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The expansion of APRN scope of practice

By Charles I. Artz, Esq.

The Pennsylvania General Assembly is currently debating House Bill 50 (HB 50), which, if enacted, would affect Advanced Practice Registered Nursing (APRN) scope of practice. The House Professional Licensure Committee held public hearings on HB 50 in July and October 1999.

Proponents of HB 50 contend it merely allows APRNs prescriptive authority, which is provided for under current law but has yet to be implemented by the State Boards of Medicine and Nursing through regulation. Opponents of the bill argue it expands the scope of practice to the functional equivalent of independent, unrestricted practice of medicine. This article analyzes the content of HB 50 and the implications of its provisions.

HB 50 Definitions and Terms

HB 50 would amend the Professional Nursing Law (PNL) and the Medical Practice Act (MPA) of 1985 in significant ways. Section 2 of HB 50 would add a new § 3.1 to the PNL allowing an APRN to: “…diagnose and treat illnesses, perform therapeutic and invasive procedures, prescribe, dispense and administer drugs and devices and order and administer anesthetics, pursuant to the rules and regulations established by the [Nursing] Board consistent with the advanced practice registered nurse scope of practice. APRNs may prescribe and administer controlled substances in categories II through V pursuant to Federal Drug Enforcement Agency’s (DEA) rules and regulations in a manner consistent with their scope of practice” (emphasis added).

It is important to note that DEA defers all scope of practice decisions to state licensing authorities. Moreover, controlled substances are scheduled and regulated not only at the federal level, but by state authorities as well. The Department of Health and the State Board of Pharmacy regulate in this area and the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act.

The practice of medicine is defined under the MPA as the “cure of diseases and the preservation of the health of man, including the practice of the healing arts with or without drugs…” The term “healing arts” is defined as “the science and skill of diagnosis and treatment in any manner whatsoever of disease or any ailment of the human body.” The practice of medicine is therefore unrestricted in Pennsylvania.

The current PNL specifically excludes “acts of medical diagnosis or prescription of medical therapeutic or corrective measures” from the scope of nursing practice. The only exception is joint regulations published by the State Boards of Medicine and Nursing, which to date have not yet been issued in final form.

Section 3 of HB 50 also deletes the restriction under the current § 4 of the PNL prohibiting nurses from practicing “dentistry, podiatry, optometry, chiropractic, medicine or surgery.” It replaces the prohibition with the following words: “This act does not limit the right of an individual to practice a health occupation that he or she is otherwise authorized to practice under this act.”

Therefore, HB 50 would have two clear effects: (1) to place the APRN scope of practice on par with the unrestricted practice of medicine and (2) to provide APRNs with extensive prescriptive authority.

HB 50 Would Repeal the Limitation on CRNPs’ Rights to Practice Medicine

Section 4 of HB 50 expressly states: “Section 15 of the Medical Practice Act is repealed.” Section 15 of the MPA establishes the parameters for the practice and regulation of certified registered nurse practitioners in their practice of certain aspects of medicine. Its repeal under HB 50 eviscerates Medical Board supervision and oversight over APRNs, as well as required physician collaboration in an APRN practice.

HB 50’s repeal of the limitation in the PNL prohibiting APRNs from independently practicing medicine or surgery and its repeal of the provisions of § 15 of the MPA, (providing for medical oversight of CRNP practice), obliterates any practical or legal supervision over the unfettered practice of medicine and surgery by APRNs. The law is very clear that where legislative and regulatory language authorizes, but does not circumscribe, a particular practice, the practice is not limited. Likewise, where the language in a statute that authorizes agency regulations has been repealed, the regulations are effectively repealed.

Accordingly, current regulations of both the Nursing Board and the Medical Board setting parameters for CRNP collaborative practice would no longer be enforceable, providing APRNs with unfettered medical discretion subject only to the regulatory authority of an agency composed, not of persons trained and licensed to practice medicine, but of persons trained and licensed to practice nursing.

HB 50 Would Drastically Reduce Medical Educational Requirements

In order to practice medicine, an applicant for a medical license must graduate from a recognized medical school, successfully pass the three-step United States Medical Licensing Examination and complete a minimum of two years of graduate medical training properly accredited. Additional requirements must be met by graduates of foreign medical schools. Also, an applicant for medical licensure in Pennsylvania must complete, at a minimum, 12 total years of elementary/secondary education; four years of college or university training; a minimum of four years of medical school training (for example, graduates of foreign medical schools must complete a total of 32 months and 4000 hours of academic instruction in medical curriculum as well as 72 weeks of approved clinical rotations before graduating from medical school and a minimum of two years of graduate medical training in an accredited hospital (three years for foreign medical school graduates), and most graduate medical training (residency programs) are at least three years in duration.

CRNPs, on the other hand, must be currently licensed registered nurses who may have as little as a two-year associate degree in nursing or two-year diploma nursing program education and have passed the professional nursing examination prepared and administered by the National Council of State Boards of Nursing, plus one additional academic year of training in a “program administered by nursing in an institution of higher education.” Nursing Board records confirm that a substantial percentage of currently certified CRNPs in fact only have a two-year associate degree or a two-year nursing school diploma. No additional examination requirement is imposed upon registered nurses in order to qualify for certification as a CRNP to perform certain acts of medical diagnosis and treatment. HB 50 does not change or increase any educational or training requirement to achieve APRN status. Accordingly, under current law CRNPs are not permitted to practice medicine independent of the ongoing collaboration or supervision of a licensed physician.

