ANA Response to Pew Commission ReportINTRODUCTION
Following is the text of the American Nurses Association's official response to the Pew Taskforce Report on Healthcare Workforce regulation. The ANA's response was submitted on December 5, 1996. That Pew Taskforce report, Reforming Healthcare Workforce Regulation, had been issued by the Pew Taskforce in late 1995. Formal responses were solicited and will serve as the basis for a revised report to be issued in 1997.
SUMMARY
POINTS
COMMENTS ON THE REPORT'S PRINCIPLES AND VISIONS FOR HEALTH CARE WORKFORCE REGULATION The Pew Health Professions Commission and its Taskforce on Health Care Workforce Regulation (Taskforce) should be commended for focusing national attention and discussion on issues of regulation of health care professions and occupations. Effective regulation of the health care workforce is a key component of protecting the public's health and safety, ensuring the quality of health care services, and providing access to health services for the American people. The Taskforce has offered significant points of analysis and debate over means to achieve and maintain a regulatory system that meets these important goals. In a period of rapid, expansive changes in the delivery, organization and financing of health care, it is not surprising that the system for regulating health professions and occupations undergo careful scrutiny. In many instances, health care institutions, systems and payors seek to reduce costs as quickly and deeply as possible, often as part of a broader effort to maximize profit. At the same time, nurses and other health care professionals, along with many other advocates for safe, quality care, have raised concerns about the effect of many current changes in health care, including the single-focused emphasis on reducing costs, on patient care services. A system that places clear parameters on the use of different health care occupations is likely to be seen by some as unduly restrictive and expensive, as it is seen by others as a key, critical component of protecting the public's health and safety. The Taskforce has correctly pointed to the immense inconsistencies in regulatory mechanisms and terms across state borders and even, within states, across professional boundaries. This is an area where the health professions regulatory system is in need of carefully planned change--to allow for more consistency and predictability and to ensure that consumers and health professionals alike can be aware and informed of the system and how it works. The Taskforce has also accurately pointed to the need for the regulatory system to be more accessible and responsive to consumers. The vision and purpose of the health care workforce regulatory system must remain tightly focused on the public's interest in safe, high-quality, efficient and accessible health care services. The vision and principles of the Taskforce, expressed at pages vii and viii of its report, are generally unassailable. It is in the expression and application of those principles, however, that some caution and discussion are needed. What does the report mean, for instance, in noting that the current regulatory system is "criticized for . . . restricting managerial . . . flexibility" (p. vi)? At a time of dizzying, cost-driven changes in the health care system, are restrictions on managerial and institutional "flexibility" a problem to be overcome, or a safeguard for patient safety and quality of care? What aspects of the current regulatory system impose "unnecessary restrictions"--the structure of regulatory boards, their function, or the substance of state laws enacted by legislative bodies? If it is primarily the latter, what changes in the regulatory system would take these decisions out of the hands of elected policy-makers, and is that even a desirable option? In focusing on current mechanisms for regulating different health professions and occupations, the report fails to take into account a particularly important problem in health care today--the increasing use of unlicensed personnel, particularly those used in the provision of nursing care. In most states, the activities of these personnel are out of the reach of existing professional regulatory mechanisms. How can the public most effectively be protected from institutions' and systems' broadening use of such individuals? Finally, a missing element in the report is how its recommendations and options are to be explored and implemented. Does the Taskforce foresee an organized process of negotiations and discussions among all parties concerned, such as that which led to changes in health professions regulation in the Province of Ontario? If so, how, and under whose auspices, would such a process take place? If not, does the Taskforce envision a series of piecemeal, state-based activities shaped by different forces and players in each state? If this is the case, how will such a process lead to the consistency and predictability that the Taskforce views as so necessary to the health professions regulatory system? The Taskforce has done an admirable job in enunciating its broad vision for a system for state regulation of the health care workforce that is "Standardized where appropriate; Accountable to the public; Flexible to support optimal access to a safe and competent workforce; and Effective and Efficient in protecting and promoting the public's health,. safety and welfare. (p. viii) There is not very much about these general principles with which any responsible organization could argue. Even the report's ten recommendations offer relatively little of controversy. It is in the report's discussion of these recommendations, and particularly in its suggested policy options, that we find some very laudable and supportable proposals standing side-by-side with proposals that provide cause for concern and caution.
