanced practice registered
nurse shall meet all the requirements set forth by the board by rule for an
advance practice registered nurse which shall include, at a minimum, a valid
license to practice as a certified registered nurse anesthetist, a certified nurse
midwife, a clinical nurse specialist or a certified nurse practitioner.17
APRNs were first recognized by the West Virginia Legislative Rules beginning in
1991.18 In 1993, the requirements for prescriptive authority were set forth in the West Virginia
Code and Legislative Rules, including the requirement that prescribing APRNs have a signed
collaboration agreement with a West Virginia physician.19 Although collaborative agreements
could, in theory, encompass varying arrangements, the IOM Report observes that West Virginia
law imposes no requirements for on-site supervision of APRNs, the frequency or extent to which
physicians must review the charts of APRN patients, or the maximum number of APRNs with
whom a physician may have collaborative arrangements.20
IV. LIKELY COMPETITIVE BENEFITS OF EXPANDING APRN PRESCRIPTIVE
AUTHORITY
FTC staff recognize that certain professional licensure requirements are necessary to
protect patients. Consistent with patient safety, however, we urge legislators to also consider the
potential benefits of competition, including improved access to care, lower costs, and increased
options, that removal of restrictions on APRN practice would likely create.

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a. Removing Restrictions Is Likely to Improve Access to Primary Care Services
The United States faces substantial and growing shortages of physicians.21 While these
shortages will exacerbate health care access problems for many American consumers, the impact
of reduced access is likely to be most acute among Medicaid beneficiaries, due to fewer
physician practices located in low-income communities, as well as low physician participation in
state Medicaid programs.22
The West Virginia legislature recognized access problems in Resolution No. 93: “The
health care model in place, despite its established history, has not been successful in providing
care to all patients in West Virginia, including the uninsured.” 23 In fact, 44 of 55 West Virginia
counties contain federally-designated Health Professional Shortage Areas (“HPSAs”).24
Moreover, federal health care reform will greatly expand the number of people with insurance in
West Virginia, likely increasing the demand for primary care services and potentially
exacerbating the imbalance between demand for and supply of primary care physicians.
Beginning in 2014, as many as 178,300 West Virginians will be eligible for tax credits to
purchase private health insurance policies and an additional 122,000 low-income West
Virginians may become eligible for Medicaid.25
APRNs are seen by many as crucial to addressing access problems. As a general matter,
APRNs make up a greater share of the primary care workforce in less densely populated, less
urban, and lower income areas, as well as in federally-designated HPSAs. APRNs also are more
likely than primary care physicians to care for large numbers of minority patients, Medicaid
beneficiaries, and uninsured patients.26 It is also important to note that APRNs are the fastest-
growing segment of the primary care professional workforce in the United States. Between the
mid-1990s and the mid-2000s, the number of APRNs per capita grew an average of more than
nine percent annually, compared with just one percent for primary care physicians.27 Given that
APRNs play a key role in filling the gap between demand and supply for health care services,
any unnecessary restrictions on APRNs are likely to exacerbate access problems and thereby
harm some of the most vulnerable patients.28
There are currently 1,454 APRNs licensed in West Virginia, of which approximately
1,000 are primary care nurse practitioners. APRNs live in 49 of West Virginia’s 55 counties and
practice in 54 of the state’s 55 counties, which suggests that greater utilization of West Virginia’s
APRNs could improve access to care.29 Moreover, some reports suggest more APRNs practice
in states that allow independent practice (i.e., practice without immediate supervision or
collaborative agreement requirements).30 As the West Virginia legislature noted, “[a]dvanced
practice nursing scope of practice is increasingly expanding in other states, including the border
state of Maryland, thus decreasing the likelihood of keeping the best advanced practice nurses in
West Virginia.” 31 Thus, if West Virginia were to eliminate the requirement for a collaborative
agreement for prescriptive authority, it might prevent the loss of APRNs to less restrictive states
and might benefit from growth in the number of APRNs choosing to practice there.

