FTC Staff Comment to the Ohio House of Representatives Concerning Ohio House Bill 177

UNITED ST ATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bu reau of Competition
Bureau of Economics
January 09, 2020
The Honorable Thomas E. Brinkman, Jr.
Ohio House of Representatives
77 S. High St, 11th Floor
Columbus, OH 43215
Dear Representative Brinkman:
The Federal Trade Commission ("FTC" or "Commission") Office of Policy
Planning appreciates the opportunity to respond to your request for comments on House Bill 177
("H.B. 177" or "the Bill"), a proposal to expand the scope of practice of Advanced Practice
Registered Nurses ("APRNs") in Ohio. 1 In particular, you asked for our input on the Bill's
proposal to "end the mandatory written collaborative agreement requirement."2 For reasons
explained below, we urge the Ohio legislature to adopt that proposal and rescind the
collaborative agreement requirement.
FTC staffs interest in nursing regulation derives from our expertise in health care
competition issues. The enclosed 2014 FTC staff policy paper, Policy Perspectives: Competition
and the Regulation ofAdvanced 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.3 As
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
1 Letter from the Hon. Thomas E. Brinkman, Jr. to Bilal Sayyed, Director, FTC Office of Policy Planning (Oct. 18 ,
2019).
2 I d.
3 FED. TRADE COMM'J\i STAFF, POLICY PERSPECTIVES: 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 cannot practice without
securing the approval of an individual physician, whereas the terms of physician practice are in no way dependent
on APRN input." Id . at 1 1.

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, in particular, that state-mandated supervision of APRN
practice raises competitive concerns, may impede access to care, and may frustrate the
development of innovative and effective models of team-based health care.4
As noted in the Policy Paper, the competitive risks associated with undue APRN
restrictions may be heightened in rural and other medically underserved areas. 5 For that reason,
the legislature may wish to focus not just on average or aggregate benefits that the Bill may
promote for Ohio as a whole, but on health care cost and access problems facing, for example,
the many Ohio counties that have been designated Governor's Certified Shortage Areas. 6
Expert bodies, including the Institute of Medicine ("IOM"),7 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."8 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 Ohio legislature to apply a similar analytical framework. Granting full
practice authority to Ohio APRN s would benefit Ohio health care consumers--patients, first and
foremost, and both public and private third-party payors. APRNs should be able, for example, to
evaluate patients, order diagnostic tests for them, and manage their treatments without physician
involvement or approval, as long as they do so within the limits of their education and training.
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.9 Competition is at the core of
4 Id. at 37.
5 See, e.g., id. at21-25.
6 According to the Ohio Department of Health, 39 entire Ohio counties, and significant parts of 5 more Ohio
counties, have been designated Governor's Certified Shortage Areas. Ohio Dep't Health, Ohio Governor's Certified
Shortage Areas (Oct. 21, 2019), https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/state-office-of-rural
health/resources/sorh rhc gov (last checked Dec. 10, 2019).
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.
8 FTC STAFF POLICY PAPER, supra note 3, at 2 n.6 and accompanying text (citing INST . OF MED.,NAT'LACAD. OF
SCIENCES , THE FUTURE OF NURSING : LEADING CHANGE, ADVANCING HEALTH 98-99 (2011) [hereinafter IOM
FUTURE OF NURSING REPORT]).
9 Federal Trade Commission Act, 15 U.S.C. § 45.
2

America's economy, 10 and vigorous competition among sellers in an open marketplace gives
consumers the benefits of lower 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."11 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, 12 research, 13 and advocacy. 14 In
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. 15
10 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.").
11 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.
12 See Fed. Trade Cornm'n, Competition in the Health Care Marketplace, Cases, https: // www .ftc.gov/tips
advice/competition-guidance/industry-guidance/health-care.
13 See FED. TRADE COMM'N & U.S. DEP'T OF JUSTICE, IMPROVING HEALTH CARE: A DOSE OF COMPETITION (2004),
https://www. ftc. gov/sites/default/files/ documents/reports/improving-health-care-dose-competition-report-federal
trade-commission-and-department-j ustice/040723 heal thcarerpt. 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., 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.govI system/ files/ documents /advocacy documents/joint-statement-federal-trade-commission
antitrust-division-us-department-justice-regarding/v l 70006 ftc-
doj comment on alaska senate bill re state con law .pdf; FTC Staff Comment Before the Dep't of Health &
Human Servs. Regarding the 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-21st-century-cures-act-
interoperability/v190002 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 .ftc. gov/ pub Iic-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, (5th Cir. Dec. 9, 2016) (Case: 16-50017); 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-
competi tion-sale-rx-contact-lenses-ftc-study/0 5 02 l 4contactlensrpt. pd t) .
15 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
concerning-competi tive-impact-wv-senate-bill-516-regulation/ 160212westvirginiacomment. pdf; Letter from FTC
Staff to the Hon. Jenny A. Horne, 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-representative
jenny.home-regarding-house-bill-3 50 8-307 8-advanced-prac tice-registered-nurse-regulations/ 151103 scaprn. 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-representati ves-regarding-competi ti ve/ 15 04 22missourihouse.pdf (regarding collaborative practice
3

