FTC Staff Comment to the Kansas House of Representatives Concerning Kansas House Bill 2412

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Offi ce of Policy Planning
Bureau of Competition
Bureau of Economics
January 09, 2020
The Honorable Daniel R. Hawkins
Kansas House of Representatives
State Capitol
Topeka, KS 66612
Dear Representative Hawkins:
The Federal Trade Commission ("FTC" or "Commission") Office of Policy Planning
appreciates the opportunity to respond to your request for comments on 2019 House Bill 2412
("H.B. 2412" or "the Bill"), a proposal to expand the scope of practice of Advanced Practice
Registered Nurses ("APRNs") in Kansas.1 In particular, you asked for our input on the Bill's
proposal to "permit APRNs full practice authority by eliminating a requirement that APRNs
must have a collaborative practice agreement executed with a physician in order to prescribe
medications."2 You have also asked for our comment on a proposed amendment "to require all
APRNs to be under the regulatory control of the physician-controlled Kansas Board of Healing
Arts rather than the Kansas Board of Nursing where they are currently regulated."3 For reasons
explained below, we urge the Kansas legislature to enact H.B. 2412 and rescind the collaborative
agreement requirement; in doing so, we urge you not to adopt the proposed amendment
regarding regulation by the Board of Healing Arts.
FTC staffs interest in nursing regulation derives from our experti se in health care
competition issues. The enclosed 2014 FTC staff policy paper, Policy Perspectives: Competition
and the Regulation of Advanced Practice Registered Nurses ("Policy Paper"), analyzes the
competitive implications of various Advanced Practice Registered Nurse ("APRN") regulations,
including mandatory physician-supervision or "collaborative practice" agreements.4 As
1 Letter from the Daniel R. Hawkins to Bilal Sayyed, Director, FTC Office of Policy Planning (Jul. 29, 2019).
2 Id.
3 Id.
4 FED . TRADE COMM ' N STAFF , POLICY PERSPECTNES : COMPETITION AND THE REGULATION OF ADVANCED PRACTICE
NURSES (2014 ), https ://www.ftc.gov/ system/files/documents /reports/policy-perspectives-competition-regulation
advanced-practice-nurses/140307 apmpolicypaper. pdf [hereinafter FTC STAFF POLICY PAPER]. As noted in the FTC
STAFF POLICY PAPER, "a state may impose certain 'collaborative practice' requirements on APRN s, requiring that an
APRN enter into a written agreement with a physician to define the parameters of the APRN's permitted practice.
This can be viewed as a de facto supervision requirement, to the extent that the APRN ca nnot practice without

explained in the Policy Paper, FTC staff recognize the critical importance of patient health and
safety, and we defer to federal and state legislators to determine the best balance of policy
priorities and to define the appropriate scope of practice for APRNs and other health care
professionals. But even well-intentioned laws and regulations may include unnecessary or
overbroad restrictions that limit competition. Undue regulatory restrictions on APRN practice
can harm patients, institutional health care providers, and both public and private third-party
payors. The Policy Paper observes that state-mandated supervision of APRN practice raises
competitive concerns and may, in particular, raise the cost of care, impede access to care, and
frustrate the development of innovative and effective models of team-based health care. 5
As noted in the Policy Paper, the competitive risks associated with undue APRN
restrictions may be heightened in rural and other medically underserved areas.6 For that reason,
the legislature may wish to focus not just on average or aggregate benefits that the Bill may
promote for Kansas as a whole, but on health care cost and access problems facing, for example,
the 66 Kansas counties that are Governor-Designated Medically Underserved Areas,7 based on
assessed shortages of primary care physicians. 8
Expert bodies, including the Institute of Medicine ("IOM"),9 have determined that
APRNs are "safe and effective as independent providers of many health care services within the
scope of their training, licensure, certification and current practice."1°FTC staff have
recommended, therefore, that policy makers carefully examine purported safety justifications for
restrictions on APRN practice in light of the pertinent evidence, evaluate whether such
justifications are well founded, and consider whether less restrictive alternatives would protect
patients without imposing undue burdens on competition and undue limits on patients' access to
basic health care services.
