By R Carter
SOP (Scope of Practice) laws or regulations AKA Occupational License Laws have become a new tool for restricting services rendered in healthcare over the last couple of decades. The intent of occupational licensing is to ensure that members of a profession maintain a certain standard of quality and expertise, which can benefit consumers.
However, these regulations can also increase barriers to entry — thereby lowering supply, reducing competition and increasing prices — which can harm consumers, as reported by Law360.com.
SOP regulations are particularly relevant in healthcare today because it has become the unseen battleground for healthcare reform. While the majority of Americans look on to state and federal legislators for actions that improve access to healthcare, well-funded interest groups lobby regulatory agencies to pass regulations which favor their areas in healthcare delivery and reimbursement.
Quality of care is clearly in the public interest; yet, the U.S. is experiencing high and rising health care costs and shortages of providers, problems that may be worsened by overly restrictive occupational licensing, particularly in the form of scope-of-practice, or SOP, laws that govern which services can be performed by which health care providers.
In 2010, the FTC issued an administrative complaint against the North Carolina Dental Board, alleging that it had unlawfully restrained trade and competed unfairly. At issue were “cease and desist” letters sent by the dental board to non-dentists who offered teeth whitening services. The Supreme Court upheld the lower courts’ rulings, holding that because the board was dominated by active market participants who had strong private interests to restrain trade and was not actively supervised by the state, it was not immune from federal antitrust lawsuits. The ruling in N.C. Dental Board opened up regulatory boards — particularly those whose members were active in the marketplace — to antitrust scrutiny in many states.
The three most prominent policy makers are the American Medical Association (AMA), The Federation of State Medical Boards (FSMB) and The American Board of Medical Specialist (ABMS). These three form the bulk of influence on healthcare policy and regulation in the US, suggesting that regulatory action is a tactical weapon for affecting changes in healthcare. But since regulatory changes in healthcare occur at a state level by independent boards, Governor’s elected in each state have the greatest influence over healthcare reform through these boards. This explains why board regulations continue to reflect the ideologies of the political group in office at the time and why guidelines and policy offered by these organization are not adopted.
The influence of these three organizations can be seen in the passage of H.R. 6515 which effectively circumvents the Supreme Court ruling in the N.C. Dental Board case. H.R. 6515 eliminates fiscal antitrust damage liability for state licensing boards-including state medical boards- their members, and staff who are acting within their statutory mandate to protect the public. Currently, board members and staff are exposed to personal liability and treble damages for actions taken as part of their service on a board. The lack of protection has had a chilling effect on the willingness of some individuals to serve on boards, causing some board members to resign for fear of personal financial liability.
In the wake of what’s been called a prescription opiate crisis, many states have implemented SOP regulations which limit prescribing to specific groups, for specific amounts and for specific durations. By the end of 2016, seven states had passed legislation limiting opioid prescriptions, and the trend continued in 2017. More than 30 states considered at least 130 bills related to opioid prescribing in 2016 and 2017. According to NCSL’s tracking, 33 states had enacted legislation with some type of limit, guidance or requirement related to opioid prescribing by October 2018 for first time prescriptions, with exclusions and exemptions for chronic non-cancer pain, palliative care and cancer treatment.
The 2016 CDC Prescribing Guidelines for Chronic Pain are being cited as the most egregious example of bad science, biased and ideological policy making to affect healthcare policy in decades, with some labeling it as the greatest attack on civil liberties and due process since the 1960’s civil rights movement. And despite a retraction from the CDC for these errors and opposition of them by organization such as FSMB, they continue to shape SOP regulations across the nation. Proof again that political ideology remains the deciding factor in medical board regulations.
SOP regulations on the treatment of chronic pain with opioids has had a paralyzing impact on the chronic pain community with an estimated 10 million chronic pain patients as of 2019, unable to access healthcare or force tapered – terminated from treatment with opioids. Before the 2016 CDC Guidelines on Chronic Pain Management, it’s been estimated that 90% of the nation’s primary care providers have stopped treating chronic pain conditions and in some states, as many as 50% of those who were pain specialist physicians, closed their clinics or have been forced out of practice due to regulations or fear of being targeted by medical boards or the DEA.