II. 	H.B.177
The Bill, as noted in your letter, would strike the Ohio requirement that a written
collaborative agreement is a general precondition of APRN practice for three of the four major
categories of APRN: certified nurse practitioner ("CNP"), certified nurse specialist ("CNS"), and
certified nurse-midwife ("CNM"). 16 For example, the Bill would maintain a CNP's ability to
"provide preventive and primary care services ... consistent with the nurse's education and
certification, and in accordance with rules adopted by the board [of nursing]," but would
eliminate the requirement that she or he do so under a mandatory collaborative agreement. 17
Similarly, the Bill would maintain a CNP's ability to "prescribe drugs and therapeutic devices"
in accordance with Ohio law, but would eliminate the additional requirement of a mandatory
collaborative agreement. 18
The Bill also would maintain the ability of a CNS or a CNM to provide and manage care
"consistent with the nurse's education and in accordance with rules adopted by the board," and to
prescribe drugs and therapeutic devices as provided under Ohio law, but would eliminate the
requirement that she or he do so "in collaboration with one or more physicians or podiatrists."19
In addition, the Bill would provide for the reimbursement of APRNs without such mandatory
collaboration,20 and it would permit schools to depend on licensed APRNs to clear students for
participation in school sports, without such mandatory, formalized collaboration.21
While proposing to remove the requirement of a formal collaboration arrangement, the
Bill would not otherwise alter the substantive licensing requirements for Ohio APRNs, and the
Bill would not alter the scope of practice of CNPs, CNSs, or CNMs, according to their education,
training, or experience, and according to Ohio laws or regulations.
arrangements between physicians and APRNs); Letter from FTC Staff to the Hon. Kay Khan, Representative, Mass.
House ofRepresentatives (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-concerning-supervisory-reguirements-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-concerning-likely-competitive-impact-connecticut-house
bill/130319aprncomoy.pdf (APRNs).
16 See, e.g., OHIO REV. CODE ANN. § 4723.0l(H-J) (definitions in occupational code regarding nurses). Although the
supervision of certified registered nurse anesthetists raises analogous competition concerns, these are not addressed
in the Bill and hence not discussed in these comments).
17 Proposed OHIO REV. CODE ANN.§ 4723.432; see also Proposed OHIO REV. CODE ANN.§ 4723.481 (Rescinding
the requirement that the prescriptive authority of a CNP, CNS, or CNM is limited by the prescriptive authority of a
particular collaborating physician or podiatrist.)
1s Id.
19 Proposed OHIO REV. CODE ANN. § 4723.43(A) (regarding CNMs) and (D) (regarding CNSs).
20 Proposed OHIO REV. CODE ANN.§ 3923.301.
21 Proposed OHIO REV. CODE ANN.§ 3313.539.
4

III. 	LIKELY IMPACT OF THE PROPOSED RULE
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.22 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.
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.23 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.24 As a result, many Americans may face limited access to basic health
care services, particularly in poor or rural areas.25 Due to physician shortages, there are
approximately 6,900 primary care health professional shortage areas ("HPSAs") across the
22 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. ftc. go vibe/ consumerbehavior/docs/reports/CoxF oster90. pdf.
23 See See FTC STAFF POLICY PAPER, supra note 3, 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 VA's "full practice authority," 22 states and the
District of Columbia permit "independent practice" by CRNAs, Nat'l 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'l Council State Bds. Nursing, CRNA Independent Practice Map,
https://www.ncsbn.org/5405 .htm (last visited June 20, 2016).
24 FTC STAFF POLICY PAPER, supra note 3, at 20.
25 Id. at 21; IOM FUTURE OF NURSING REPORT, supra note 8, 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 ofa reliable source of primary care providers (NRHA, 2010).").
5

