FTC Staff Comment to the Department of Veterans Affairs: Proposed Rule Regarding Advanced Practice Registered Nurses

Office of Policy Planning
Bureau of Competition
Bureau of Economics
July 25, 2016
Director, Regulations Management (02REG)
Department of Veterans Affairs
810 Vermont Avenue, NW
Room 1068
Washington, DC 20420
Re: 	RIN 2900–AP44-Advanced Practice Registered Nurses
The staffs of the Federal Trade Commission Office of Policy Planning, Bureau of
Economics, and Bureau of Competition (“FTC staff”) 1 appreciate the opportunity to respond to
your request for comments on the Department of Veterans Affairs’ (the “Department” or the
“VA”) proposed rule, “Advanced Practice Registered Nurses” (“Proposed Rule”).2 For reasons
explained below, FTC staff support the Department’s initiative to maximize its staff capabilities.
Our prior examination of the impact of nursing regulations on health care competition reinforce
the VA’s view that the Proposed Rule would:
• 	increase the Veterans Health Administration’s (“VHA”) ability to provide timely,
efficient, and effective primary care services, among others; and
• 	increase veteran access to needed health care, particularly in medically underserved
areas, as well as decrease the amount of time veterans spend waiting for patient
appointments.3
These changes in VA policy may also benefit health care consumers in private markets.
FTC staff’s 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 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
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 such as the VHA, and both public and
private third-party payors. The Policy Paper observes, in particular, that state-mandated
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

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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.5
Expert bodies, including the Institute of Medicine (“IOM”),6 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.”7 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 VA to apply a similar analytical framework. Granting full practice
authority to VA-employed APRNs would benefit both the VA and the patients it serves,
consistent with the goals expressed in the Proposed Rule. APRNs should be able, for example, to
evaluate VA 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. Furthermore, the VA’s actions and leadership on this issue may send an important
signal (and generate useful data) regarding the likely benefits of full practice authority for
APRNs. This, in turn, could influence broader policy considerations, as well as provider market
entry outside the VA system, both of which may help to bring the benefits of increased health
care competition to an even larger number of U.S. citizens and permanent residents.
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.8 Competition is at the core of
America’s economy,9 and vigorous competition among sellers in an open marketplace gives
consumers the benefits of lower prices, higher quality products and services, and greater
innovation. 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,10 research,11 and advocacy.12 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.13
Competition advocacy by the FTC and its staff typically focuses on the impact of
regulation on competition in the private sector and, ultimately, on consumers.14 Therefore, the
FTC has an interest in the Proposed Rule to the extent that the VA’s actions may encourage entry
into health care service provider markets, broaden the availability of health care services outside
the VHA system, as well as within it, and yield information about new models of health care
delivery. We believe our experience with competition and professional regulations in the private
sector may inform and support the VA’s endeavor.

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II. 	The Proposed Rule
The Proposed Rule would permit the VA to grant “full practice authority” to the four
main categories of APRNs—Certified Nurse Practitioners (“CNPs”), Clinical Nurse Specialists
(“CNSs”), Certified Nurse Midwives (“CNMs”), and Certified Registered Nurse Anesthetists
(“CRNAs”) —provided certain background conditions are met.15 Those background conditions
include, among others, verification of an APRN’s credentials, including licensure under the laws
of at least one state, and determination that the APRN has demonstrated the knowledge and skills
necessary to providing the health care services that the VA requires.16 “Full practice authority” is
defined as the authority to provide services required by the VA, including services enumerated in
the proposed rule, “without the clinical oversight of a physician, regardless of State or local law
restrictions, when that APRN is working within the scope of their [sic] VA employment.”17 As
the Department notes, CNPs—the main category of primary care APRNs—already had such full
practice authority under the laws of 21 states, plus the District of Columbia, as of March 7,
2016.18 West Virginia also provided a path to independent APRN practice when it amended its
nurse licensing statute on March 29, 2016.19
The Proposed Rule requires that VA-employed APRNs continue to meet established,
national standards for APRN education, training, licensure, and certification.20 The scope of
practice of VA-employed APRNs would also be subject to any additional limits or conditions the
VA itself might impose. Hence, as we read the Proposed Rule, the Department is not seeking to
expand the scope or range of health care services that APRNs may provide or the indications that
APRNs may treat. Rather, the Department appears to propose standardizing its APRN
qualifications and practice guidelines and streamlining its ability to deploy its health care
providers across state lines.21
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 APRNs 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—including VA patients—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. Lifting such constraints for a large health care system, such as the VA,
would at least permit that system’s health care consumers to recognize the benefits that more

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robust utilization of APRNs could provide. The Policy Paper analyzes three basic issues of
particular relevance to the Proposed Rule.
