Antitrust and the Future of Nursing: Federal Competiton Policy and the Scope of Practice

In 2011, the Institute of Medicine (IOM) released a major report on the nursing profession and its present and potential roles in U.S. health care: The Future of Nursing: Leading Change, Advancing Health. According to the IOM, nurses’ regulatory scope of practice often proves to be narrower than the ideal, socially desirable, or medically prudent scope of practice; and the space between the regulatory standard and the ideal is large enough that it is a substantial health policy problem. To ameliorate the problem the IOM suggests, among other things, that regulatory restrictions on the scope of practice receive attention from the federal antitrust agencies. This paper considers what such antitrust therapy might entail, chiefly by explaining some of what antitrust law and policy have had to say about licensure and scope of practice already. We focus, in particular, on a species of soft antitrust intervention employed by one of the nation’s two competition authorities, the Federal Trade Commission (FTC). Recent years have seen the issuance of a series of competition policy analyses addressing the IOM’s concern about over-strict limits on nurses’ scope of practice. In these, the staffs of the FTC’s Office of Policy Planning, Bureau of Economics, and Bureau of Competition have observed that (1) many geographic areas (or markets) are subject to primary care workforce or manpower shortages, (2) market forces may be slow to clear those shortages for reasons that include, among others, regulatory impediments to competition; (3) such shortages may impinge upon both price and non-price competition between health care service providers; (4) in some places, such shortages may impede patient access to primary care services and may, in the limit, drive the supply of certain services to nil; and (5) certain licensing or scope of practice restrictions on APRNs appear under-rationalized (at best), where they purport to rest upon patient protection concerns that are unsupported either by demonstrated patient harms or empirically grounded assessments of substantial patient risks. Because regulatory restrictions on APRNs’ licensure and scope of practice may come at a substantial competitive cost, FTC staff have recommended that such limits not be more stringent than patient protection requires. In broad strokes, they have asked that state policy makers account for competitive costs when considering scope of practice restrictions, and they have suggested that certain costs should not be imposed on the public absent an evidence-based promise of countervailing consumer protection benefits.The paper synthesizes these various advocacy comments, expands upon their bases in competition law and economics, and describes future research pertinent to the access issues of concern to both the IOM and the FTC.