FTC staff urge the Kansas legislature to apply a similar analytical framework. Granting
prescribing authority to Kansas APRNs would benefit Kansas health care consumers -patients,
first and foremost, and both public and private third-party payors. APRNs should be able to
evaluate patients and prescribe medications as needed, as long as they do so within the limits of
securing the approval of an individual physician, whereas the terms of physician practice are in no way dependent
on APRN input." Id. at 11.
5 Id . at 38.
6 See, e.g., id. at 21-25 .
7 Letter from Lee Norman, Secretary, Kansas Dep't Health & Environment, to Melissa Ryan, Health Resources &
Servs. Admin. (Dec. 2, 2019),
http://www .kdheks.gov/olrh/sd resources/Governor Certfied Areas Designations.pdf.
8 Kansas Dep't Health & Environment, 2018 Health Professional Underserved Area Report: (2019),
http://www .kdheks.gov/olrh/download/2018 Underserved Areas Report.pdf.
9 The IOM----established in 1970 as the health arm of the National Academy of Sciences- provides expert advice to
policy makers and the public.
IO FTC STAFF POLICY PAPER, supra note 4, at 2 n.6 and accompanying text (citing INST . OF MED., NAT'L ACAD. OF
SCIENCES, THE FUTURE OF NURSING : LEADING CHANGE, ADVANCING HEALTH 98- 99 (2011) [hereinafter IOM
FUTURE OF NURSING REPORT]).
2

their education and training. Twenty-two states and the District of Columbia already permit such
APRN prescribing, to the benefit of their patients and payors; 11 and we recommend that you
consider the likely benefits of the Bill in light of their experience.
I. 	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. 12 Competition is at the core of
America's economy, 13 and vigorous competition among sellers in an open marketplace gives
consumers the benefits oflower prices, higher quality products and services, and greater
innovation. "[C]ompetition among employers [also] helps actual and potential employees through
higher wages, better benefits, or other terms of employment."14 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 focus of FTC law enforcement, 15 research, 16 and advocacy. 17 In
11 According to the National Council of State Boards of Nursing, 22 states and the District of Columbia, permit
independent prescribing for certified nurse practitioners, Nat'l Council State Bds. Nursing, State Practice
Environment Map, https :/ /www.aanp.org/ advocacy/ state/ state-practice-environment (checked 12/08/ 19).
12 Federal Trade Commission Act, 15 U.S.C. § 45.
13 Standard Oil Co. v. Fed . Trade Comm'n, 340 U.S. 231, 248 (1951) ("The heart ofournational economic policy
long has been faith in the value of competition.").
14 FED. TRADE COMM'N & U.S. DEPT'T OF JUSTICE, ANTITRUST GUIDANCE FOR HUMAN RESOURCE PROFESSIONALS 2
(2016), https://www.ftc.gov/system/files/documents/public statements/992623/ftc-doj hr guidance final 10-20-
16.pdf.
15 See Fed. Trade Comm'n, Competition in the Health Care Marketplace, Cases, https://www.ftc.gov/tips
advice/competition-guidance/industry-guidance/health-care.
16 See FED. TRADE COMM'N & U.S. DEP'T OF JUSTICE, IMPROVING HEALTH CARE: A DOSE OF COMPETITION (2004),
https :/ /www. ftc. gov/sites/defaul ti files/ documents/reports/improving-health-care-dose-competition-report-federal
trade-commission-and-department-justice/040723healthcarerpt. pdf [hereinafter FTC & DOJ, IMPROVING HEALTH
CARE]; Fed. Trade Comm ' n, The Strength of Competition in the Sale of Rx Contact Lenses: An FTC Study (2005),
(https://www.ftc.gov/sites/default/files/documents/reports/strength-competition-sale-rx-contact-lenses-ftc
study/050214contactlensrpt.pdf.
17 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., Joint Statement of the Fed.