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In sum, unnecessary restrictions on APRNs may result in decreased access to health care
services, with potentially harmful consequences for West Virginia patients.
b. Removing Restrictions Would Likely Lower Costs and Increase Consumer
Options
Removing the requirement that APRNs have a collaborative agreement with a physician
in order to prescribe medications is likely to reduce the cost of basic health care services and
could spur innovation in health care delivery and widen the range of choices available to
consumers. APRN care is generally less expensive to patients and payers than physician care,
and is often provided in a variety of health care delivery settings.32 Similar to the situation in
other states, there is anecdotal evidence suggesting some West Virginia APRNs who wish to set
up a practice that is separate from a physician or other health care entity (e.g., they are not
employees) must pay physicians to enter a collaborative agreement for prescriptive authority.33
Unless these arrangements involve true and beneficial supervision,34 they raise the possibility
that APRNs are not compensating physicians for their time, but rather for the potential loss of
income some physicians believe may occur as a result of APRNs’ entry into the primary care
marketplace. Such payments raise the costs of practice, likely resulting in fewer independently
practicing APRNs and higher prices (without any improvement in the quality of care provided).
It is also our understanding that some APRNs who are attempting to establish an
independent practice find it difficult to identify a physician willing to enter into a collaborative
prescribing agreement at all.35 Other APRNs find it difficult to develop a sustainable business
because collaborating physicians can revoke collaborative agreements at any time for any reason,
which compromises APRNs’ ability to treat their patients.36 For example, if an APRN’s
collaboration agreement for prescriptive authority with a physician ends, the APRN could
continue to see patients, but could not continue to prescribe needed medications, compromising
their ability to meet the needs of their patients.
APRNs have also played an important role in the development of alternative settings for
care delivery, such as retail clinics. Retail clinics typically are located within larger retail stores,
staffed by APRNs, and offer consumers a convenient way to obtain basic medical care at
competitive prices.37 Retail clinics generally offer weekend and evening hours, which provide
greater flexibility for patients,38 and appear to provide competitive incentives for other types of
physician practices to offer extended hours as well.39 If the West Virginia legislature decides to
relax restrictions on APRNs’ ability to prescribe medications, such action might increase both
the number and types of care settings available to West Virginia consumers.40
c. Legislative Consideration of Health and Safety Issues
As previously noted, certain professional licensure requirements are necessary to protect
patients. It is unclear, however, whether the current West Virginia collaboration requirement
provides any additional patient protection.41 Moreover, the IOM, based on an extensive review

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of the studies and literature on the safety of APRNs as primary care providers, has recommended
that nurses be permitted by state licensing laws to practice to the full extent of their education
and training.42 The IOM noted some “states have kept pace with the evolution of the health care
system by changing their scope-of-practice regulations to allow NPs to see patients and prescribe
medications without a physician’s supervision or collaboration,” and that sixteen states and the
District of Columbia allow APRNs to practice and prescribe independently.43 The IOM further
stated that “[n]o studies suggest that care is better in states that have more restrictive scope-of-
practice regulations for APRNs than in those that do not.”44
V. CONCLUSION
Removing the requirement that APRNs who want to prescribe medications have a
collaborative agreement with a physician has the potential to benefit consumers by expanding
choices for patients, containing costs, and improving access. Maintaining an unnecessary and
burdensome requirement is likely to deprive consumers of the benefits that increased competition
can provide. Accordingly, we encourage the West Virginia legislature to carefully review the
safety record of APRNs in West Virginia and to consider whether the current requirement is
necessary to assure patient safety in light of the almost twenty years of prescribing experience of
West Virginia APRNs, as well as the findings of the Institute of Medicine. Absent
countervailing safety concerns regarding APRN prescribing practices, removing the
collaborative agreement for prescriptive authority appears to be a procompetitive improvement
in the law that would benefit West Virginia health care consumers.