First, regulatory constraints on APRN practice limit the ability of APRNs 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 6,100 primary care health professional shortage areas (“HPSAs”) across the
United States.26
The delivery of care in rural areas, and access to care for rural veterans who are VHA
patients, may present particular challenges to the VA. As the Department itself notes in its 2015
report on rural health,
[t]he disparity between health services available in urban hubs versus rural areas
is impossible to ignore. For some, the gap is physical: long travel distances with
limited public transit options mean more missed appointments. For others, unseen
barriers block access to quality health care: too few specialists and uncertainty
about enrollment eligibility keeps Veterans from services. Yet others struggle
with social well-being in rural communities, where housing, educational and
employment options may be limited.27
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.28 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.”29
FTC staff note, in particular, the VA’s extensive use of telehealth programs to provide
care for rural veterans.30 Given those programs, the Proposed Rule may give the VA more
staffing flexibility in patient monitoring and case management for VHA patients who do not
have easy in-person access to VA medical centers.31 State-based licensing restrictions may erect
barriers to the flow of health care information to and from qualified practitioners across state
lines. At present, those barriers may vary according to the particulars of each state’s licensure,
scope-of-practice, health information, and telehealth regulations, for reasons unrelated to health
and safety standards.32 For example, due to variation in state regulations, an APRN’s monitoring
of chronic care patients by telephone or other electronic means might be permissible or
impermissible according to the channel of communication, the location of the patient, the
location of the APRN, or the physical distance between the APRN and a particular, contractually
established, supervising physician. As observed in a 2004 joint report by the FTC and the
Department of Justice (“DOJ”), “the practice of telemedicine has ... crystallized tensions between
the states’ role in ensuring patients have access to quality care and the anticompetitive effects of
protecting in-state . . . [practitioners] from out-of-state competition.”33 By permitting VA APRNs
to deliver additional care where VHA patients are located, the Proposed Rule may reduce some

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of the barriers to rural health care access that are a byproduct of state-by-state regulatory
variation.
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.34 Mandatory supervision and “collaborative
practice” requirements may, however, increase the cost of those services.35 In contrast, when
these types of supervisory requirements are relaxed, 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—and VHA patients in
particular—may gain access to services that otherwise would be unavailable.36 Even in well-
served areas, a supply expansion tends to lower prices and drive down health care costs.37 Hence,
the VA may be better able to meet the needs of patients in underserved areas, and to serve all of
its patients more effectively and efficiently.