Trade Comm'n and the Antitrust Div. of the U.S. Dep't Justice Regarding Certificate-of-Need (CON) Laws and
Alaska Senate Bill 62, Which Would Repeal Alaska's CON Program (2017),
https:// www .ftc .gov/system/files/documents/advocacy documents/ joint-statement-federal-trade-commission
antitrust-division-us-department-justice-regarding/v 170006 ftc-
doj comment on alaska senate bill re state con law.pdf; FTC Staff Comment Before the Dep't of Health &
Human Servs. Regarding th e 21 st Century Cures Act: Interoperability, Information Blocking, and the ONC Health
IT Certification Program (2019), https://www.ftc .gov/system/files/documents/advocacy documents/ftc-staff
comment-department-health-human-services-regarding- 21 st-century-cures-act-
interoperability/v 190002 hhs one info blocking staff comment 5-30-19.pdf; Brief for the United States and the
License to Compete: Occupational Licensing and the State Action Doctrine: Hearing Before the S. Comm. on the
Judiciary, Subcomm. On Antitrust, Competition Policy, and Consumer Rights, 114th Cong. 1-2 (2016),
https :/ /www. fie .gov/ pub lic-statements/2016/02/prepared-statement-federal-trade-commission-license-compete
occupational; Fed. Trade Comm'n as Amici Curiae Supporting Plaintiffs-Appellees, Teladoc, Inc. v. Texas Medical
Board, (5 th Cir. Dec. 9, 2016) (Case: 16-50017).
3

addition to the attached Policy Paper, FTC staff have submitted written comments analyzing the
likely competitive effects of proposed APRN regulations in various states, and observing that
removing excessive supervision requirements can achieve significant consumer benefits. 18
Several such comments have focused, in particular, on APRN prescribing authority, as the ability
to write prescriptions is one of the defining criteria for independent APRN practice. 19
II. 	H.B. 2412
The Bill would, as noted in your letter, amend Kansas statutes to permit a licensed and
experienced APRN to "prescribe, procure and administer prescription drugs and controlled
substances in schedules II through V pursuant to applicable federal and state laws,"20 striking the
current requirement that this be done "pursuant to a written protocol" established with a Kansas
licensed physician.21 An APRN with "less than 4,000 hours oflicensed active practice as an
advanced practice registered nurse under a collaborative relationship with a physician" would not
be able to prescribe drugs independently until he or she completed a "program of transition to
full practice as an advance practice registered nurse," under rules promulgated by the Board of
Nursing.22
While proposing to remove the requirement of a formal written protocol with a particular
Kansas licensed physician, the Bill would not otherwise alter the substantive licensing
18 See, e.g. , FTC Staff Comment to the Hon. Kent Leonhardt, Senator, Senate of West Virginia, Concerning the
Competitive Impact of WV Senate Bill 516 on the Regulation of Certain Advanced Practice Registered Nurses (Feb.
2016), https://www. fie. gov/system/files/ documents/ advocacy documents/ftc-staff-comment-senate-west-virginia
conceming-competitive-impact-wv-senate-bill-516-regulation/ 160212 westvirginiacomment. pdf; Letter from FTC
Staff to the Hon. Jenny A Home, Representative, S.C. House of Representatives, regarding House Bill 3508 and
3078 on Advanced Practice Registered Nurse Regulations (Nov. 2, 2015),
https://www. ftc. gov/ system/files/ documents/advocacy documents/ftc-staff-comment-south-carolina-representati ve
jenny. home-regarding-house-bill-3 5 08-3 07 8-advanced-practice-registered-nurse-regulations/ 151103 scapm. pdf;
Letter from FTC Staff to the Hon. Jeanne Kirkton, Representative, Mo. House of Representatives (Apr. 21, 2015),
https://www.ftc.gov/system/files/documents/advocacy documents/ftc-staff-comment-representative-jeanne-kirkton
missouri-house-representatives-regarding-competitive/l 50422missourihouse.pdf (regarding collaborative practice
arrangements between physicians and APRNs); Letter from FTC Staff to the Hon. Kay Khan, Representative, Mass.
House of Representatives (Jan. 17, 2014),
https: // www.ftc.gov/sites/default/files/documents/advocacy documents/ftc-staff-comment-massachusetts-house
representatives-regarding-house-bill-6-h.2009-conceming-supervisory-requirements-nurse-practitioners-nurse
anesthetists/140123massachusettnursesletter.pdf (regarding supervisory requirements for nurse practitioners and
nurse anesthetists); Letter from FTC Staff to Theresa W. Conroy, Representative, Conn. House of Representatives
(Mar. 19, 2013), https://www.ftc .gov/sites/default/files/documents/advocacy documents/ftc-staff-letter-honorable
theresa-w.conroy-connecticut-house-representatives-conceming-likely-competitive-impact-connecticut-house
bill/l 30319apmconroy.pdf (APRNs).