RECOMMENDATION ONE: STANDARDIZING REGULATORY TERMS The Taskforce's recommendations and policy options for standardizing regulatory terms to ensure consistency between states and between professions are valuable and timely. The lack of uniformity in the meaning and use of regulatory terms has made it more difficult for consumers, policy-makers and health care professionals themselves to understand the type and extent of regulatory oversight for different professions and occupations. The typical distinctions that have been made between types of regulation have proven confusing and inconsistent. For instance, a common distinction between licensure and state certification (to be further distinguished from private certification) is that the former confers a scope of practice while the latter does not. However, in many instances, state-certified occupations do, by statute or regulation, have a legal scope of practice. One example is in California, where Emergency Medical Technicians (EMTs) are certified by a local agency, while Title 22 of the California Code of Regulations provides a detailed scope of authorized activities, referred to in these regulations as a scope of practice, for each level of EMT certification. Consistency and uniformity in the use of regulatory terms is important in order for consumers to understand the distinctions between different categories of health care professionals and health care workers, as is reserving certain terms for use by either public or private bodies. A patient being cared for by a "certified" patient care technician in a hospital may not be aware that such "certification" has been granted by the employing hospital itself, while the "certification" held by the paramedic who helped provide the patient's pre-hospital treatment provided by the was been granted by a state regulatory board; the certified nurse practitioner directing the patient's care may be certified by both the state and by a private accrediting body after successfully completing a rigorous, standardized examination; and the certified nursing assistant who assists in the patient's care when she is moved to a nursing home is registered by the state after meeting federally mandated requirements. If the patient is subsequently cared for during a visit to a neighboring state, the regulatory status of some of these practitioners may be completely different and, at least where state regulatory terms are concerned, go by a completely different nomenclature. ANA does not at this time support any one particular model for uniform regulatory language. We believe that a process to achieve such uniformity is needed, and that it should involve affected health professions, regulators and policy-makers not just in each state, but across state boundaries, in order to achieve consistency between both professions and states. This undertaking itself represents no small feat, and it is our hope that the Pew Center for the Health Professions will devote some of its resources to achieving it. RECOMMENDATION TWO: STANDARDIZING ENTRY-TO-PRACTICE REQUIREMENTS Entry into the practice of health care professions should be sufficiently standardized so as to allow practitioners sufficient mobility to move from state to state and continue practicing. Nursing has been successful in utilizing a standardized examination for qualification to practice in every state, thus generally allowing individuals to obtain licensure in states other than the state of original licensure through endorsement. State oversight of practice is maintained as the nurse must be licensed in each jurisdiction in which she or he practices. If this were the extent of this recommendation, there would be little more discussion to add to it. However, the report also recommends under this point that states limit entry-to-practice requirements "to competency assessments for health professionals to facilitate the physical and professional mobility of the health professions," (p. 5) and devotes three of its four policy options to this goal. We note the absence of any clear definition or explanation of what the authors consider to be "competence", nor how it is to be assessed. The text accompanying this recommendation does appear to reject formal education in accredited institutions as a requirement for entry into practice, apparently finding such a requirement unduly restrictive, suggesting that "comparable or innovative education, training, and work experience" could be substituted for it. What kind of "innovative education, training and work experience" might substitute, and how they would be assessed, is not revealed. Nor does the report explain how creating multiple routes for licensure could be reconciled with the goal of standardizing entry-to-practice requirements. One factual error in the report should be corrected. The report states that "the American Nurses Association (ANA). . . uniformly certified nurse practitioners (NPs) in all 50 states . . . . Notably, ANA certification required a master's degree in some instances." (p. 7) The ANA does not certify nurse practitioners or any other nurses. That activity is carried out by the American Nurses Credentialing Center (ANCC). In addition to ANCC, three other certification bodies offer certification programs in specific NP specialties. ANCC certification does not "uniformly certify] nurse practitioners in all 50 states." In some states, ANCC certification is required to practice as an NP; in several others, certification by ANCC or by another national accrediting body is required. In other states, certification is not required, but will be regarded by the state regulatory agency as evidence of having met state standards to practice as an NP. Since 1992, ANCC has required masters' preparation in nursing in order to sit for any of its NP certification examinations. This requirement was added out of a firm belief that certification for advanced practice, in order to assure consumers of a consistently high level of health care services, should include a standardized, minimum level of educational preparation. Policy Options for State Consideration The third policy option under Recommendation II suggests that, in developing standard examinations for entry into practice, "states should resist reliance on accreditation or examination standards which do not directly and demonstrably relate to the minimum knowledge and skills necessary for safe and contemporary practice." What is being targeted here? What do the report's authors suggest needs to be changed? Today's registered nurses require a broad-based education that includes not only health sciences, but also social sciences, liberal