United States.26 Ohio has many such areas.27 For example, according to the Ohio Department of
Health, 39 entire Ohio counties, and significant parts of five more Ohio counties, have been
designated Governor's Certified Shortage Areas.28 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 Ohio designated
shortage areas. 29
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.30 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."31
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 do.32 But collaborative practice 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.33 In contrast, when collaborative
practice 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
26 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).
27 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).
28 See note 6, supra .
29 Ohio Dep't Health, Governor's Certified Shortage Areas for Rural Health Clinics (Oct. 17, 2019),
https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/primary-care-office/govemor-s-certified-shortage
areas-rural-health-clinics (last checked Dec. 10, 2019).
30 See, e.g.' IOM FUTURE OF NURSING REPORT , supra note 8, at 27-28 ; NAT'L GOVERNORS 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/NGA/files/pd£'l 2 l 2NursePractitionersPaper.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]
31 FTC STAFF POLICY PAPER, supra note 3, at 25.
32 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 TR733 .pdf (describing
conditions for upper and lower bound estimates and projections).
33 FTC STAFF POLICY PERSPECTIVES , supra note 3, at 27-28.
6

benefits of expanding supply are clear: consumers may gain access to services that otherwise
would be unavailable. 34 Even in well-served areas, a supply expansion tends to lower prices and
drive down health care costs.35
Third, "rigid supervision [and collaborative agreement] requirements may impede, rather
than foster, development of effective models of team-based care."36 Health care providers that
employ or contract with 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 APRN s to practice
independently.37 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.38 Moreover, new models of
collaboration are an important area of innovation in health care delivery. Proponents ofteam
based care have recognized the importance of this innovation, given the myriad approaches to
team-based care that may succeed in different practice settings.39 Rigid collaborative practice
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."4°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
34 "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 3, at 20 (citing, e.g., IOM FUTURE OF NURSING REPORT, supra note 8, 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_ TR 733.pdf; NAT'L GOVERNORS
ASS'N, NGA PAPER, supra note 30.
35 The National Governor s Association recognized the impact of this supply expansion in its NGA PRIMARY CARE
PAPER, supra note 34.
36 FTC STAFF POLICY PERSPECTIVES, supra note 3, at 34.
37 Regarding diverse practice settings and collaboration, s ee IOM FUTURE OF NURSING REPORT, supra note 8, 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 (!OM-sponsored inquiry into collaborative or team-based care).
38 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/cnf2012081 0.pdf.
39 Id. at 31 (citing Pamela Mitchell et al., supra note 37).
4 o FTC STAFF POLICY PERSPECTIVES, supra note 3, at 32.
7

substantial benefits to Ohio 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.41 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."42 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.43 The NGA report noted the high
quality of primary care services provided by APRNs, who "may be able to mitigate projected
shortages of primary care services. "44
Importantly, these new models of collaboration represent a fertile area of innovation in
health care delivery. Proponents of team-based care have recognized the virtues of such
innovation, given the myriad approaches to team-based care that may succeed in different
practice settings.45 The Bill would expand the ability of Ohio's providers to innovate and
experiment with models of team-based care, as well as other forms of collaboration and
oversight.
Rigid collaborative practice requirements therefore "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."46 FTC staff have reviewed reports from expert
health agencies as well as the published academic literature, and are unaware of evidence that
practice agreement requirements imposed by state statutes are needed to achieve the benefits of
team-based health care. The elimination of Ohio's formal collaboration requirements may
therefore facilitate the implementation of innovative strategies across different facilities and
practice settings.
The impact of unnecessary APRN regulations raises heightened concern in light of
evidence that independent APRN practice might offer substantial clinical benefits to patients
and, therefore, to health care providers. 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 on the future of nursing ("IOM Future of
41 See generally IOM FUTURE OF NURSING REPORT, supra note 8 (especially Summary, 1-15; 99 - 102).
42 Id. at 4.
43 National Governors Association, The Role of Nurse 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
division/col2-content/1ist---health-left/list-hea1th-highlight/content-reference-2@/the-role-of-nurse
practitioners.html [hereinafter NGA, Role of Nurse Practitioners].
44 Id . at 11.
45 FTC STAFF POLICY PAPER, supra note 3, at 31 (citing Pamela Mitchell et al., supra note 37).
46 FTC STAFF POLICY PAPER, supra note 3, at 32.
8