19 See, e.g., FTC Staff Comment to the Hon. Kent Leonhardt, Senator, Senate of West Virginia, supra note 18 ;_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),
http://www.ftc.gov/ os /2011/05/Vl 10007texasapm.pdf
20 Proposed K.SA .. § 65-l 130(d)(l).
21 Id.
22 Id. at§ 65-1130(h)(l)-(2).
4

requirements for Kansas APRNs, and the Bill would not otherwise alter the scope of practice of
APRNs, according to their education and training, or according to other Kansas and federal laws
and regulations.
III. 	LIKELY IMPACT OF THE BILL
a. 	Excessive Restrictions on Advanced Practice Nursing Raise Competition
Concerns That May Impact Access, Cost, and Quality of Care
FTC staff recognize that certain professional licensure requirements and scope-of
practice restrictions may protect patients.23 Consistent with patient safety, however, we have
urged regulators and legislators to consider that independent practice by APRN s may facilitate
greater competition, which also may benefit patients. If APRNs are better able to practice to the
full extent of their education, training, and abilities, and if institutional health care providers are
better able to deploy APRNs as needed, health care consumers are likely to benefit from
improved access to health care, lower costs, and additional innovation.
The ability to write prescriptions is one of the defining criteria for independent APRN
practice.24 In brief, APRNs cannot practice independently if they cannot write prescriptions
independently. Twenty-two states and the District of Columbia now permit independent
prescribing by advanced practice nurses.25 As the IOM observes, studies suggest that APRNs are
safe and effective in writing prescriptions, that APRNs and MDs have comparable prescribing
patterns, and that patients of APRN s and MDs have comparable outcomes when APRN s can
prescribe medicines independent of physician supervision.26
23 For example, licensure requirements or scope-of-practice restrictions may sometimes offer an efficient response to
certain types of market failure arising in professional services markets. See CAROLYN Cox & SUSAN FOSTER , FED.
TRADE COMM'N , BUREAU OF ECONOMICS, THE COSTS AND BENEFITS OF OCCUPATIONAL REGULATION 5-6 (1990),
http ://www. fie. go vibe/ consumerbehavior/docs/reports/CoxF oster90. pdf.
24 See, e.g., IOM FUTURE OF NURSING REPORT, supra note 10, at 100,332; FTC Staff Louisiana APRN Comment,
supra note 18, at 3, 5; West Virginia Testimony, supra note 18, at 3-6.
25 See supra note 11.
26 IOM FUTURE OF NURSING REPORT, supra note 10, at 98-99, 108 (citing, e.g., M.O. Mundinger et al., Primary
Care Outcomes in Patients Treated by Nurse Practitioners or Physicians: A randomized Trial, 283 JAMA 59 (2000)
(comparing outcomes for 1316 ambulatory care patients randomly assigned to APRN and MD primary care
providers, where APRNs had "same authority to prescribe, consult, refer, and admit patients," and finding no
significant difference in patients' health status or physiologic test results); Lenz et al., Primary Care Outcomes in
Patients Treated by Nurse Practitioners or Physicians: Two-year Follow-up, 61 MED. CARE RES. REV. 332 (2004)
(Two-year follow-up data for Mundinger et al. consistent with preliminary results); Ann B. Hamric et al., Outcomes
Associated with Advanced Nursing Practice Prescriptive Authority, 10 J. Amer. Acad. Nurse Practitioners 113
(1998) (safety and effectiveness in study of 33 APRNs in 25 primary care sites); Pamela Venning et al., Randomised
Controlled Trial Comparing Cost Effectiveness of General Practitioners and Nurse Practitioners in Primary Care,
320 BRIT. MED. J. 1048, 1050 (2000) ("There was no significant difference in patterns of prescribing or health status
outcome .... "); see also FTC STAFF POLICY PAPER, supra note 4, at 37-38. FTC staff are not aware of any
empirical evidence supporting a contrary contention that patient harms or risks are particularly associated with
APRN prescribing.