The FSMB, about one year after the 2016 CDC Chronic Pain Guidelines, published their own policy for state medical boards to follow, “Guidelines for the Chronic Use of Opioid Analgesics” in which there were no “one-size-fits-all” limits and no maximum caps set for treating Chronic Non-Cancer Pain. Despite overwhelming criticisms from the healthcare community on the 2016 CDC guidelines and the FSMB more practical approach which keeps the judgement of the physician intact, most state medical boards have continued to created SOP regulations which enforce “one-size-fits-all” limits and maximum caps for treating chronic pain.
In light of such restrictions, the chronic pain community has forwarded the concept of pain management as a human right and while at face value this is a laudable pursuit, it may in fact have the unintended consequences of inviting further government involvement in the physician patient relationship as cited in this study Ethics, Law, and Pain Management as a Patient Right, by the department of Anesthesiology, Texas Tech Healthcare Sciences Center, as they state:
Ethical and legal considerations in pain management typically relate to 2 issues. The first refers to pain management as a human right. The second involves the nature of the patient-physician relationship as it relates to pain management. Although pain physicians often like to think of pain management as a human right, it remains difficult to support this position as a point of law or as a matter of ethics. Medical organizations generally do not define pain management as a specific duty of the physician, apart from the provision of competent medical care. To date, neither law nor ethics creates a duty of care outside of the traditional patient-physician relationship. Absent a universal duty, no universal right exists. Pursuing pain management as a fundamental human right, although laudable, may place the power of the government in the middle of the patient-physician relationship. Despite apparent altruistic motives, attempts to define pain management as a basic human right could have unintended consequences, such as nationalization of medicine to ensure provision of pain management for all patients.
To combat the effects on public access to healthcare, legislators have been expanding and refining the scope of practice for allied healthcare professionals such as Physician Assistants and Advanced Nurse Practitioners. But while legislators act to improve access to healthcare, a study performed by Westat reported that.
Overall, we found that NPs are generally not practicing to the full extent of their education and training, and practice is often constrained by factors beyond (and including) state SOP laws. Many barriers stand in the way of NPs practicing to the top of their licensure, including state and federal regulations and statutes, hospital and facility bylaws that prescribe NP practice scope within institutions, and deep-rooted cultural beliefs. Federal statute, regulated through the granting of administration, dispensing, and prescribing authority by the Drug Enforcement Agency, also prohibits NPs from prescribing some medications for the treatment of opioid addiction that physicians can prescribe. These barriers supersede state regulations that may otherwise permit autonomous prescribing and practice for NPs.
Some have theorized that the declaration of a national opioid crisis is just another step by government at bringing healthcare costs under control by either monopolization (e.g. typically Republicans) or nationalization (e.g., typically Democrats). Since 1970 Healthcare Inflation has outstripped the Consumer Price Index by a factor of 2:1. In the run up to the 2020 presidential election, some Democratic candidates are running on a platform called Medicare for All. While Republican candidates continue supporting regulations which restrict access to healthcare through SOP, removing regulations which protect minorities, i.e. the HHS Moral Conscious Clause and the reduction in Medicare and Medicaid benefits for minority groups, leading to the Republican version of cost control through monopolization. These facts are not lost on healthcare providers which have understood for decades that an increase in the number of providers leads to provider rate increases as providers scramble for a smaller percentage of a patient population. It also explains why most physician leaders support a Republican monopolization model over a Democratic nationalization model.
In the last few years, SOP regulations have provided new tools for the darker side of medicine, with board members attacking competitors with allegations which exceed the mandate of a state medical board. Such board members are all but untouchable given the passage of H.R. 6515. This law combined with the adoptive seizures practices used by Federal Law Enforcement, have financially decimated members of the medical community as an ideological war and a new age of competitive backstabbing play out in a fight for patients in the face of lower reimbursement rates from insurers, Medicare and Medicaid.
It’s no longer a fight for access to quality medical care, it’s a fight for access to any type of medical care or medical care we can afford, with many honorable physicians in the trenches with their patients trying to survive.