HB 50, however, would permit registered nurses (with a minimum of two years of nurse’s training) who have completed a one-year program in advanced practice nursing, and who have passed no additional examination, to practice medicine independent of the regulatory or practical collaborative authority of a physician trained, examined and licensed to practice medicine and surgery in Pennsylvania. An APRN under the circumstances noted would be authorized under HB 50 to “diagnose and treat illnesses, perform therapeutic and invasive procedures, prescribe, dispense and administer drugs [including] controlled substances in categories II through V.”

HB 50 could not more clearly expand the scope of practice of an APRN to the functional equivalent of the unrestricted, independent practice of medicine and surgery. This it would do without incorporating the extensive academic and clinical education and training requirements and examinations requisite to a license to practice medicine and surgery in Pennsylvania.

HB 50 Contains an Unconstitutional Delegation of Legislative Authority by Granting Non-Governmental Bodies the Power to Define Scope of Practice and Standards of Care for Three Categories of Nursing.

HB 50 defines an APRN as a certified registered nurse practitioner, certified registered nurse anesthetist, or certified clinical nurse specialist “in accordance with the scope of practice and standards of care that are defined by national organizations of each specialty area of practice.”

Because the Legislature’s specific intent is to grant authority to national organizations, the inescapable result is that, if the current draft of HB 50 were to become law, certain national nursing organizations, whether they know it or not, will be empowered with legislative authority. The final result would be that the State Board of Nursing would have to follow the mandate of national organizations as opposed to following the mandate of the Pennsylvania Legislature.

If the Legislature makes the basic policy choices, it can confer authority to a governmental agency if adequate standards and restraints are also imposed. In other words, while the Legislature cannot delegate the power to make a law, it can confer authority to an administrative tribunal in connection with the execution of the law. This, however, has not occurred under HB 50 and cannot occur for several reasons.

First, defining scope of practice and standards of care of an APRN are not mere matters of detail, but basic policy choices. Standards of care and scope of practice are essential substantive provisions, and it is the Legislature which must make the basic policy choices. For example, it is the Legislature that defines scope of practice in the Dental Law, not the American Dental Association. Scope of practice and standards of care are fundamental policy decisions that cannot be delegated.

Second, even if defining scope of practice and standards of care were not fundamental policy decisions but were mere matters of detail subject to delegation, national organizations of nursing are certainly not administrative agencies of the Commonwealth of Pennsylvania. They were not created by the Pennsylvania Legislature. They are not representative bodies elected by the citizens of Pennsylvania. They owe no allegiance to Pennsylvania. Furthermore, the Pennsylvania Legislature cannot, now or in the future, control how those organizations define scope of practice and standards of care. Quite simply, national nursing organizations are not constrained by Pennsylvania statutes, Pennsylvania regulations, or Pennsylvania case law nor can safeguards be drafted into a bill by which national organizations must abide.

The current version of HB 50 requires the State Board of Nursing to utilize definitions of scope of practice and standards of care from national organizations over which neither it nor the Pennsylvania Legislature have any control. Those national organizations, with respect to HB 50, have unbridled discretion and can at any time they desire alter how they determine scope of practice and standards of care, which will have the resultant effect of amending Pennsylvania law. The power to amend a statute is as much a legislative function as the power to enact a statute.

In summary, scope of practice and standards of care are fundamental policy decisions that must be made by the Pennsylvania Legislature. National organizations, regardless of their expertise, cannot stand in the shoes and fulfill the obligations of the Pennsylvania Legislature. Inextricably intertwining national nursing organizations’ definitions of scope of practice and standards of care into a Pennsylvania statue is an unconstitutional delegation of legislative authority, which violates Article II, Section 1 of the Pennsylvania Constitution.

To suggest, as organized nursing groups have, that HB 50 would not expand the scope of an APRN’s practice to include the independent practice of medicine and surgery where the bill provides no limitations on practice, and indeed repeals safeguards which are currently in place, is incorrect.

The Commonwealth Court’s words in a case brought by the Pennsylvania Coalition of Nurse Practitioners against the State Boards of Pharmacy, Medicine and Nursing are instructive here. In that case, the CRNP coalition asked the Court to order that CRNPs may execute prescriptions without the signature of a physician as evidence that the CRNP prescribed “in collaboration with and under the direction of a physician,” as required under current law. The Court, in Towers v. State Board of Pharmacy, et al., stated: “The old saying is ‘the devil is in the details.’ We do not ascribe any improper motive to the Petitioners and Nursing/Respondent, but it would be improvident to ignore the fact that any CRNP disposed to ignore the limitation imposed by the regulation would have a carte blanche to do so with virtual impunity.”

Likewise, HB 50 would not provide the limitations which the organized nursing entities insist are there. Indeed, with the repeal of joint regulatory authority between the State Boards of Medicine and Nursing, and the expanded definition of an APRN, coupled with the delegation of authority to set parameters for advanced practice nursing to nursing organizations, without requiring any physician collaboration, supervision or review, provides a virtual carte blanche to APRNs to engage in the independent practice of medicine.

Charles I. Artz, Esq., is a health care attorney in Harrisburg, and serves as general counsel to the Pennsylvania Academy of Family Physicians. The Academy’s public policy position is reflected in this article.

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