5

Section III of the FTC staff Policy Paper discusses in detail the potential competitive
harms from overly restrictive APRN supervision requirements, including the types of mandatory
collaborative practice agreements that roughly half the states now require.27 The Policy Paper
analyzes these competitive harms as potential consequences of market-wide regulations, and the
potential benefits of policy reform as those likely to follow the repeal or retrenchment of such
regulatory constraints. The Policy Paper analyzes three basic issues of particular relevance to the
Proposed Rule.
First, regulatory constraints on APRN practice limit the ability of APRN s to expand
access to primary care services and to ameliorate both current and projected health care
workforce shortages. The United States faces a substantial and growing shortage of physicians,
especially in primary care.28 As a result, many Americans may face limited access to basic health
care services, particularly in poor or rural areas.29 Due to physician shortages, there are
approximately 6,900 primary care health professional shortage areas ("HPSAs") across the
United States.3°Kansas has many such areas, ranging over large parts of the state.31 For example,
as noted above, 66 Kansas counties are Governor-Designated Medically Underserved Areas,32
based on assessed shortages of primary care physicians. 33 Such areas must be both rural (located
outside a U.S. Census Bureau urbanized area) and underserved; that is, they must be either
federally designated health professional shortage areas or medically underserved areas or Kansas
designated shortage areas.34
27 See FTC STAFF POLICY PAPER, supra note 4, at 18-38. Somewhat more than half of the states still require some
form of physician supervision for APRNs, although the particulars of those requirements vary state-by-state. Id.
Requirements also vary somewhat for different categories of APRNs. According to the National Council of State
Boards of Nursing, under slightly different criteria than those for the V A's "full practice authority," 22 states and the
District of Columbia permit "independent practice" by CRNAs, Nat'! Council State Bds. Nursing, CRNA
Independent Practice Map, https://www.ncsbn.org/5404.htm, and 25 states and the District of Columbia permit
"independent practice" by CNMs, Nat'! Council State Bds. Nursing, CRNA Independent Practice Map,
https://www.ncsbn.org/5405.htm (last visited June 20, 2016).
28 FTC STAFF POLICY PAPER, supra note 4, at 20.
29 Id. at 21; IOM FUTURE OF NURSING REPORT, supra note 10, at 106---07 ("Expanding the scope of practice for NPs
is particularly important for the rural and frontier areas of the country. Twenty-five percent of the U.S. population
lives in these areas; however, only 10 percent of physicians practice in these areas (NRHA, 2010). People who live
in rural areas are generally poorer and have higher morbidity and mortality rates than their counterparts in suburban
and urban settings, and they are in need of a reliable source of primary care providers (NRHA, 201 0).").
30 U.S. Dep't Health & Human Servs., Health Resource & Servs. Admin ., HRSA Data Warehouse Fact Sheet Maps
FY 2018 (indicating 6,890 primary care HPSAs), https://data.hrsa.gov/maps/fact-sheet-maps/ (last visited Dec. 9,
2019).
31 Under federal criteria, 80 Kansas counties either qualify as Geographic health professional shortage areas
(HPSAs) or comprise population HPSAs. Kansas Dep't Health & Environment, 2018 Health Professional
Underserved Area Report, app. C, 24 (2019),
http://www.kdheks.gov/olrh/download/2018 Underserved Areas Report.pdf; see also Health Resources & Servs.
Admin., data.hrsa.gov, Find Shortage Areas, https://data.hrsa.gov/tools/shortage-area (searchable database for health
professional shortage areas and medically underserved areas, by state or county).