Third, rigid supervision (and collaborative agreement) requirements may impede, rather
than foster, development of effective models of health care delivery—including team-based
care38—both within and outside the VHA system. In the private sector, 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 APRNs to practice
independently.39 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.40
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.41 Innovation in team-based care should be just as important to public health
care providers like the VHA42 as it is to providers in the private sector. The Proposed Rule would
expand the VA’s options 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.”43 This last point may have special significance to
the VA, which has facilities and patient-care obligations that extend across the United States and
comprise various practice settings.44 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 VA’s proposed exercise of federal preemption to override state nursing
licensure laws that conflict with the grant of full practice authority to VA APRNs, acting within
the scope of their VA employment, may therefore facilitate the Department’s implementation of
innovative strategies across different facilities and practice settings around the country.45

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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, including institutional providers like the VHA. 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 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.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 quality of primary care services provided by APRNs, who “may be able to
mitigate projected shortages of primary care services.”49 A recent report by the Congress-
established Commission on Care50 notes, in particular, that, “policies that fail to optimize the
talents and efficiency of all health professionals, detract from the effectiveness of VHA health
care.”51 One of the Commission’s central recommendations to improve clinical operations is that
the Department “[d]evelop policy to allow full practice authority for APRNs.”52
b. 	Restrictions Placed on Specialist APRNs Raise Similar Concerns
The VA has highlighted two categories of specialist APRNs in the Proposed Rule. First,
the Proposed Rule would permit full practice authority for VA-employed CNMs.53 Although the
Department does not presently employ CNMs, it “would include the services of a CNM in this
rulemaking in anticipation that VA would hire CNMs at a future date to improve access to health
care for the increasing number of female veterans.”54 Second, the Proposed Rule would grant full
practice authority to CRNAs.55 In particular, given the diversity of stakeholder views on the
topic, the Department has asked for comments on the question of full practice authority for
CRNAs.56
Supervision requirements for CNMs and CRNAs raise competition concerns similar to
those raised by the imposition of supervision requirements on primary care APRNs or CNPs.57
FTC staff recognize that certain licensure requirements and scope-of-practice restrictions can
serve to protect patients.58 This is true for all APRNs 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.59 We note,
however, the IOM’s concern that excessive restrictions may impede access to specialized care
that CNMs and CRNAs are qualified to provide, based on their training and experience.60 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 of APRNs.”61 Because particular regulatory restrictions on CNMs and
CRNAs 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 makers apply the same competition-oriented framework and considerations to all
APRN policies, including those regarding specialist APRNs.62

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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.”63 Yet
specialist physicians such as obstetricians/gynecologists (“OB/GYNs”) and anesthesiologists—
and not just primary care doctors—may be in short supply,64 particularly in rural areas.65 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.66 For
example, it has been observed that the supply of OB/GYNs decreases steadily as practice locales
become more rural.67 Correspondingly, many CRNAs provide basic anesthesia services in rural
counties where there are no anesthesiologists.68
FTC staff urge the VA to consider whether CRNAs 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 Future of Nursing Report observes that CRNAs
administer more than 65 percent of all anesthetics to U.S. patients and that they “[a]dminister
anesthesia and provide related care before and after surgical, therapeutic, diagnostic, and
obstetrical procedures, as well as pain management.”69 Based on the safety literature, the IOM
states: “evidence shows that CRNAs provide high-quality care . . . [while] there is no evidence of
patient harm from their practice.”70 Similarly, the U.S. Department of Health and Human
Services has, on multiple occasions relating to Medicare and Medicaid rules for the provision of
hospital anesthesia services, reviewed the available literature on the quality of anesthesia
services, and has not found risks that would warrant further restrictions on CRNA practice.71
Similar evidence supports expanded scope of practice for CNMs, which we urge the VA
to consider. The IOM has also observed that CNMs, working within their scope of practice,
provide high-quality care—noting, for example, 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.”72 The American Congress of Obstetricians and Gynecologists “supports the
full scope of practice for CNMs.”73 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.”74 Instead of recommending
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”75—
an approach that FTC staff believe would be consistent with the procompetitive principles
outlined above.