Respectfully submitted,
Andrew I. Gavil, Director
Office of Policy Planning
Richard A. Feinstein, Director
Bureau of Competition
Howard Shelanski, Director
Bureau of Economics
1 This staff testimony expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Competition, and Bureau of Economics. The testimony does not necessarily represent the views of the Federal
Trade Commission or of any individual Commissioner. The Commission, however, has voted to authorize staff to
submit this testimony.

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2 The Institute of Medicine (IOM) and others use the term APRN to include nurse practitioners, certified nurse
midwives, certified registered nurse anesthetists, and clinical nurse specialists. West Virginia law was recently
amended to replace the term “advanced nurse practitioner” with “advanced practice registered nurse.” See Senate
Bill No. 572, amending W.VA. CODE § 30-7-1. To simplify the foregoing discussion, our testimony uses the term
APRN, but our comments focus on the statutory restrictions and evidence related specifically to APRNs who
provide primary care services, previously referred to in West Virginia laws and regulations as “advanced nurse
practitioners” or ANPs. Certified Nurse Midwives (“CNMs”) in West Virginia currently must have a collaborative
agreement in place to practice, treat, and prescribe medications. To the extent that CNMs provide primary care for
women, including gynecological exams and prescriptions, it is possible the same reasoning for removing restrictions
on nurse practitioners could apply to this aspect of CNMs’ practice. Certified Registered Nurse Anesthetists
(“CRNAs”) in West Virginia can only practice under the supervision of a physician; our testimony does not address
CRNA supervision requirements.
3 Letter from The Hon. Daniel Foster, The Senate of West Virginia, to the Office of Policy Planning, Bureau of
Economics, and Bureau of Competition, Federal Trade Commission (May 3, 2012) [hereinafter Letter from Sen.
Foster].
4 Letter from Sen. Foster; West Virginia Senate Concurrent Resolution No. 93, available at
http://www.legis.state.wv.us/Bill Text HTML/2012 SESSIONS/RS/Bills/scr93%20intr.htm.
5 See INSTITUTE OF MEDICINE, THE FUTURE OF NURSING: LEADING CHANGE, ADVANCING HEALTH, available at
http://www.iom.edu/Reports/2010/The-Future-of-Nursing-Leading-Change-Advancing-Health.aspx [hereinafter
IOM NURSING REPORT] at 4-5, 9-15, 29-30 (2011) (discussing need for federal and state actions “to update and
standardize scope-of-practice regulations to take advantage of the full capacity and education of APRNs”); id. at 10
(recommending specifically state legislatures “[r]eform scope-of-practice regulations to conform to the National
Council of State Boards of Nursing Model Nursing Practice Act and Model Nursing Administrative Rules”).
6 Letter from Sen. Foster.
7 See generally IOM NURSING REPORT, supra note 5.
8 Id. at 4. See also id. at 85-161, 98-99 (discussing nursing scope-of-practice issues and quality of care, including
numerous quality of care studies); About the Institute of Medicine, available at http://www.iom.edu/About-
IOM.aspx.
9 See discussion infra at Section IV.a. and notes 23-25 and accompanying text (discussing primary care provider
shortages and the number of West Virginians who could gain health care coverage over the next few years as a
result of the Affordable Care Act).
10 Federal Trade Commission Act, 15 U.S.C. § 45.
11 Standard Oil Co. v. Fed. Tr. Comm’n, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy long
has been faith in the value of competition.”).
12 See FTC, An Overview of FTC Antitrust Actions in Health Care Services and Products (June 2012), available at
http://www.ftc.gov/bc/healthcare/antitrust/hcupdate.pdf; FTC, Competition in the Health Care Marketplace: Formal
Commission Actions (1996 – 2008), available at http://www ftc.gov/bc/healthcare/antitrust/commissionactions.htm.
13 See FTC & U.S. DEP’T OF JUSTICE (“DOJ”), IMPROVING HEALTH CARE: A DOSE OF COMPETITION (2004),
available at http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf [hereinafter FTC & DOJ, IMPROVING
HEALTH CARE].