arts and other areas, in order to function competently in delivering, planning, designing and overseeing patient care services. ANA strongly rejects any inference that standards for nursing education, or for the academic institutions that provide it, should be eliminated, weakened or reduced. Similarly, we believe that the fifth policy option under this recommendation, which recommends that states "eliminate entry-to-practice standards which are not based on the competence, skills, training or knowledge of the professional." must be clarified further. Which standards are these? Arbitrary or purposefully anticompetitive standards should be eliminated. But how will such standards be identified , and by whom? The report does not offer answers to these questions. The competence and skill of registered nurses cannot be determined merely through a check-list of specific tasks. Registered nurses must be competent in the physical, psychosocial, spiritual and cultural components of care, among others. Preparation for professional nursing practice should consist of the theoretical and clinical education and training necessary to be competent in all of these spheres of practice; entry into practice should be based on a standardized assessment of beginning competence, following completion of a nursing education program. Currently, entry-level competence is assessed through successful completion of a standardized examination. As in all professions, education and licensing for entering registered nurses should (and do) undergo a continual process of assessment and improvement. But what, if anything, in this equation would the authors of the report consider excessive, anticompetitive, or unnecessary? Finally, we note that the fourth policy option under this recommendation suggests that states "recognize alternative pathways in education, previous experience, and combinations of these, to satisfy some entry-to-practice requirements for licensure." The nursing profession has shown a high degree of willingness to take prior education and experience into account in determining educational needs for preparation as a registered nurse. Some schools offer advanced standing for students who hold undergraduate degrees in other fields; many grant credit for experience in related occupations, such as licensed practical nursing. Nursing has also shown much flexibility in its use of distance learning and other innovative approaches to preparing both entry-level nurses and to making baccalaureate education available to registered nurses who have been prepared at the associate degree or diploma level. These approaches, however, do not view related educational and/or practical experience as substitutes or "alternatives" to nursing education in determining entry to practice. Rather, they seek to take such experience into account in assessing a candidate's overall educational needs and in meeting standardized educational requirements. Opportunities to replicate and expand innovative and flexible approaches to the preparation of registered professional nurses should be continually explored and evaluated. This approach--which seeks to fit an individual's experience within their nursing education, rather than to replace it, does a better job of ensuring the public of competent, safe registered nurses who have met clear, standardized requirements for preparation and licensure. RECOMMENDATION THREE: REMOVING BARRIERS TO THE FULL USE OF COMPETENT HEALTH PROFESSIONALS Under Recommendation 3, the Taskforce report has proposed that "states should base practice acts on demonstrated initial and continuing competence. This process must allow and expect different professions to share overlapping scopes of practice. States should explore pathways to allow all professionals to provide services to the full extent of their current knowledge, training, experience and skills." Like many of the Taskforce report's other recommendations, what concerns us most in Recommendation 3 is not what is said, but what is not said. It would be difficult to argue against the proposition that practice acts should be based on demonstrated competence--depending, of course, on how "competence" is defined and determined, and how (and to whom) it is demonstrated. Similarly, it is our belief and understanding that many different professions "share overlapping scopes of practice"--for instance, RNs and physicians; RNs and respiratory therapists; psychologists, social workers and RNs; optometrists and physicians; podiatrists and physicians, etc. If this is already the case, then what is it that the Taskforce recommending here? Is it recommending that the scope of such overlap be expanded, or that regulatory distinctions between "overlapping" professions be eliminated or weakened? Some of the subsequent policy options suggest that this is where the Taskforce report is headed, but this is by no means clear in this recommendation. Suggesting that "all professionals" should be able to "provide services to the full extent of their current knowledge, training, experience and skills" sounds good enough. But who determines what the "full extent" of current knowledge, training, experience and skills" is, and who determines which services utilize that knowledge, training, experience and skills? At least one critically important issue goes completely undiscussed by the Taskforce report. Health care institutions and systems around the country, in a short-sighted attempt to reduce operating costs, are utilizing unlicensed assistive personnel to perform a broad variety of tasks and functions traditionally performed by registered nurses. This phenomenon, and its effects on patient care, have been of increasing concern to registered nurses, consumer organizations, and has received increasing media attention. How can the health professions regulatory system be used most effectively to control this threat to patient safety? Does the report's advocacy of overlapping and flexible scopes of practice apply to individuals who are not licensed or regulated--and who thus possess no legal scope of practice? How can state regulatory agencies' enforcement authorities be most effectively applied against unauthorized practice by such personnel? Does the Taskforce believe that such powers