32 See text accompanying note 7, supra.
33 See text accompanying note 8, supra.
34 Id.
6

Expanded APRN practice is widely regarded as a key strategy to alleviate such provider
shortages, especially in medically underserved areas and for medically underserved
populations.35 Nationally, APRNs already "make up a greater share of the primary care
workforce in less densely populated areas, less urban areas, and lower income areas, as well as in
HPSAs."36
Second, legal or regulatory hurdles to APRN practice may raise the costs of APRN
services, thereby reducing supply and further diminishing access to basic primary care. APRNs
tend to provide care at lower cost than physicians. 37 But "collaborative practice" or formal
"protocol" requirements may add additional costs to those services. Both patients and third-party
payors are harmed to the extent that higher costs are passed along as higher prices.38 In contrast,
when such requirements are reduced, the supply of professionals willing to offer APRN services
at any given price is likely to increase. In underserved areas and for underserved populations, the
benefits of expanding supply are clear: consumers may gain access to services that otherwise
would be unavailable.39 Even in well-served areas, a supply expansion tends to lower prices and
drive down health care costs.40
Third, "rigid supervision requirements may impede, rather than foster, development of
effective models of team-based care."41 Health care providers that employ or contract with
35 See, e.g., IOM FUTURE OF NURSING REPORT, supra note 10, at 27-28; NAT'L GOVER,"IORS Ass'N, NGA p APER:
THE ROLE OF NURSE PRACTITIONERS IN MEETING INCREASING DEMAND FOR PRIMARY CARE 11 (2012),
http://www.nga.org/files/live/sites/NG A/files/pd £' l 212NursePractitionersPaper .pdf [hereinafter NAT' L GOVERNORS
Ass 'N, NGA PAPER]. We do not mean to suggest that reforming APRN scope-of-practice restrictions is a panacea
for primary care access problems. Rather, reducing undue restrictions on APRN scope of practice can be one
significant way to help ameliorate existing and projected access problems. [undue hyperlink on highlighted part]
36 FTC STAFF POLICY PAPER, supra note 4, at 25 .
37 Id . at 28 . For example, a study conducted for the Commonwealth of Massachusetts by the RAND Corporation
suggests concrete savings that might be associated with expanded APRN (and PA) scope of practice, due to the
lower costs and prices that tend to be associated with APRN-delivered services: "between 2010 and 2020,
Massachusetts could save $4.2 to $8.4 billion through greater reliance on NPs and P As in the delivery of primary
care." CHRISTINE E. EIBNER ET AL., RAND HEALTH REPORT SUBMITTED TO THE COMMONWEALTH OF
MASSACHUSETTS, CONTROLLING HEALTH CARE SPENDING IN MASSACHUSETTS: AN ANALYSIS OF OPTIONS, 103-104
(2009), http://www.rand.org/content/ dam/rand/pubs/technical reports/2009 /RAND TR73 3. pdf (describing
conditions for upper and lower bound estimates and projections).
38 FTC STAFF POLICY PERSPECTIVES, supra note 4, at 27-28.
39 "Expanded APRN practice is widely regarded as a key strategy to alleviate provider shortages, especially in
primary care, in medically underserved areas, and for medically underserved populations." FTC STAFF POLICY
PERSPECTIVES, supra note 4, at 20 (citing, e.g., IOM FUTURE OF NURSING REPORT, supra note 10, at 98-103, 157-
61 annex 3-1 (2011 ); CHRISTINE E. EIBNER ET AL., RAND HEALTH REPORT SUBMITTED TO THE COMMONWEALTH OF
MASSACHUSETTS, CONTROLLING HEALTH CARE SPENDING IN MASSACHUSETTS: AN ANALYSIS OF OPTIONS 99
(2009), http://www.rand.org/content/dam/rand/pubs/technical_reports/2009/RAND_ TR733 .pdf; NAT'L GOVERNORS
ASS'N, NGA PAPER, supra note 35.
40 The National Governors Association recognized the impact of this supply expansion in its NGA PRIMARY CARE
PAPER, supra note 39.
41 FTC STAFF POLICY PERSPECTIVES , supra note 4, at 34.
7

APRNs typically develop and implement their own practice protocols, hierarchies of supervision,
and models of team-based care to promote quality of care, satisfy their business objectives, and
comply with regulations. Collaboration between APRNs and physicians is common in all states,
including those that permit APRNs to practice independently.42 Most APRNs work for
institutional providers or physician practices with established channels of collaboration and
supervision, and even "independently" practicing APRNs typically consult physicians and refer
patients as appropriate.43
Moreover, new models of collaboration are an important area of innovation in health care
delivery. Proponents of team-based care have recognized the importance of this innovation,
given the myriad approaches to team-based care that may succeed in different practice settings.44
Rigid collaborative practice or protocol agreement requirements "can arbitrarily constrain this
type of innovation, as they can impose limits or costs on new and beneficial collaborative
arrangements, limit a provider's ability to accommodate staffing changes across central and
satellite facilities or preclude some provider strategies altogether."45 FTC staff have reviewed
reports from expert health agencies as well as the published academic literature, but are unaware
of evidence that statutory practice agreement requirements are needed to achieve the benefits of
team-based health care.