14 FTC and staff advocacy may comprise letters or comments addressing specific policy issues, Commission or staff
testimony before legislative or regulatory bodies, amicus briefs, or reports. See, e.g., FTC Staff Letter to The Hon.
Stephen LaRoque, North Carolina House of Representatives (May 2012) (regarding the regulation of dental service
organizations and the business organization of dental practices), available at
http://www.ftc.gov/os/2012/05/1205ncdental.pdf; FTC and DOJ Written Testimony before the Illinois Task Force
on Health Planning Reform Concerning Illinois Certificate of Need Laws (Sept. 2008), available at
http://www.ftc.gov/os/2008/09/V080018illconlaws.pdf; FTC Amicus Curiae Brief in In re Ciprofloxacin

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Hydrochloride Antitrust Litigation Concerning Drug Patent Settlements Before the Court of Appeals for the Federal
Circuit (Case No. 2008-1097) (Jan. 2008), available at http://www.ftc.gov/os/2008/01/080129cipro.pdf; FTC &
DOJ, IMPROVING HEALTH CARE supra note 13.
15 FTC Staff Letter to The Hon. Thomas P. Willmott and The Hon. Patrick C. Williams, Louisiana House of
Representatives, Concerning the Likely Competitive Impact of Louisiana House Bill 951 Concerning Advanced
Practice Registered Nurses (Apr. 2012), available at
http://www.ftc.gov/os/2012/04/120425louisianastaffcomment.pdf; FTC Staff Letter to The Hon. Paul Hornback,
Senator, Commonwealth of Kentucky State Senate Concerning Kentucky Senate Bill 187 and the Regulation of
Advanced Practice Registered Nurses (Mar. 2012), available at
http://www.ftc.gov/os/2012/03/120326ky staffletter.pdf; FTC Staff Letter to The Hon. Rodney Ellis and The Hon.
Royce West, the Senate of the State of Texas, Concerning Texas Senate Bills 1260 and 1339 and the Regulation of
Advanced Practice Registered Nurses (May 2011), available at
http://www.ftc.gov/os/2011/05/V110007texasaprn.pdf; FTC Staff Letter to The Hon. Daphne Campbell, Florida
House of Representatives, Concerning Florida House Bill 4103 and the Regulation of Advanced Registered Nurse
Practitioners (Mar. 2011), available at http://www ftc.gov/os/2011/03/V110004campbell-florida.pdf;
16 Although West Virginia law was recently revised to use the term “Advanced Practice Registered Nurse,” more
broadly, the law continues to specify separate requirements, including supervision by a physician, for Certified
Nurse-Midwives (W.VA. CODE §§ 30-15-1 – 8) and Certified Registered Nurse Anesthetists (W.VA. CODE § 30-7-
15).
17 W.VA. CODE § 30-7-1, as amended by Senate Bill 572 (2012). See also W.VA. CODE R. § 19-7-2 (Title 19,
Legislative Rule, Board of Registered Professional Nurses, Series 7: Announcement of Advanced Practice
Registered Nurse) and proposed revisions, recently filed with the West Virginia Secretary of State and the
Legislative Rulemaking Review Committee at
http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=24012&Format=PDF. See explanation of Legislative Rules,
infra, note 18.
18 W.VA. CODE R. §§ 19-7-1 to 4. According to the West Virginia Secretary of State’s website, “[l]egislative rules
are proposed by an agency subject to the Administrative Procedure Act (APA), but must be approved by the
Legislature before they go into effect, unless they are filed as Emergency rules. A legislative rule is the only form of
rule under the APA which: carries the force of law, or supplies a basis of civil or criminal liability, or grants or
denies a specific benefit.” STATE OF WEST VIRGINIA, WEST VIRGINIA SECRETARY OF STATE, ADMINISTRATIVE LAW,
RULE MAKING, TYPES OF RULES, http://www.sos.wv.gov/administrative-law/rulemaking/Pages/types.aspx (last
visited Sept. 6, 2012). See also W.VA. CODE §29A-3-11 (explaining that a proposed rule must be submitted by the
state agency to the legislative rulemaking review committee, which has the following options after reviewing the
legislative rule: “the committee shall recommend that the Legislature: (1) Authorize the promulgation of the
legislative rule; or (2) Authorize the promulgation of part of the legislative rule; or (3) Authorize the promulgation
of the legislative rule with certain amendments; or (4) Recommend that the proposed rule be withdrawn.”).