should be expanded or made more explicit, or would this contradict its proposal for more "overlap" in scopes of practice, which many see as a step toward weakening regulatory agencies' powers? Policy Options for State Consideration The report includes three policy options under Recommendation 3. The first of these would "eliminate exclusive scopes of practice which unnecessarily restrict other professions from providing competent, effective and accessible care." Nurses in virtually every state have worked long and hard to remove restrictions which prevent them from practicing to the full extent of their education and training. (Quite often, these restrictions do not stem from scope-of-practice laws, but from restrictive reimbursement requirements, discriminatory practices by payors, antiquated laws on forming professional corporations by nurses, and others). But which scope-of-practice limitations would the Taskforce consider "unnecessary restrictions," as distinguished from necessary consumer-protection provisions? Who should make this determination? Currently, it is made by state legislatures, through an often intensely political process--including the "turf battles" to which the report refers. This political process is arguably flawed in some ways. Yet it is one that nurses have utilized widely and successfully. Through lobbying and grassroots efforts, nurses have won important gains in state legislatures in reducing restrictions on their scope of practice--precisely through convincing legislators that these restrictions are unnecessary as well as costly and a bar to increased access to health care services. Professional scopes of practice should be based on the education, training, skills and competencies of each profession. These differ from profession to profession. Unless one wants to argue that all scopes of practice should be completely open-ended--that any health care worker should be allowed to do anything--than some limits on each profession's scope are going to remain. We agree that these should be as objectively based as possible--as opposed to being based on one or another profession's desire to maintain a service monopoly or on outdated conceptions of a profession's capabilities. But as long as scope of practice laws remain the province of political bodies, their determination will depend on the profession's ability to make its case before relevant elected and appointed officials. If the Taskforce believes that a truly more objective process can be developed that maintains public control and accountability of health professions practice, we are certainly open to exploring it. But even in its criticism of current regulatory processes, the Taskforce report has not proposed a system of regulation that is not dependent on political and legislative processes. Text under Recommendation 3 suggests that, in putting forward its proposal for "overlapping" scopes of practice, the Taskforce is, at least in part, targeting the phenomenon of physicians possessing a broad, all-encompassing scope of practice, with other professions possessing a "carved out" scope of practice that permits them to perform some functions and activities that otherwise would be considered the practice of medicine. We agree that the proposition that physicians possess a "universal" scope of practice and that other professions practice a "subset" of medical practice is unworkable, antiquated and inaccurate. Registered nurses, for instance, possess a broad scope of practice that includes some tasks, functions and competencies in common with physicians, but nursing is a separate, autonomous profession based upon different educational and clinical backgrounds and competencies. "Overlap" between professions is already a fact of life, but it should not be allowed to obscure distinctions between professions nor to ignore those areas in which different professions possess unique competencies. For instance, the fact that registered nurses administer medications does not mean that other professions or occupations with limited authority to administer medications of specific types, or affecting specific systems, and/or through specific routes practice nursing. The third policy option under Recommendation 3 would "allow individual professionals from one profession to expand their scopes of practice with an additional service or level of service found in one or more other professional practice acts through a combination of training, experience and successful demonstration of competency in that skill or service level." The Taskforce report does not suggest how this would work: what kinds of services would be involved? To whom would competencies in these areas be demonstrated--regulatory boards? Employing institutions or systems? Who would oversee and regulate the performance of these services--the board that oversees the profession in which the individual is licensed, or into which he or she has "expanded" his or her scope? As it stands, this proposal would seriously undermine efforts to ensure that the public is familiar with the scopes and abilities of different health professions. It would allow additional, unwarranted institutional or system control of health professional practice--a particularly dangerous proposal at a time when health care institutions and systems have prioritized cost-cutting, often above patient safety and health care quality. The idea of individual professionals expanding their practice, service-by-service, undermines any consistency in health professions licensing, would make regulatory enforcement a nightmare, and would further undermine public confidence in (to say nothing of its understanding of) regulatory enforcement and discipline. Despite the report's attempt to distance itself from proposals for full-blown institutional licensure, clearly recommendations such as this represent a significant step toward institutional control of practice, the concept which is the foundation of institutional licensure. We also fail to understand how this concept of expandable scopes of practice could be applied to allow non-RNs to "expand" into nursing practice, which is far more than a series of "services" or tasks. Nursing is based on a process of assessment, intervention and evaluation which, while