The competitive impact of unnecessary APRN regulations is concerning in light of
evidence that independent practice--including independent prescribing--by APRNs might offer
substantial benefits to Kansas health care consumers. As noted above, the competition issues
analyzed in the FTC staff policy paper reinforce health policy findings and recommendations of
expert bodies such as the IOM. For example, a 2011 IOM report identifies a key role for APRNs
in improving health care delivery, while expressing concern about undue restrictions on APRN
prescribing and practice.46 Based on a rigorous examination of APRN practice issues, the IOM
found that "[r]estrictions on scope of practice ... have undermined [nurses'] ability to provide
and improve both general and advanced care."47 Similarly, in 2012, the National Governors
Association ("NGA") reported on APRNs' potential to address increased demand for primary
care services, particularly in historically underserved areas.48 The NGA report noted the high
42 Regarding diverse practice settings and collaboration, see IOM FUTURE OF NURSING REPORT, supra note 10, at 23 ,
58-59, 65-67, 72-76; see generally Pamela Mitchell et al., Core Principles & Values of Effective Team-Based Health
Care (Discussion Paper, Institute of Medicine 2012), http:// nam.edu/wp-content/uploads /2015/ 06/VSRT-Team
Based-Care-Principles-Values.pdf (I OM-sponsored inquiry into collaborative or team-based care).
43 A report by the Robert Wood Johnson Foundation describes several private and public models of innovative ways
to use APRNs in team-based care. ROBERT WOOD JOHNSON FOUND., How NURSES ARE SOLVING SOME OF PRIMARY
CARE'S MOST PRESSING CHALLENGES (2012), http:// www .rwjf. org /content/dam/files/rwjf-web
files/Resources/2/ cnf20120810 .pdf.
44 Id. at 31 (citing Pamela Mitchell et al., supra note 42).
45 FTC STAFF POLICY PERSPECTIVES, supra note 4, at 32.
46 See general(v IOM FUTURE OF NURSING REPORT, supra note 10 (especially Summary, 1-15; 99 - 102).
47 Id. at 4.
48 ~ational Governors Association, The Role ofNurse Practitioners in Meeting Increasing Demand for Primary
Care (Dec. 20, 2012), http:/ /www.nga.org / cms /home/nga-center-for-best-practices/center-divisions/page-health-
8

quality of primary care services provided by APRNs, who "may be able to mitigate projected
shortages of primary care services."49
Finally, as noted above, the Bill would require a period and program of transition to
independent prescribing for APRNs who have "less than 4,000 hours oflicensed active practice
as an advanced practice registered nurse. 50 We are not aware of an evidentiary basis for these
particular transition requirements for APRNs who already are licensed and otherwise qualified to
practice. For that reason, we query whether a more streamlined path to independent prescribing
would not provide adequate assurances of patient safety at lower cost to Kansas competition and
consumers; and we recommend that the legislature compare the experience of states that do not
require such transition programs51 with states that do.52 Still, we believe that the main provision
of the Bill, providing a path to independent prescribing by APRN s, has the potential to confer
substantial benefits on Kansas health care consumers.
b. 	Regulatory Oversight of APR.i~ Prescribing by the Board of Healing Arts
Would Raise Additional Competition Concerns
Your letter notes concern about a proposed amendment to the Bill that would assign
regulation of APRN prescribing to the "physician-controlled Kansas Board of Healing Arts
rather than the Kansas Board of Nursing," which now regulates APRN prescribing.53 Such an
amendment would raise concerns about potential biases and conflicts of interest. The IOM has
argued that common restrictions on independent APRN practice and prescribing are not
evidence-based, and that historically entrenched forms of training and care delivery, dated or
e1roneous beliefs about the training or performance of APRN s, and professional bias are factors
in physician opposition to regulatory reform. 54
division/col2-content/list---health-left/list-health-highlight/content-reference-2@/the-role-of-nurse
practitioners.html [hereinafter NGA , Role of Nurse Practitioners].