IV. 	CONCLUSION
FTC staff support the VA’s efforts to grant full practice authority to APRNs, by
removing the remaining state-law-based supervision restrictions on APRN scope of practice for
APRNs within the VHA system. We strongly believe that full APRN practice authority can
benefit the VA’s patients and the institution itself, by improving access to care, containing costs,
and expanding innovation in health care delivery. To the extent that the VA’s actions would spur
additional competition among health care providers and generate additional data in support of

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safe APRN practice, we believe those benefits could spill over into the private health care market
as well. Accordingly, we encourage the VA to continue its efforts, as embodied in the Proposed
Rule, to improve access to care for VHA patients, and to provide that care effectively and
efficiently. Removing unnecessary and burdensome requirements on APRNs, consistent with
patient health and safety, may help the VA achieve these important goals.
Respectfully submitted,
Tara Isa Koslov, Acting Director
Office of Policy Planning
Ginger Jin, Director
Bureau of Economics
Deborah Feinstein, Director
Bureau of Competition
Enclosure
1 This letter expresses the views of staff in the Federal Trade Commission’s Office of Policy Planning, Bureau of
Economics, and Bureau of Competition. The letter does not necessarily represent the views of the Federal Trade
Commission or of any individual Commissioner. The Commission, however, has voted to authorize us to submit
these comments.
2 Advanced Practice Registered Nurses, 81 Fed. Reg. 33,155 (proposed May 25, 2016) (to be codified at 38 C.F.R.
part 17).
3 Id. at 33,155.
4 FED. T RADE COMM ’N STAFF, P OLICY P ERSPECTIVES: COMPETITION AND THE REGULATION OF ADVANCED P RACTICE
N URSES (2014), https://www.ftc.gov/system/files/documents/reports/policy-perspectives-competition-regulation-
advanced-practice-nurses/140307aprnpolicypaper.pdf [hereinafter FTC STAFF P OLICY P APER ]. As noted in the FTC
STAFF P OLICY P APER , “a state may impose certain ‘collaborative practice’ requirements on APRNs, 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 11.
5 Id. at 37.
6 The IOM—established in 1970 as the health arm of the National Academy of Sciences—provides expert advice to
policy makers and the public.

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7 FTC STAFF P OLICY P APER , supra note 4, at 2 n.6 and accompanying text (citing I NST. OF M ED., N AT’ L ACAD. OF
SCIENCES, T HE FUTURE OF N URSING: LEADING CHANGE , ADVANCING H EALTH 98–99 (2011) [hereinafter IOM
FUTURE OF N URSING REPORT]).
8 Federal Trade Commission Act, 15 U.S.C. § 45.
9 Standard Oil Co. v. Fed. Trade Comm’n, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy
long has been faith in the value of competition.”).
10 See Competition in the Health Care Marketplace, FED. T RADE COMM ’N, https://www.ftc.gov/tips-
advice/competition-guidance/industry-guidance/health-care.
11 See FED. T RADE COMM ’N & U.S. D EP’T OF J USTICE , I MPROVING H EALTH C ARE : A D OSE OF C OMPETITION (2004),
https://www.ftc.gov/sites/default/files/documents/reports/improving-health-care-dose-competition-report-federal-
trade-commission-and-department-justice/040723healthcarerpt.pdf [hereinafter FTC & DOJ, IMPROVING H EALTH
C ARE ].
12 FTC and staff advocacy may consist of letters or comments addressing specific policy issues, Commission or staff
testimony before legislative or regulatory bodies, amicus briefs, or reports. See, e.g., Letter from FTC Staff to the
Hon. Timothy G. Burns, Representative, La. House of Representatives (May 1, 2009),
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-louisiana-house-
representatives-concerning-louisiana-house-bill-687-practice/v090009louisianadentistry.pdf (regarding proposed
restrictions on mobile dentistry); Joint Statement from the FTC and DOJ to the Ill. Task Force on Health Planning
Reform (Sept. 15, 2008), https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-and-
department-justice-written-testimony-illinois-task-force-health-planning-reform-concerning/v080018illconlaws.pdf
(concerning Illinois certificate of need laws); Brief of Amicus Curiae Federal Trade Commission in Support of
Appellants and Urging Reversal, Ciprofloxacin Hydrochloride Antitrust Litig., 544 F.3d 1323 (Fed. Cir. 2008) (No.