Nursing Report") identifies a key role for APRNs in improving health care delivery, while
expressing concern about undue restrictions on their prescription authority and scope of
practice.47 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."48 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.49 The NGA report noted the high quality of
primary care services provided by APRNs, who "may be able to mitigate projected shortages of
primary care services."50
b. 	Restrictions Placed on Specialist APRNs Raise Similar Concerns
The Bill would address restrictions on two categories of specialist APRN s, in addition to
CNPs: as noted above, the Bill would remove formal collaboration agreement requirements for
CNSs and CNMs.51 Such requirements for CNSs and CNMs raise competition concerns similar
to those raised by the imposition of supervision requirements on primary care APRN s or CNPs. 52
Here too, FTC staff recognize that certain licensure requirements and scope-of-practice
restrictions can serve to protect patients. 53 This is true for all APRN s and, indeed, for all health
care professionals. In particular, special practice requirements or other restrictions may be
recommended for indications or treatments associated with heightened patient risks. 54 We note,
however, the IOM's concern that excessive restrictions may impede access to specialized care
that CNSs and CNMs are qualified to provide, based on their training and experience. 55 We also
note the IOM's observation that "most states continue to restrict the practice of APRNs beyond
what is warranted by either their education or their training," which "support broader practice by
all types ofAPRNs."56 Because particular regulatory restrictions on CNSs and CNMs may
dampen competition in ways that harm patients, institutional health care providers, and payors
without offering countervailing health and safety benefits-we have recommended that policy
47 See generally IOM FUTURE OF NURSING REPORT, supra note 8 (especially Summary, 1-15; 99-102).
48 Id . at 4.
49 NAT'LGOVERNORS Ass ' N, NGA PAPER, supra note 28.
50 Id. at 11.
51 See notes 19 - 21, and accompanying text.
52 As noted above, there are four types of APRNs: nurse practitioners ("CNPs"); nurse midwives ("CNMs");
certified registered nurse anesthetists ("CRNAs"); and clinical nurse specialists ("CNSs"). Id. at 33,155, 33,160 (to
be codified at§ 17.415(a)); see also IOM FUTURE OF NURSING REPORT, supra note 8, at 23, 26 table 1-1 (types of
APRN practice). All four types of APRN consist of nurse practitioners with graduate nursing degrees, in addition to
w1dergraduate nursing education and practice experience. IOM FUTURE OF NURSING REPORT, supra note 8, at 23 ,
26.
53 FTC STAFF POLICY PAPER, supra note 3, at text accompanying notes 51-55.
54 See, e.g., FTC Staff Comment to the Hon. Heather A. Steans, Illinois State Senate, Concerning Illinois Senate Bill
1662 and the Regulation of Certified Registered Nurse Anesthetists (CRNAs), at 2-3 (April 2013),
http://www.ftc .gov/os/2013/04/130424illinois-sb 1662.pdf.
55 IOM FUTURE OF NURSING REPORT, supra note 8, at 96.
56 Id. at 98 (emphasis added).
9