it may require the completion of some tasks, cannot be broken down into a list of tasks to be examined in isolation and then parceled out. RECOMMENDATION FOUR: REDESIGNING BOARD STRUCTURE AND FUNCTION We concur with the report's finding that health professional boards should be responsive to the interdisciplinary nature of health care delivery and to the demands of public accountability. The challenge facing the regulatory system, however, is to respond to these demands while continuing to utilize the clinical and professional expertise necessary to regulate and discipline effectively and to avoid ever-bigger "turf" fights in the regulatory arena. Nursing has long subscribed to the principle of self-regulation precisely because it allows the profession to utilize its professional expertise and commitment to serving the public in determining safe and appropriate standards of practice and in enforcing effective disciplinary measures. Neither regulation nor discipline can be administered effectively or appropriately without being informed by the profession's established standards for practice and for ethical behavior. The report is correct in cautioning against a process that is rendered less effective by conflict of interest or self-interest where they exist, or even by the appearance of the existence of these flaws. Regulatory boards are primarily accountable to the public. Their members are appointed through a process and structure determined by state law and, generally, are appointed by elected officials or bodies. Could this process be more effective? In many cases, yes. We are acutely aware that many state boards--generally those that regulate professions other than nursing--have faced charges of governing in the interest of the regulated professionals only, of covering up dangerous practices and of failure to take effective disciplinary action. Boards should include more effective public representation. How such representation can be achieved should be a topic for considerable study and discussion. We do not believe that this important goal will be accomplished simply by appointing individuals who are not members of the regulated profession. How can the public be assured that consumer members of regulatory boards reflect the public interest? The report accurately notes factors that have undermined effective public representation. Ensuring effective public participation on regulatory boards will require agreement on solutions and a common commitment to achieving them. This process has yet to happen. We believe that the Pew Commission and the Center for the Health Professions could play a valuable role by bringing together health professional, consumer and other groups to discuss and address such solutions. Notably, the report cites the experience of the Province of Ontario, Canada in revamping its regulatory process to, among other things, achieve heightened public involvement and oversight. Yet the "Ontario Plan" was the product of several years of discussion and negotiation among all affected parties in the province. No such process has occurred, at least as of yet, in the U.S. Policy Options for State Consideration The report poses five policy options under recommendation four. The first of these is to establish an interdisciplinary oversight board with a majority of public members to coordinate health professions regulations. The report does not provide substantive additional discussion as to why the creation of such a new regulatory board is needed or how it would function, nor how its members would be determined. Many state governments include an agency that oversees the functioning of individual regulatory boards and which can reject decisions made by individual boards. How would the report's proposal differ from such current arrangements, both in process and in substance? How could the creation of a new, appointed oversight board avoid increasing the politicization of the regulatory process? How would effective public representation be assured, and how would it interact with the need for professional expertise in the regulation and the administration of discipline? These questions must be addressed. The second policy option proposes consolidating boards around "related health professions," including "medical/nursing care." While we support increased communication and collaboration between regulatory boards with authority over related disciplines, we believe that consolidating medical and nursing boards would likely prove to be less effective, more contentious and even paralytic for both professions. Nursing and medicine are separate professions, each of which relates to one other and to numerous other health professions and occupations based on its own educational and practice backgrounds and standards. Merging their functions would only complicate disciplinary processes and make them less effective. It would also markedly exacerbate interprofessional conflicts on scope of practice and related issues. In some recent public discussions, Pew Center spokespeople have indicated that they have rethought this proposal. We encourage that process of rethinking, and urge that this proposal be withdrawn in the final report. The third option proposes developing "board membership profiles that include significant, meaningful and effective public representation to improve board credibility and accountability." As discussed above, how meaningful public representation can be achieved is a question that must be seriously studied and addressed. Who should public members be? What qualifies an individual for service on a regulatory board? To whom is the public member accountable--"the public" as a whole, a supporting consumer organization, the public official who has appointed him or her? The fourth option proposes that regulatory boards and committees be staffed and financed such that they can perform their missions effectively and efficiently. We support this recommendation. How can it best be achieved, particularly in an era when government expenditures are coming under increased scrutiny? How can this proposal be reconciled with the report's advocacy of the creation of new, additional levels of administrative oversight that might draw funds away from current regulatory and enforcement