2008-1097), https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-amicus-curiae-brief-re-
ciprofloxacin-hydrochloride-antitrust-litigation-concerning-drug-patent/080129cipro.pdf; FTC & DOJ, IMPROVING
H EALTH C ARE , supra note 11.
13 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.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-senate-west-virginia-
concerning-competitive-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.horne-regarding-house-bill-3508-3078-advanced-practice-registered-nurse-regulations/151103scaprn.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/150422missourihouse.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-concerning-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-concerning-likely-competitive-impact-connecticut-house-
bill/130319aprnconroy.pdf (APRNs); Prepared Statement from FTC Staff to Subcommittee A of the Joint
Committee on Health of the State of West Virginia Legislature (Sept. 10–12, 2012),
https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-testimony-subcommittee-wv-
legislature-laws-governing-scope-practice-advanced-practice/120907wvatestimony.pdf (APRNs); Letter from FTC
Staff to Thomas P. Willmott & Patrick C. Williams, Representatives, La. House of Representatives (Apr. 20, 2012),
https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-louisiana-house-
representatives-likely-competitive-impact-louisiana-house-bill-951/120425louisianastaffcomment.pdf (APRNs in

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medically underserved areas); 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); FTC Staff Comment Before the Council of the District of Columbia Concerning Proposed
Bill 6-317 to Create Specific Licensing Requirements for Expanded Role Nurses (Nov. 1985) (nurse midwives,
nurse anesthetists, and nurse practitioners).
14 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/public-statements/2016/02/prepared-statement-federal-trade-commission-license-compete-
occupational; Barriers to Entrepreneurship: Examining the Anti-Trust Implications of Occupational Licensing:
Hearing Before the H. Comm. on Small Bus., 113th Cong. 1–3 (2014) (statement of Fed. Trade Comm’n on
Competition and the Potential Costs and Benefits of Professional Licensure), https://www.ftc.gov/public-
statements/2014/07/prepared-statement-federal-trade-commission-competition-potential-costs.
15 81 Fed. Reg. at 33156–58, 33,160 (to be codified at 38 C.F.R. § 17.415(c)).
16 81 Fed. Reg. at 33156–57, 33160 (to be codified at 38 C.F.R. § 17.415(a) & (c)).
17 Id. (to be codified at § 17.415(b)).
18 81 Fed. Reg. at 33,155. According to the Department, at the same time, CRNAs had full practice authority in 17
states. Id.
19 W.V. House Bill 4334, amending Section 30 of the W.V. Code, was approved by the Governor of West Virginia
on March 29, 2016,
http://www.legis.state.wv.us/Bill_Status/bills_history.cfm?INPUT=4334&year=2016&sessiontype=RS.
20 See notes 16–17 supra.
21 By “standardize,” we do not suggest that the VA plans, or should plan, to implement any particular model of
team-based care or to deploy all VA APRNs in the same way. Rather, the VA would be able to employ standard
criteria for determining the best uses of its APRNs to meet the needs of its 8.67 million patients across its more than
1,700 diverse care sites. Veterans Health Administration, U.S. D EP’T OF V ETERANS A FFAIRS,
http://www.va.gov/health/ (last visited June 30, 2016). Regulations, guidelines, and the ability to follow traveling
patients would not have to vary according to arbitrary differences in state supervision requirements in the 28 states
that now require some particular form of physician supervision or “collaborative practice.”
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 C AROLYN COX & SUSAN F OSTER , FED.
T RADE COMM ’N, B UREAU OF E CONOMICS, T HE COSTS AND B ENEFITS OF O CCUPATIONAL REGULATION 5–6 (1990),
http://www.ftc.govibe/consumerbehavior/docs/reports/CoxFoster90.pdf.
23 See notes 18–19 supra. 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 P OLICY P APER , supra note 4, at 20.
25 Id. at 21; IOM FUTURE OF N URSING REPORT, supra note 7, 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, 2010).”).