49 Id. at 11.
50 Supra note 22.
51 See, e.g., N.H. Rev. Stat.§ 326-B:l l(III).
52 See, e.g., W. Va . Code§ 30-7-15b(e)(l) (requiring three years of"collaborative practice").
53 See supra note 1. We note that the 15 members of the Board of Healing Arts comprise 5 medical doctors (M.D.s),
3 osteopathic doctors (D.O.s), 3 chiropractic doctors (D.C.s), 1 podiatric doctor (D.P.M.), and 3 public member s.
K.SA. . §§ 65-2812 - 65-2813. The Board does not appear to include any APRN members. Kansas Bd . of Healing
Arts, About the Board , Members, 	http://www.ksbha.org/aboutboard/boardmembers.shtml (last checked Dec. 10 ,
2019).
54 IOM FUTURE OF NURSING REPORT, supra note 10 , at 107-14; Barbara J. Safriet, Federal Options for Maximizing
the Value ofAdvanced Practice Nurses in Providing Quality, Cost-Effective Health Care, in IOM FUTURE OF
NURSING REPORT , supra note 10, at 451-57 ("I want to be clear that I mean to attribute no malice or ill will to
individual actors in the scope-of-practice battles. The problems have become structural and cultural, and we all
physicians included-pay a huge price for the consequences, measured irI extra real dollars spent on health care, irI
lack of access to competent care, and in the constant antagonism among health care professionals who would be
better served by working cooperatively to provide optimal care.").
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FTC staff recognize Kansas state prerogatives in designing regulatory oversight for
Kansas health care professionals; and we defer to the legislature on how best to incorporate
expert input--including physician input--into its regulatory process. At the same time, we
strongly suggest that it may be problematic to have independent regulatory boards dominated by
medical doctors and doctors of osteopathy serve as regulators of APRN prescribing. As the
Commission has noted in Congressional testimony about occupational regulation more generally:
From a competition standpoint, occupational regulation can be especially
worrisome when regulatory authority is delegated to a board composed of
members of the occupation it regulates. The risk is that the board will make
regulatory decisions that serve the private economic interests of its members and
not the policies of the state. These private interests may lead to the adoption and
application of occupational restrictions that discourage new entrants, deter
competition among licensees and from providers in related fields, and suppress
innovative products or services that could challenge the status quo. 55
In North Carolina State Board of Dental Examiners v. FTC, similar concerns about
professional bias and its effects on competition helped explain limits to a state board's ability to
insulate itself against allegations of anticompetitive conduct. 56 There, the dentist-dominated
board had sought to exclude non-dentists from providing basic teeth-whitening services using
non-prescription materials. In that case, the U.S. Supreme Court observed that, "established
ethical standards may blend with private anticompetitive motives in a way difficult even for
market participants to discern. Dual allegiances are not always apparent to an actor .... "57
IV. 	CONCLUSION
FTC staff support policy reforms, such as those in H.B. 2412, to remove undue barriers to
the provision of health care services by qualified and licensed APRNs. We strongly believe that
independent APRN prescribing authority can help improve access to care, contain costs, and
expand innovation in health care delivery.
55 Prepared Statement of the Fed. Trade Comm'n on License to Compete: Occupational Licensing and the State
Action Doctrine Before the S. Comm. on the Judiciary, 114 th Cong. (Feb. 2, 2016); see also Prepared Statement of
the Fed. Trade Comm'n on Competition and the Potential Costs and Benefits of Professional Licensure Before the
H. Comm. on Small Bus., 113th Cong. (2014).
56 N.C. State Bd. of Dental Exam'rs v. FTC, 135 S. Ct. 1101 (2015). In that case, the Court clarified the conditions
under which an independent regulatory board could (or could not) raise a defense to federal antitrust allegations
based on the "State Action Doctrine," and did not address the policy merits of North Carolina's statutes governing
that regulatory board. However the Court's competition concerns about one group of professionals excluding
another based on financial incentives are directly analogous to concerns about empowering physicians to bar or
regulate APRN prescribing.
57 Id. at 1111.
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Enclosure
Bilal Sayyed, Director
Office of Policy Planning
Andrew Sweeting, Director
Bureau of Economics
Ian Conner, Director
Bureau of Competition
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