19 See W.VA. CODE §§ 30-7-15a –c, as amended by Senate Bill 535 (2012) (the law as amended maintains the
collaborative agreement and other related requirements, but allows APRNs to prescribe medications for chronic
conditions other than chronic pain for up to one year (prior regulations limited most prescriptions to a six-month
supply or less) and to prescribe anticoagulants (prior law prohibited such prescriptions)); W.VA. CODE R. §§ 19-8-1
to 6 (Title 19, Legislative Rule, Board of Registered Professional Nurses, Series 8: Limited Prescriptive Authority
for Nurses in Advanced Practice) and proposed revisions, recently filed with the West Virginia Secretary of State
and the Legislative Rulemaking Review Committee at
http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=24006&Format=PDF. See also West Virginia Board of
Examiners for Registered Professional Nurses, instructions for collaborative agreements for prescriptive authority,
available at http://www.wvrnboard.com/images/initial%20application%20for%20prescriptive%20authority.pdf (the
APRN must certify that the collaborative agreement includes: 1) agreed upon written guidelines or protocols; 2)
statements describing the individual and shared responsibilities of the APRN and the physician; 3) provision for the
periodic and joint evaluation of the prescriptive practice; and 4) provision for the periodic and joint review and
updating of the written guidelines or protocols).

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20 IOM FUTURE OF NURSING REPORT, supra note 5, at 158, Table 3-A1.
21 See Kaiser Commission on Medicaid and the Uninsured, Improving Access to Adult Primary Care in Medicaid:
Exploring the Potential Role of Nurse Practitioners and Physician Assistants, at 1 (Mar. 2011) (noting by 2020 the
U.S. will face an estimated shortage of 91,000 physicians, with a projected shortfall of approximately 45,000
primary care physicians and 46,000 specialists), available at http://www kff.org/medicaid/upload/8167.pdf
[hereinafter “Kaiser Commission, Improving Access”]; the Association of American Medical Colleges (AAMC)
Physician Shortages Factsheet, available at
https://www.aamc.org/download/150584/data/physician shortages factsheet.pdf (in its projections of physician
supply and demand, the AAMC assumes that each additional two NPs (or Physicians Assistants) reduce physician
demand by one) [hereinafter “AAMC, Physician Shortages”]; U.S. DEP’T OF HEALTH & HUMAN SERVS., HEALTH
RESOURCES & SERVS. ADMIN. BUREAU OF HEALTH PROFESSIONS, THE PHYSICIAN WORKFORCE: PROJECTIONS AND
RESEARCH INTO CURRENT ISSUES AFFECTING SUPPLY AND DEMAND [hereinafter HRSA PHYSICIAN WORKFORCE
REPORT] 70-72, exhibits 51-52 (2008), available at http://bhpr.hrsa.gov/healthworkforce/reports/physwfissues.pdf;
Annie Lowrey & Robert Pear, Doctor Shortage Likely to Worsen With Health Law, NY TIMES (July 28, 2012),
available at http://www.nytimes.com/2012/07/29/health/policy/too-few-doctors-in-many-us-communities.html.
22 See Kaiser Commission, Improving Access, supra note 21, at 1; Leighton Ku et al., The States’ Next Challenge –
Securing Primary Care for Expanded Medicaid Populations, 364 N. ENGL. J. MED. 493, 494 (2011).
23 West Virginia Senate Concurrent Resolution No. 93, available at
http://www.legis.state.wv.us/Bill Text HTML/2012 SESSIONS/RS/Bills/scr93%20intr.htm.