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26 U.S. D EP’T H EALTH & H UMAN SERVS., H EALTH RESOURCE & SERVS. ADMIN., Shortage Designation: Health
Professional Shortage Areas & Medically Underserved Areas/Populations, http://www.hrsa.gov/shortage/ (last
visited June 16, 2016).
27 U.S. D EP’T V ETERANS A FFAIRS, O FFICE OF RURAL H EALTH , T HRIVE 2015: O FFICE OF RURAL H EALTH ANNUAL
REPORT 3 (2015) [hereinafter O FFICE OF RURAL H EALTH ANNUAL REPORT].
28 See, e.g., IOM FUTURE OF N URSING REPORT, supra note 7, at 27–28; N AT ’ L G OVERNORS ASS ’N, NGA P APER :
T HE ROLE OF N URSE PRACTITIONERS IN M EETING I NCREASING D EMAND FOR P RIMARY C ARE 11 (2012),
http://www.nga.org/files/live/sites/NGA/files/pdf/1212NursePractitionersPaper.pdf [hereinafter N AT’ L G OVERNORS
ASS ’N, NGA P APER ]. 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]
29 FTC STAFF P OLICY P APER , supra note 4, at 25.
30 VA Reaching Out to Rural Veterans with Telehealth, U.S. D EP’T V ETERANS A FFAIRS
http://www.va.gov/health/NewsFeatures/20110816a.asp (last visited June 21, 2016); O FFICE OF RURAL H EALTH
ANNUAL REPORT, supra note 27, at 3, 10.
31 Information on the VA’s telehealth resources and programs can be found at http://www.telehealth.va.gov/.
32 See, e.g., I NST. OF M ED., N AT’ L ACAD. OF SCIENCES, T HE ROLE OF T ELEHEALTH IN AN E VOLVING H EALTH C ARE
E NVIRONMENT: W ORKSHOP S UMMARY 20–21 (2012); Daniel J. Gilman, Physician Licensure and Telemedicine:
Some Competitive Issues Raised by the Prospect of Practicing Globally While Regulating Locally, 14 J. H EALTH
C ARE L. & P OL’ Y 87, 89 (2011) (“[T]telemedicine promises in various ways to reduce the costs and extend the reach
of many health care services, but the advantages of remote and networked expertise may be poorly accommodated
by licensing schemes that were developed to regulate local medical practices - practices historically dominated by
face-to-face encounters between a [practitioner] and her patient.”)
33 FTC & DOJ, I MPROVING H EALTH C ARE , supra note 11, ch. 2, at 32.
34 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 PAs in the delivery of primary
care.” CHRISTINE E. E IBNER ET AL., RAND H EALTH REPORT SUBMITTED TO THE COMMONWEALTH OF
M ASSACHUSETTS, CONTROLLING H EALTH C ARE SPENDING IN M ASSACHUSETTS : A N A NALYSIS OF O PTIONS 103–04
(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) [hereinafter RAND H EALTH REPORT].
35 FTC STAFF P OLICY P APER , supra note 4, at 27–31.
36 “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 P OLICY
P APER , supra note 4, at 20 (citing, e.g., IOM FUTURE OF N URSING REPORT, supra note 7, at 98–103, 157–61, annex
3-1 (2011); RAND H EALTH R EPORT, supra note 34, at 99; NAT ’ L G OVERNORS ASS’N, NGA P APER , supra note 28.
37 The National Governors Association recognized the impact of this supply expansion in its primary care paper,
supra note 28.
38 FTC STAFF P OLICY P APER , supra note 4, at 34.
39 Regarding diverse practice settings and collaboration, see IOM FUTURE OF N URSING REPORT, supra note 7, at 23,
58–59, 65–67, 72–76; see generally Pamela Mitchell et al., Core Principles & Values of Effective Team-Based
Health Care (Institute of Medicine, Discussion Paper, 2012), http://nam.edu/wp-content/uploads/2015/06/VSRT-
Team-Based-Care-Principles-Values.pdf (IOM-sponsored inquiry into collaborative or team-based care).