activities? How can boards that are self-supporting through professional licensing fees be the beneficiaries of increased funding, short of significant increases in licensing fees? Effective financing and staffing of regulatory boards is a serious subject that deserves serious consideration so that credible and practical approaches to meeting this goal can be met. Similarly, the fourth proposed policy option under Recommendation 4, which calls for ensuring that boards include "representatives of the state's urban, rural, ethnic and cultural communities," is supportable, but what processes and strategies can be utilized to achieve this goal must be examined and evaluated. The final sentence of this policy option, "Boards should also include representatives from the health care delivery system," is in dire need of clarification. Certainly, boards should include individuals with expertise in health care delivery and in the workings of delivery systems; this can usually be achieved by including health professionals on the boards. The boards should interact with health delivery systems and other interested and affected parties; certainly, representatives of health care institutions, systems, and their trade associations generally make it a point to stay in contact with, provide information to and to lobby health professional regulatory boards. Some health professionals on the boards may play managerial or administrative roles in those institutions or systems. If the Taskforce report is in fact suggesting that separate board seats be set aside for representatives of the health care industry, however, it would be helpful to learn its rationale for such a proposal and how such representation would be affected. RECOMMENDATION FIVE: INFORMING THE PUBLIC The Taskforce report calls for broad accessibility by consumers to information about the regulated health professions and about individual practitioners. While, as the report notes, such a policy of public access must be informed by considerations of privacy and due process, we agree that the public has the right to know about the professionals who provide them with health care services. Nursing has generally been among the most willing and cooperative of the health professions in participating in efforts to make such information available and accessible. This is an era in which consumers increasingly assert their right to information that affects them and that they need in order to make educated choices. The health care professions must recognize this expectation on the part of the public. In addition to having access to information about individual practitioners, however, consumers should also be able to obtain information about the institutions and systems in which those professionals practice. The public should have access to information about the numbers, type and mix of health care processionals and other caregivers utilized by hospitals and other health care institutions and settings. They should have access to uniform data about health care outcomes achieved by them as well. ANA has pushed for public disclosure of data regarding staffing levels, mix and patient outcomes. The "Patient Safety Act of 1996" (H.R. 3355 in the 104th Congress) would have required such disclosure, along with whistle-blower protections for health care workers who report unsafe patient care conditions. This legislation will be reintroduced in the 105th Congress. ANA also believes that patients have a right to know the professional licensure and credentials of individual caregivers. In many settings, patients are not informed as to whether they are receiving care from a registered nurse or from an unlicensed patient care assistant. Incredibly, some institutions have actively discouraged registered nurses from wearing name tags or pins identifying themselves as such. All health care consumers should have the right to know who is providing their care, and all health care professionals should be able to identify their professional licensure to health care consumers. RECOMMENDATION SIX: COLLECTING DATA ON THE HEALTH PROFESSIONS In this recommendation, The Taskforce report calls for boards to "cooperate with other public and private organizations in collecting data on regulated health professions to support effective workforce planning." ANA supports this proposal. Health professional regulatory boards are key sources of important workforce data which, unfortunately, are inadequately utilized at present. These data can play a significant role in helping to configure workforce policy, projections and planning for meeting the health care needs of the American people. Information technology has clearly progressed to a point where available data sources can be integrated and used for a broader range of policy and planning purposes. The Taskforce report's recommendation on data collection is timely and on point. ANA has devoted considerable resources to stepped-up collection and analysis of data regarding nursing workforce and patient outcomes. This has included the development of quality indicators for acute care nursing services and the introduction and support of legislation to require public disclosure of nursing staff levels, mix, and patient outcome data. As part of a report on "Collection of Nursing Workforce Data," the ANA 1996 House of Delegates resolved that ANA would work collaboratively with the National Council of State Boards of Nursing "to support the Pew [Taskforce] report recommendation that state boards maintain nursing workforce data in accessible and understandable formats for public use." The lack of available, usable data has held back nursing and the health care professions generally not only from tracking needed demographic data on health care professionals, but also in effectively collecting and analyzing information on trends in health care safety and quality of care and their link to staffing levels and mix. We must take advantage of existing sources of data and means of data collection if we are to remedy this problem. We look forward to working with the Pew Commission and Center on this issue. RECOMMENDATION SEVEN: ASSURING PRACTITIONER COMPETENCE In this recommendation, the Taskforce report proposes that states "require each board to