24 U.S. Dep’t of Health & Human Servs., Health Resources & Servs. Admin., Find Shortage Areas by State and
County, available at http://hpsafind.hrsa.gov/HPSASearch.aspx (last visited July 27, 2012).
25 West Virginians for Affordable Care, The Affordable Care Act: Moving Forward in West Virginia, at 4 (Apr.
2011), available at http://www.wvahc.org/downloads/ACA-Moving Forward in WV041611.pdf. See also Jennifer
Sullivan and Kathleen Stoll, Lower Taxes, Lower Premiums: The New Health Insurance Tax Credit in West
Virginia, Families USA (Sept. 2010), available at http://www familiesusa.org/assets/pdfs/health-reform/premium-
tax-credits/West-Virginia.pdf; John Holahan and Irene Headen, Medicaid Coverage and Spending in Health
Reform: National and State-by-State Results for Adults at or Below 133% FPL, Kaiser Commission on Medicaid
and the Uninsured (May 2010), available at http://www kff.org/healthreform/upload/Medicaid-Coverage-and-
Spending-in-Health-Reform-National-and-State-By-State-Results-for-Adults-at-or-Below-133-FPL.pdf. It is
unclear what impact, if any, the U.S. Supreme Court’s recent decision on the Medicaid provisions of the ACA will
have on West Virginia’s decisions with respect to expanding Medicaid. See generally National Federation of
Independent Business v. Sebelius, No. 11–393 (U.S. Sup. Ct. June 28, 2012).
26 Kaiser Commission, Improving Access, supra note 21, at 3. The statistics for West Virginia suggest that APRNs
could be especially helpful for addressing access issues. For example, approximately 43% of the population resides
in non-metropolitan areas, compared to an average of 16% of the U.S. population (Kaiser Family Foundation, State
Health Facts: West Virginia, Population Distribution by Metropolitan Status, available at
http://www.statehealthfacts.org/profileind.jsp?ind=18&cat=1&rgn=50). “21.6% of West Virginia’s adults aged 18 -
64 lacked any kind of health care coverage, compared with a national average of 18.2%;” and approximately “17.2%
of West Virginia’s population lives below the poverty level, compared with 13.2% of the national population.”
WEST VIRGINIA DEPARTMENT OF HEALTH & HUMAN RESOURCES, ADVOCATING FOR CHRONIC DISEASE
MANAGEMENT AND PREVENTION at 6, 4 (May 2011), available at
http://www.wvcancer.com/Portals/9/Chronic%20Disease%20Strategic%20Plan%202011.pdf.
27 See Kaiser Commission, Improving Access, supra note 21, at 3; AAMC, Physician Shortages, supra note 21.
28 See generally AARP & Robert Wood Johnson Foundation, Center to Champion Nursing in America, Access to
Care and Advanced Practice Nurses: A Review of Southern U.S. Practice Laws (2010), available at
http://championnursing.org/resources/access-care-and-advanced-practice-nurses-review-southern-us-practice-laws
(policy paper discussing restrictions on APRN practice in 11 southern states (not including West Virginia),

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including the impact on access and consumers and advocating the removal of state restrictions on APRNs’ practice,
including the removal of restrictions on prescriptive authority).
29 West Virginia Board of Examiners for Registered Professional Nurses, ANNUAL REPORT OF THE BIENNIUM, July
1, 2009 – June 30, 2011, at pp. 84-85, 90-91, 100-101, available at
http://www.legis.state.wv.us/legisdocs/reports/agency/R02 FY 2011 1330.pdf.
30 See, e.g., TEXAS LEGISLATIVE BUDGET BOARD STAFF, TEXAS STATE GOVERNMENT EFFECTIVENESS AND
EFFICIENCY: SELECTED ISSUES AND RECOMMENDATIONS 297, 300 (Jan. 2011) (submitted to the 82nd Texas
Legislature) (stating the number of advanced practice nurses is lower in states with restrictive regulatory
environments, and these restrictions may “limit the expansion of retail clinics, which generally employ APRNs to
provide a limited range [of] primary healthcare”) [hereinafter TEXAS BUDGET BOARD STAFF REPORT]; Julie A.