makers apply the same competition-oriented framework and considerations to all APRN policies,
including those regarding specialist APRN s. 57
Importantly, access problems are not unique to primary care. As the IOM points out,
"[a]ccess to competent care is denied to patients, especially those located in rural, frontier, or
other underserved areas, in the absence of a willing and available 'supervising' physician. " 58 Yet
specialist physicians such as obstetricians/gynecologists ("OB/GYNs")-and not just primary
care doctors-may be in short supply,59 particularly in rural areas. 60 A recent report on rural
health policy notes that physician supply generally decreases as areas become more rural, and
that this is particularly true for certain types of specialists.61 For example, it has been observed
that the supply of OB/GYNs decreases steadily as practice locales become more rural. 62
FTC staff urge you to consider whether CNSs and CNMs can help alleviate the access
problems associated with specialist physician shortages, in a manner consistent with patient
health and safety. For example, the IOM has observed that CNMs, working within their scope of
practice, provide high-quality care-noting that "[t]wo systematic reviews have found that
women given midwifery care are more likely to have shorter labors, spontaneous vaginal births
without hospitalization, less perineal trauma, higher breastfeeding rates, and greater satisfaction
with their births."63 The American Congress of Obstetricians and Gynecologists "supports the
57 See, e.g. , Letter from FTC Staff to Kay Khan, Representative, Mass. House of Representatives, supra note 15
(regarding supervisory requirements for both nurse practitioners and nurse anesthetists); Letter from FTC Staff to
Heather A. Steans, Senator, Ill. State Senate, supra note 55 (concerning the regulation ofCRNAs); Brief of the
Federal Trade Commission as Amicus Curiae on Appeal from United States District Court, Nurse Midwifery
Associates v. Hibbett, 918 F.2d 605 (6th Cir. 1990), appealing 689 F. Supp. 799 (M.D. Tenn. 1988).
58 IOM FUTURE OF NURSING REPORT, supra note 8, at 450.
59 Ass 'N OF AM. MED. COLLS., PHYSICIAN SHORTAGES TO WORSEN WITHOUT INCREASES IN RESIDENCY TRAINING
(n.d.), https://www.aamc.org/download/150584/data/physician shortages factsheet.pdf; BUREAU OF HEALTH
PROFESSIONS, HEALTH RESOURCES & SERVS. ADMIN., THE PHYSICIAN WORKFORCE: PROJECTIONS AND RESEARCH
INTO CURRENT ISSUES AFFECTING SUPPLY AND DEMAND 70-72, exs. 51-52 (2008),
http://bhpr.hrsa.gov/healthworkforce/reports/physwfissues.pdf [hereinafter HRSA PHYSICIAN WORKFORCE REPORT]
(HRSA's most recent workforce report on physician supply and demand, projecting increased shortages of both
primary care physicians and specialists).
60 See Ass'N OF AM. MED. COLLS., supra note 59 (noting impact of physician shortfalls to be "most severe" in rural
and other underserved areas); see also HRSAPHYSICIAN WORKFORCE REPORT, supra note 59, at 8, n. 4 (HRSA's
supply model was designed primarily as a national model and thus did not track geographic differences, but HRSA
nonetheless noted that "[t]he physician workforce is ... unevenly distributed throughout the Nation, with pockets of
severe shortages (primarily in poor, rural and inner-city areas)."); IOM FUTURE OF NURSING REPORT, supra note 8,
at 106-07; MICHAEL MEIT ET AL., RURAL HEALTH REFORM POLICY RESEARCH CENTER, THE 2014 UPDATE OF THE
RURAL-URBAN CHARTBOOK 56 (2014) [hereinafter MEIT ET AL.].
61 MEIT ET AL., supra note 60, at 4. Overall, according to the National Rural Health Association, there are more than
three times as many specialists per 100,000 people practicing in urban areas as in rural areas. What's Different About
Rural Health Care, NAT'L RURAL HEALTH Ass'N, http://www.ruralhealthweb.org/ go /left/about-rural-health (last
visited Jan. 11, 2016).
62 MEIT ET AL., supra note 60, at 56 (finding 16 OB/GYNs per 100,000 persons in central counties oflarge metro
areas but only 3 OB/GYNs per 100,000 persons in most rural counties).
63 IOM FUTURE OF NURSING REPORT, supra note 8, at 57 (citing Marie Hatem et al., Midwife-led Versus Other
Models of Care for Childbearing Women, COCHRANE DATABASE OF SYSTEMATIC REV. (4):CD004667 {2008); Ellen
10

fu ll scope of practice for CNMs."64 Its companion organization, the American College of
Obstetricians and Gynecologists recognizes that CNMs are "independent providers" who, like
OB/GYNs, are "experts in their respective fields of practice."65 Instead ofrecommending
mandatory supervision or formal "collaborative practice" agreements, they suggest that
OB/GYNs and CNMs "may collaborate with each other based on the needs of their patients"66-
an approach that FTC staff believe would be consistent with the procompetitive principles
outlined above.
IV. 	CONCLUSION
FTC staff support policy reforms, such as those in H.B. 177, to remove undue barriers to
the provision of health care services by qualified and licensed APRNs. We strongly believe that
independent APRN practice authority can help improve access to care, contain costs, and expand
innovation in health care delivery.
Bilal Sayyed, Director
Office of Policy Planning
Andrew Sweeting, Director
Bureau of Economics
Ian Conner, Director
Bureau of Competition
Enclosure
D. Hodnett et al., Continuous Support for Women During Childbirth, COCHRANE DATABASE OF SYSTEMATIC REV.
7(3) (2007)).
64 Am. Cong. of Obstetricians & Gynecologists Comments to the Fed. Trade Comm'n, Apr. 30, 2014.
65 Am. Coll. Nurse Midwives & Am. Coll. Obstetricians and Gynecologists, Joint Statement of Practice Relations
Between Obstetricians-Gynecologists and Nurse Midwives/Certified Midwives, Feb. 2011 (Reaffirmed by ACOG
Exec. Bd. July 2014).
66 Jd.
11