develop, implement and evaluate continuing competency requirements to assure the continuing competence of regulated health care professionals." Current requirements for practice for most professions involve initial demonstration of competency with no subsequent requirements for demonstrating competency. The Taskforce has accurately noted that this means that individuals remain eligible for practice without any subsequent evaluation of their competency, except in those instances where evidence of unsafe practice may have come to the attention of a regulatory board. ANA agrees that mechanisms should be established for determining and ensuring continued competence to practice. For professions such as nursing, which involve a broad range of clinical specialties and functional roles, devising one measure or means of testing competency is not a simple matter. Initial testing for nursing licensure provides a measure of an individual's ability to begin functioning as an entry-level practitioner following initial preparation as a generalist. But registered nurses, particularly as they progress in their careers, may function in any number of clinical areas, clinical settings and clinical roles. Nurses may also practice as direct caregivers, consultants, coordinators of care, educators, administrators, policy analysts, or in any number of other functional roles. What single measure can be used to assess whether nurses in this extremely broad range of roles remain qualified to retain their licensure? ANA and others are carefully examining different approaches to ensuring continued competency to practice that take into account this multiplicity of roles and specialties. The Taskforce report has suggested professional certification as one such possible approach. Certainly utilizing certification as a measure of continued competence is one approach that can take into account the large variety of professional nursing roles and specialties. The profession has extensive experience in administering certification programs for both its generalists and specialists. Continued certification for both of these categories currently generally includes requirements for continued practice and for relevant continuing education; these predicates for recertification are required at regular intervals following initial certification, which is based upon meeting standard educational and practice requirements and successful completion of a standardized examination in the nurse's specialty area and/or role. The profession continues to explore and refine the use of current certification as a means of demonstrating continued competence. Policy Options for State Consideration While the report's proposed mechanisms for assuring practitioner competence are worth further exploration, we are not as quick to dismiss professional continuing education as one means of assuring competency as is the Taskforce report. ANA has long recognized the importance of continuing education and its relationship to professional development, licensing, relicensing, reentry, certification and assurance of competency in nursing practice. The Task Force report's states that "the evidence that continuing education cannot guarantee continuing competence is sobering." (p.28). What evidence is that? The issue is not that continuing education cannot guarantee selected outcomes, but rather that insufficient research has been done to examine the conclusions and positions which support mandatory continuing education requirements for re-licensing; associates continuing education with the maintenance of continued competencies in nursing practice and professional growth; and links continuing education with ultimate protection of the public and positive patient outcomes. Research studies to evaluate the linkages between continuing education, continued clinical competencies and patient/client outcomes need to be designed to answer such questions as:
Recognizing the fact that insufficient research has been done into the effectiveness of continuing education is not the same as concluding, as the Taskforce report has, that it has been affirmatively demonstrated to be of no value in assuring continuing competency. It has not been. ANA and other nursing organizations recognize the need to invest time and resources to begin to gather the supporting data which is needed to describe the relationship between certification, continuing education and the competency levels of registered nurses in order to link practice to nursing quality patient outcomes and to assure continued competency on the part of its practitioners. In the meantime, continuing education continues to be a principal means for significant numbers of registered nurses to maintain currency in their specialty areas and roles. In fact, a great many nurses in states where continuing education is not mandatory continue to seek out relevant course offerings for precisely this reason. We believe that continuing education will and should continue to play a role in any new systems for assuring continued competency. RECOMMENDATION EIGHT: REFORMING THE PROFESSIONAL DISCIPLINARY PROCESS The Taskforce report recommends that "states should maintain a fair, cost-effective and uniform disciplinary process to exclude incompetent practitioners to protect and promote the public's health." Protection of the public depends in no small part on an effective system for disciplining practitioners who pose a threat of inadequate care or of causing harm--through negligence, incompetence, or malfeasance. The reluctance, unwillingness or inability of some regulatory boards to maintain an effective disciplinary system and to take action, when needed, against incompetent or unethical practitioners has been a source of concern to many, and sometimes even a source of public scandal. We must note, however, that nursing as a profession has distinguished itself by its willingness and ability to impose discipline where needed and to prioritize protection of the public over protection of incompetent or dangerous practitioners. Nursing has also pioneered the use of rehabilitative approaches, including diversion programs, to allow selected individuals to remain in or to return to practice where and when appropriate. Particularly in light of the