Fairman et al., Perspective: Broadening the Scope of Nursing Practice, 364 N. ENGL. J. MED. 193, 194 (2011)
(noting “nurses tend to move from more restrictive to less restrictive states . . . with a resulting loss of access to care
for patients”).
31 West Virginia Senate Concurrent Resolution No. 93, available at
http://www.legis.state.wv.us/Bill Text HTML/2012 SESSIONS/RS/Bills/scr93%20intr htm.
32 See Joanne M. Pohl et al., Unleashing Nurse Practitioners’ Potential to Deliver Primary Care and Lead Teams,
29 HEALTH AFFAIRS 900, 901 (2010), available at http://content healthaffairs.org/content/29/5/900 full.pdf+html
(noting APRNs and physicians assistants are underutilized “despite being qualified to provide primary care at a
lower cost than other providers”).
33 FTC staff discussions with representatives of organizations that represent APRNs in West Virginia indicated one
APRN pays a collaborating physician approximately $20,000 per year based on a percentage of the APRN’s
monthly revenue and another pays the physician an hourly rate for the collaboration. Although the West Virginia
Center for Nursing website at http://www.wvcenterfornursing.org/pdf/WVStateDataSnapshotARNs.pdf provides
data suggesting a large percentage of APRNs in West Virginia have prescriptive authority, it is our understanding
from our discussions that most of these APRNs work as employees of physicians or other health care institutions.
Anecdotal evidence from other states suggests APRNs pay significant fees to collaborating physicians. See, e.g.,
Letter from The Hon. Paul Hornback, Commonwealth of Kentucky State Senate, to Susan DeSanti, Director, Office
of Policy Planning, Federal Trade Commission (Jan. 18, 2012) (noting in “some cases, the physicians are charging a
considerable amount of money monthly or annually to sign a CAPA [the collaborative prescribing agreement],
although they essentially perform no services for the fee”); Letter from The Hon. Thomas P. Willmott and The Hon.
Patrick C. Williams, Louisiana House of Representatives, to Susan S. DeSanti, Director, Office of Policy Planning,
Federal Trade Commission (Jan. 18, 2012), (noting that APRNs in Louisiana often must pay 10-45% of their
collected fees to physicians for entering into collaborative practice agreements).
34 See discussion in Section III supra.
35 See discussion in note 36 infra. See also Letter from Sen. Foster (noting the “WV Board of Medicine has
promulgated collaborative agreement guidelines with additional recommended restrictions”); West Virginia Board
of Medicine, guidelines for collaborative agreements, available at http://www.wvbom.wv.gov/collnurse.pdf.
36 See, e.g., WEST VIRGINIA NURSE, Vol.15, No. 3 at p. 9 (Aug., Sept., Oct. 2012), West Virginians Denied Access to
Chronic Care Due to Bogus Warning to Physicians, available at
http://www.aldpub.com/West Virginia/West Virginia.pdf. The article noted that one nurse practitioner (Toni
DiChiacchio) had to halt plans to open a chronic disease management clinic because the “collaborating physician,
who was interested in the services the clinic could provide, was “spooked” by not only his malpractice insurance
company but the WV Board of Medicine,” which incorrectly told the physician that he would have a greater risk of
malpractice by collaborating with a nurse practitioner. The President of the WV Nurses Association stated this was
not an isolated case and that: “These warnings and increasingly restrictive guidelines from the BOM to WV
physicians make it harder for APRNs to get an agreement signed. Without an agreement, needed services like
Toni’s clinic must close their doors. We are very concerned for our patients. There is already a shortage of

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providers and WV is losing APRNs to neighboring states that realize collaborative agreements are unnecessary.
Research proves advanced practice registered nurses provide high quality, safe care.” See also W.VA. CODE §§ 55-
7B-1 to 12 (dealing with medical malpractice and professional liability and stating in § 55-7B-9 that “a health care
provider may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency
unless the alleged agent does not maintain professional liability insurance covering the medical injury which is the
subject of the action in the aggregate amount of at least one million dollars”).