40 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 J OHNSON FOUND., HOW N URSES ARE SOLVING SOME OF PRIMARY

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CARE ’S M OST PRESSING CHALLENGES (2012), http://www.rwjf.org/content/dam/files/rwjf-web-
files/Resources/2/cnf20120810.pdf.
41 FTC STAFF P OLICY P APER , supra note 4, at 31 (citing Pamela Mitchell et al., supra note 39).
42 Staff note, for example, the VA’s focus on team-based care under its Patient Aligned Care Team, or PACT,
program. Team Based Care – PACT, U.S. D EP’ T V ETERANS A FFAIRS,
http://www.va.gov/HEALTH/services/primarycare/pact/team.asp.
43 FTC STAFF P OLICY P APER , supra note 4, at 32.
44 Where do I get the care I need?, U.S. D EP’T V ETERANS A FFAIRS, http://www.va.gov/health/FindCare.asp.
45 81 Fed. Reg. at 33,156.
46 See generally IOM F UTURE OF N URSING REPORT, supra note 7 (especially Summary, 1-15; 99–102).
47 Id. at 4.
48 N AT ’ L G OVERNORS ASS’N, NGA P APER , supra note 28.
49 Id. at 11.
50 The Commission was established under the Veterans Access, Choice, and Accountability Act of 2014, Pub. L. No.
113–146, § 201(a)(1).
51 COMMISSION ON C ARE , F INAL REPORT OF THE COMMISSION ON C ARE 5 (2016),
https://commissiononcare.sites.usa.gov/files/2016/07/Commission-on-Care_Final-Report_063016_FOR-WEB.pdf.
52 Id. at 39.
53 81 Fed. Reg. at 33,156–57.
54 Id.
55 Id. (to be codified at § 17.415(d)(1)(ii)).
56 Id.
57 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 N URSING REPORT , supra note 7, 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
undergraduate nursing education and practice experience. IOM FUTURE OF N URSING REPORT, supra note 7, at 23,
26.
58 FTC STAFF P OLICY P APER , supra note 4, at text accompanying notes 51–55.
59 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-sb1662.pdf.
60 IOM FUTURE OF N URSING R EPORT, supra note 7, at 96.
61 Id. at 98 (emphasis added).
62 See, e.g., Letter from FTC Staff to Kay Khan, Representative, Mass. House of Representatives, supra note 13
(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 of CRNAs); 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).
63 IOM FUTURE OF N URSING R EPORT, supra note 7, at 450.
64 ASS ’N OF AM . M ED. COLLS., P HYSICIAN SHORTAGES TO W ORSEN W ITHOUT I NCREASES IN RESIDENCY T RAINING
(n.d.), https://www.aamc.org/download/150584/data/physician_shortages_factsheet.pdf; B UREAU OF H EALTH
P ROFESSIONS, H EALTH RESOURCES & SERVS. ADMIN., T HE PHYSICIAN W ORKFORCE : PROJECTIONS AND RESEARCH

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INTO C URRENT I SSUES A FFECTING SUPPLY AND D EMAND 70–72, exs. 51–52 (2008),
http://bhpr.hrsa.gov/healthworkforce/reports/physwfissues.pdf [hereinafter HRSA P HYSICIAN W ORKFORCE REPORT]
(HRSA’s most recent workforce report on physician supply and demand, projecting increased shortages of both
primary care physicians and specialists).
