INTRODUCTION
For more than 100 years, the state regulation of health care professions, commonly referred to as licensure, has set minimum education standards, determined practice domains, and disciplined the egregiously incompetent. However, professional licensure and its policy effects are often overlooked in a turbulent health care environment in which consumer protection policy development focuses largely on hospital quality and managed care.
In each state, myriad licensure statutes, rules, and regulations developed for consumer protection impact the cost, quality, accessibility, and safety of health care. In addition to minimum competence standards, regulation establishes a hierarchy for the distribution of medical labor, determines the flow of resources and access to practitioners, and creates avenues for consumer redress.1
This article has two purposes: to illuminate the professional regulatory challenges faced by states, regulators, and the professions; and to discuss essential transformations in professional regulation and necessary policy recommendations advanced by the Pew Health Professions Commission to strengthen consumer protection.2
OLD CRITICISMS AND NEW CHALLENGES
For decades, state licensure boards have been broadly criticized for eschewing their main responsibility to serve the public interest.3 The most provocative criticism is that the stated purpose of professional licensure — to protect consumers from incompetent practitioners — is often secondary to the tacit purpose of protecting the professions from outside scrutiny.4 In addition, professional licensure has been criticized for supporting practice monopolies that limit access to care, for lacking national uniformity, and for being weak on discipline and evaluating ongoing competence.5 Most recently, licensure has been targeted by the Institute of Medicine as a “lever” that could play a key role in addressing the quality of care problems the nation faces, but a lever that has not yet been activated fully.6
Three challenges facing the health professions serve to exacerbate these shortcomings. First, the market-driven rationalization of health care throughout the 1990s has reshaped the size, demographics and specialty distribution of the workforce through the reorganization of clinical work.7 This reorganization into managed care schemes fuels competition among practitioners and increases demands for practice innovations and accountability.8 However, traditional scope of practice “turfs” often do not allow for the safe and expedient redistribution of health care work.9
Second, although advancing biomedical and technological developments present new knowledge, treatments, and procedures for the professions to master, existing continuing education requirements for relicensure have not been shown to improve professional practice.10, 11 New information and telepractice technologies create “virtual” practice environments that cross state and national boundaries and question the relevance and viability of state-based licensure.
Finally, consumers are playing a more instrumental role in their health care. For example, whether looking for a new doctor due to changing health plan coverage or seeking alternative and complementary practitioners (an increasingly common choice12), consumers need information. However, not all state licensing boards make education and practice information, including disciplinary actions and malpractice settlements pertinent to the consumer’s decision, readily available.
FIVE ESSENTIAL TRANSFORMATIONS FOR IMPROVED PROFESSIONAL REGULATION
At the end of its decade-long tenure in the 1990s, the Pew Health Professions Commission concluded that professional licensure must evolve at the same rate as the economic, political, intellectual, and technological environments in which its licensees work. In its final reports, the Commission envisioned a regulatory approach that combines national standardization, state government oversight, private sector collaboration and initiative, and increasing participation from consumers.
The sections below describe five essential transformations for professional regulation that will not only strengthen its role in protecting the public, but may also have positive effects on health care access and costs.
1. National standards
State political boundaries create important demarcations, but they have resulted in some dramatically different entry-to-practice standards and scopes of practice among the states. For example, nurse practitioners may be allowed to prescribe in one state but not in another, even though their training may be identical.
At the same time, state boundaries are becoming transparent to electronic technologies and to consumers and practitioners who often relocate. A regulatory system that best serves the consumer must have far greater uniformity across state lines in relation to scopes of practice and to complaint and disciplinary mechanisms. Private board specialty certification is an example of a national standard that is recognized across the nation. In other cases, states have taken the lead by agreeing to mutually recognize licenses.
The Pew Commission recommended that a national policy body (one that is not indebted to state politics) empirically determine national standards for scopes of practice. This body would research, develop, and publish national scope of practice and continuing competency standards. Scope of practice development would be based on education and training standards, existing state statutes, and evidence about quality of care, competence, and access to care.
States’ roles in policy development would change under this model. States would provide information about existing statutes and outcomes data from scope of practice demonstration projects to the national policy body. After dissemination of the standards, the states would then focus on implementation and enforcement to best protect the public.