37 See Robin Weinick, et al., Policy Implications of the Use of Retail Clinics at 12 (2010) (Rand Health Technical
Report prepared for the U.S. Dept. of Health and Human Serv.), at
http://www.rand.org/content/dam/rand/pubs/technical reports/2010/RAND TR810.pdf [hereinafter Rand, Policy
Implications of the Use of Retail Clinics] (also noting the services offered at retail clinics are generally narrower in
scope than those provided by urgent care centers and emergency rooms); Ateev Mehrotra et al., Retail Clinics,
Primary Care Physicians, and Emergency Departments: A Comparison of Patients Visits, 27 HEALTH AFFAIRS
1272, 1279 (2008). See generally William M. Sage, Might the Fact that 90% of Americans Live Within 15 Miles of
a Wal-Mart Help Achieve Universal Health Care?, 55 U. Kan. L. Rev. 1233, 1238 (2007) (describing the size and
scope of retail clinics); Mary Kay Scott, Scott & Company, Health Care in the Express Lane: Retail Clinics Go
Mainstream, at 22 (Sept. 2007) (report prepared for the California HealthCare Foundation), available at
http://www.chcf.org/publications.
Evidence indicates that the quality of care provided by APRNs in retail clinics is “similar to that provided
in physician offices and urgent care centers and slightly superior to that of emergency departments.” Ateev
Mehrotra et al., Comparing Costs and Quality of Care at Retail Clinics with that of Other Medical Settings for 3
Common Illnesses, 151 ANNALS INTERNAL MED. 321, 326 (2009) (analyzing 14 quality metrics for commonly
treated ailments, including ear, strep, and urinary tract infections, and finding “[f]or most measures, quality scores of
retail clinics were equal to or higher than those of other care settings”).
38 Cf. Rena Rudavsky, Craig Evan Pollack, & Ateev Mehrotra, The Geographic Distribution, Ownership, Prices,
and Scope of Practice at Retail Clinics, 151 ANNALS INTERNAL MED. 315, 317 (2009) (“In a random sample of 98
[limited service] clinics, all had weekday and weekend hours and 95 (97%) had evening hours (after 6 p m.) on
weekdays.”).
39 See Rand, Policy Implications of the Use of Retail Clinics at 13, supra note 37 (according to many medical
community representatives interviewed for this report, including a representative of the American Medical
Association, “retail clinics have stimulated physicians to adopt evening and weekend hours”).
40 See, e.g., TEXAS BUDGET BOARD STAFF REPORT, supra note 30, at 300 (noting restrictions on APRNs’ scope of
practice may limit both the number and types of retail clinics available to Texas consumers); MARY TAKACH &
KATHY WITGERT, NATIONAL ACADEMY FOR STATE HEALTH POLICY, ANALYSIS OF STATE REGULATIONS AND
POLICIES GOVERNING THE OPERATION AND LICENSURE OF RETAIL CLINICS 6 (Feb. 2009) (noting “the most powerful
state regulatory tools affecting [retail clinics’] operations are the scope of practice regulations that govern nurse
practitioners and other non-physician medical personnel”).
41 See discussion in Section III supra at note 20 and accompanying text.
42 IOM NURSING REPORT, supra note 5 at 85-161; see especially id. at 98 (with respect to many primary care
services, “the contention that APRNs are less able than physicians to deliver care that is safe, effective, and efficient
is not supported by the decades of research that has examined this question”) (internal citations omitted).
43 IOM NURSING REPORT, supra note 5 at 98.
44 Id. at 99. See also Julie A. Fairman et al., Perspective: Broadening the Scope of Nursing Practice, 364 N. ENGL.
J. MED. 193, 194 (2011) (stating “[t]here are no data to suggest that nurse practitioners in states that impose greater

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restrictions on their practice provide safer and better care than those in less restrictive states or that the role of the
physician has changed or deteriorated”).