65 See ASS’ N OF AM . M ED. COLLS., supra note 64 (noting impact of physician shortfalls to be “most severe” in rural
and other underserved areas); see also HRSA P HYSICIAN W ORKFORCE REPORT, supra note 64, 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 N URSING REPORT, supra note 7,
at 106–07; M ICHAEL M EIT ET AL., RURAL H EALTH REFORM P OLICY RESEARCH CENTER , T HE 2014 U PDATE OF THE
RURAL–U RBAN C HARTBOOK 56 (2014) [hereinafter M EIT ET AL.].
66 M EIT ET AL., supra note 65, 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, N AT’ L R URAL H EALTH ASS’ N, http://www.ruralhealthweb.org/go/left/about-rural-health (last
visited Jan. 11, 2016).
67 M EIT ET AL., supra note 65, at 56 (finding 16 OB/GYNs per 100,000 persons in central counties of large metro
areas but only 3 OB/GYNs per 100,000 persons in most rural counties).
68 See, e.g., FTC Staff Letter to the Hon. Jeanne Kirkton, Missouri House of Representatives, Concerning Missouri
House Bill 1399 and the Regulation of Certified Registered Nurse Anesthetists, at 3 (March 2012),
http://www.ftc.gov/os/2012/03/120327kirktonmissouriletter.pdf (“Staff notes that CRNA practices
disproportionately serve rural patients, and the Missouri Association of Nurse Anesthetists has testified that CRNAs
are the only licensed providers of anesthesia services in 31 Missouri counties.”); FTC Staff Letter to the Hon. Gary
Odom, Representative, Tennessee House of Representatives, Concerning Tennessee House Bill 1896 and the
Regulation of Providers of Interventional Pain Management Services, at 4 (Sept. 2011),
https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-letter-honorable-gary-odom-
tennessee-house-representatives-concerning-tennessee-house-bill.b.1896-and-regulation-providers-interventional-
pain-management-services/v11001tennesseebill.pdf (CRNAs only licensed providers of anesthesia services in 39
Tennessee counties); cf. Letter from FTC Staff to the Hon. Kay Khan, Representative, Mass. House of
Representatives, supra note 13, at 5 (geographic shortages of anesthesiologists in rural Massachusetts counties).
69 IOM FUTURE OF N URSING REPORT, supra note 7, at 26.
70 Id. at 111 (“A study … found no increase in inpatient mortality or complications in states that opted out of the
CMS requirement that an anesthesiologist or surgeon oversee the administration of anesthesia by a CRNA.”).
71 For example, in 2001, the Centers for Medicaid and Medicare Services concluded that anesthesia services
generally were safe and, in particular, that there was “no need for Federal intervention in State professional practice
laws governing [CRNA] practice. . . . [and] no reason to require a Federal rule … mandating that physicians
supervise the practice of [state-licensed CRNAs].” Dep’t Health & Human Servs. (HHS), Health Care Financing
Administration (HCFA), Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthesia
Services, 42 C.F.R. §§ 416, 482 & 485, Final Rule, 66 Fed. Reg. 4674, 4675 (Jan. 18, 2001); cf. HHS Health Care
Financing Administration (HCFA), Medicare and Medicaid Programs; Hospital Conditions of Participation:
Anesthesia Services, 42 C.F.R. §§ 416, 482 & 485, Final Rule, 66 Fed. Reg. 56,762, 56,762–63 (Nov. 13, 2001)
(repeating observations on safety literature, but noting potential utility of independent study of question whether
safety or quality effects are associated with state regulations permitting independent CRNA practice).
72 IOM FUTURE OF N URSING REPORT, supra note 7, at 57 (citing Marie Hatem et al., Midwife-led Versus Other
Models of Care for Childbearing Women, COCHRANE D ATABASE OF SYSTEMATIC REV. (4):CD004667 (2008); Ellen
D. Hodnett et al., Continuous Support for Women During Childbirth, COCHRANE D ATABASE OF SYSTEMATIC REV.
7(3) (2007)).
73 Am. Cong. of Obstetricians & Gynecologists Comments to the Fed. Trade Comm’n, Apr. 30, 2014.

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74 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).
75 Id.