National standards would afford the professions greater mobility across state lines. In addition, consumers could expect the same range of practitioners in each state and the same scope of practice for each profession regardless of location.
2. Scope of practice overlap
Perhaps the most essential component of a profession’s legitimacy rests in its legal authority to diagnose, treat, and perform procedures. Medicine controls the largest, relatively unrestricted, scope of practice, whereas practice acts for other professions are essentially “carved out of” medicine. The resulting hierarchical division of professional practice has created “turf” — often tied to reimbursement — that is hard won and aggressively protected.
In this structure, many professions are limited by practice acts that do not allow their members to practice to the full extent of their competence — resulting in an ongoing disparity between clinical ability and legal authority13 and higher costs due to underutilization.14 Some scopes of practice are expanded for professionals in rural or underserved areas, but if these same practitioners move to another part of the same state, they would have to practice under a more limited practice act. Changes to practice acts — even if incremental — result from political battles in state legislatures in which the use of empirical evidence about training and competence is only marginally consequential.
The Pew Commission predicted that scopes of practice would and should overlap considerably if legislatures based scope of practice act decisions on empirical evidence of the professions’ knowledge and competence, role in access to care, and cost-effectiveness. In contrast to the past 40 years, evidence about these aspects of professional practice must be more rigorously collected and analyzed to diminish the role of politics in writing health care practice acts.
Allowing scopes of practice to reflect demonstrated competence and practice safety rather than tradition or political strength will create opportunities and competition for practices, privileges, and reimbursement. Overlapping scopes of practice will offer the consumer a broader range of practitioners who are competent to prescribe medications or perform procedures, and who will then distinguish themselves by the type and diversity of care they offer.
3. New venues and participants in regulatory policy-making
With the mounting number of legislative proposals, the technical nature of health licensure debates, and the redundancy of the debates across the nation, individual state legislatures may not the best place to make such decisions as whether nurse practitioners should have prescriptive authority, because lobbying and campaign contributions distort the process.
Until the national policy advisory body discussed above can be established, the Pew Commission recommended that states use alternative dispute resolution processes, safe demonstration projects, and comprehensive sunrise and sunset mechanisms to help ensure informed decisions regarding scope of practice authority.
To improve the accountability and credibility of licensing boards, the Pew Commission called for increasing public board membership to at least one-third. Any licensing board charged with consumer protection should have a significant and meaningful consumer voice. Such increased public representation would help diminish the existing perception that licensing boards pursue self-serving rather than public agendas. Moreover, such public participation would acknowledge that consumer perspectives are essential to a profession’s growth and self-management.15
4. Integrating consumer protection mechanisms
Efforts to regulate health care plans, care delivery sites, and health care professionals historically have been independent, both within and between states, resulting in inefficiencies and inadequate pubic protection. The Pew Commission proposed formal mechanisms to oversee and coordinate licensing boards within each state, and to better integrate health professions regulation with other consumer protection efforts, including health care facilities licensing and managed care regulation.
The Commission’s call for oversight and coordination mechanisms would mean at least new lines of reporting responsibility among licensing boards. Intrastate coordination of professional regulation could be accomplished by the creation of an oversight board in each state or it could become the expanded responsibility of an existing agency with oversight authority, such as a department of health. This policy-coordinating body would be responsible for general oversight of that state’s health licensing boards and for ensuring the integration of professional regulation with other state consumer protection efforts.
5. A regulatory focus on quality
Concerns about protecting consumers from incompetent practitioners have been amplified recently by increased attention to poor quality of care and unacceptable rates of medical errors.16, 17 After initial licensure, professional regulatory efforts have little impact on quality of care. As noted above, continuing education requirements for relicensure are inadequate to guarantee ongoing clinical competence — particularly given the rate and breadth of new practice knowledge and treatment innovations.
The Pew Commission maintained that professional regulation must vigorously focus on ensuring quality of care and competence and called on states to require that all health care providers demonstrate their competence at regular intervals throughout their careers. Such a position is in accordance with the Institute of Medicine’s 2003 blueprint for improving quality and reducing medical errors, which included a recommendation that all health professions boards require licensed professionals to demonstrate periodically their ability to deliver patient care.18
To require continuing competence of licensees, states must revisit the missions and mandates of their licensing boards to ensure quality of care is not left out of the definition of consumer protection. State agencies and boards must collaborate with the private sector, which has taken the lead on developing quality assurance, competence assessments, and error reduction mechanisms.
PRACTICAL ACTIONS FOR POLICY-MAKERS SEEKING REFORM
These proposed transformations are far-reaching and comprehensive. A century-old regulatory institution, with its web of interconnected state agencies and private organizations, can be slow to change. However, an incremental approach to building the framework for an improved regulatory system is realistic. Four practical actions are discussed below.
Require licensing boards to coordinate policy-making
State policy-makers can use various budgetary and legislative means to coordinate many regulatory tasks, including scope of practice development, board member training, consumer education and form development, information technology and data collection, and board performance measurement among the professions. Some states, such as Colorado, have long histories of coordinated health professions regulation. Others, such as Maine, have explored an intrastate “federation” of licensing boards.19 Still others have tried to coordinate activities and lower costs by consolidating administrative functions. In some cases, licensing boards can spearhead efforts to coordinate regulation and consumer protection, with state legislatures as the enablers. For example, the National Council of State Boards of Nursing has pursued a mutual recognition model of nurse licensure. Since 1998, 20 states have enacted the Nurse Licensure Compact, which allows a nurse to have one license (in the home state) and to practice in other states, subject to each state’s practice act and regulations, thereby facilitating mobility and “telenursing.”20
Increase the number of public members on licensing boards
To improve regulatory accountability, legislators can increase the number of public members during board sunrise and sunset reviews. Although there is no “magic number” of public members, having one-third public members reduces the isolation and tokenism often felt by individual members. Many states now have licensing boards with significant numbers (and in a few cases majorities) of public members.
Utilize a range of evidence when making scope of practice law
To avoid the often political nature of scope of practice decisions, state legislators must insist that any profession advocating an expanded scope (or new practice authority for a newly licensed profession) present evidence to support their position. Such evidence should include educational standards, curriculum content, outcomes or quality of care studies, and disciplinary data from other states.
In some cases, legislators and other expert decision-makers may need to commission specific research studies, or stipulate parameters for submitted research and testimony. The weight of the evidence alone should guide policy development, rather than the often politically and economically motivated protests of other professions.
Require licensing boards to assess multiple continuing competence methods
State legislators must eventually require that all health professionals periodically demonstrate competence throughout their careers. This requirement might be phased in over time, beginning with each professional board submitting a plan that details the multiple methods by which this can be accomplished. This would require boards to collaborate with the private sector to inventory, evaluate, and prioritize the existing means for assuring practice competence. It would also stimulate private sector testing organizations to develop innovative competence measurement tools that are computer and Internet-based, valid and reliable, and cost-effective. In California, podiatrists, upon relicensure, must demonstrate that in the past 10 years they have met at least one of six requirements that attest to ongoing competence.21
CONCLUSION
As efforts to improve quality and patient safety predominate and persevere, governments will continue to enact laws that strengthen public safety to meet a changing practice environment. Given professional licensure’s influence on the cost, quality, and accessibility of health care, it may be one of the best kept secrets in health policy. Redrafting licensure policy could contribute to achieving many of the health policy goals that continue to resound in our system.
An improved regulatory future can be built on the existing strengths of state-based professional regulation. However, many current regulatory weaknesses must be diminished or removed in order to strengthen consumer protection. The changes proposed by the Pew Commission and the four practical actions for policy-makers — policy coordination, public membership on boards, evidence-based decision making, and continuing competence requirements — are still essential and are the first steps that health professions regulation can take in its necessary evolution.
ACKNOWLEDGMENTS
The Pew Health Professions Commission, its Taskforce on Health Care Workforce Regulation, and the work for this paper were supported by a grant from the Pew Charitable Trusts. The authors would like to thank David Swankin and Bruce Douglas for their helpful guidance and comments. The opinions expressed in this paper reflect those of the authors and do not necessarily reflect those of the Pew Charitable Trusts.
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