fact that registered nurses are the largest group of regulated health professionals, these accomplishments should not be ignored. Is there a need for more vigorous and consistent enforcement? In many cases, yes. And certainly, uniformity between disciplines in filing of complaints and accessing information is a reasonable goal. But we believe that the nursing profession's recognition of the importance--both to the consumer and to the profession--of ensuring that patients receive care from competent, safe practitioners, and its willingness to take disciplinary action where indicated--should be noted and emulated. We also believe that initiatives by the profession to institute measures of continued competence can lead to important progress in identifying incompetent practitioners before harm to a patient has occurred. One important area for data collection to which we believe the Pew Center could devote some its resources is in identifying whether and how rates of disciplinary action differ for health professionals who participate in voluntary efforts related to continued competence, such as professional certification or continuing education programs. RECOMMENDATION NINE: EVALUATING REGULATORY EFFECTIVENESS The Taskforce report's ninth recommendation is that states "develop evaluation tools that assess the objectives, successes and shortcomings of their regulatory systems and bodies to best protect and promote the public health." The sole policy option proposed under this recommendation calls for regulatory boards to be subject to periodic external and internal review including sunset-type review and self-assessment. We agree that the functioning of regulatory boards should be continually assessed and should undergo periodic formal review. Criteria for such review must be clear and uniform, and should be based on the board's demonstrated record of effectiveness in specific areas. Moreover, sunset reviews should be conducted and timed to minimize disruption to the board's functioning. Such reviews must not be utilized as an opportunity to increase the politicization of board functioning or to seek reprisal--though lobbying efforts by concerned interest groups, for instance--for regulatory actions that have proven controversial. RECOMMENDATION TEN: UNDERSTANDING THE ORGANIZATIONAL CONTEXT OF HEALTH PROFESSIONS REGULATION In this recommendation, the Taskforce report proposes that "states should understand the links, overlaps and conflicts among their health care workforce regulatory systems and other systems which affect the education, regulation and practice of health care practitioners and work to develop partnerships to streamline regulatory structures and processes." Clearly, health professions regulation does not take place in a vacuum. As health care systems continue to evolve and as patient care becomes increasingly multi-disciplinary in nature, it makes only good sense to study the manner in which different parts of the system interact. This is the only way that a comprehensive view of health professions regulation can be achieved. The role of the profession and of the professional association in self-regulation is an important area for consideration. It is through this process that professionals can be held to appropriate professional standards of practice and that protection of the public can be maximized. We cannot agree with the argument that the involvement of the profession in state regulatory mechanisms must be presumed to constituted the "fox guarding the hen house" (p. 42), particularly if such a conclusion is made based merely on the presence of members of the profession on professional regulatory boards. (This comment is especially perplexing in light of the presence of health professions regulators on the Taskforce that prepared this report on health professions regulation.) Professionals who serve on regulatory boards should be held accountable to the same standards as public members--that is, they should be expected to act in the interests of the public by working to assure safe and competent practice and public access to needed services. Professional members, of course, also bring expertise regarding professional standards and competencies without which effective professional regulation and discipline could not take place. The Taskforce report does a disservice to a sober examination of the role of the profession in the regulatory process by misconstruing the use of the term "scope of practice" in its separate professional and legal contexts. (See quotation at the end of p. 42). It is appropriate and necessary for the profession to define and to describe the kinds of activities and services the profession, including its specialties, provides. While related to it, this is not the same as determining the legally authorized scope of practice of a profession, which is accomplished in statute. The latter "scope of practice" is a legal term of art. It would certainly have been reasonable for the Taskforce report to criticize the inconsistent use of this term in different contexts, and perhaps even to include a discussion of this problem in its chapter on "Standardizing Regulatory Terms." It is not reasonable, however, to utilize the imprecise use of this term to attempt to state a claim of undue nursing influence over state legislative processes where it does not exist. Policy Options for State Consideration We agree with the Taskforce report's suggestion that the "interplay" between health professions regulation and other systems be carefully studied and evaluated. Clearly, any study of our recommendations for changing health professions regulation would be incomplete without such study. In some cases, rules that govern other parts of the health care system have a direct bearing on the professional regulatory system. For instance, Medicare reimbursement rules allow nurse practitioners and clinical nurse specialists in rural areas to bill Medicare directly. In urban areas, however, the only means to bill Medicare for specific services provided by nurses is in physician practices and only when a physician is physically present and when other requirements for direct physician supervision have been met. Private payors' rules and policies often restrict advanced practice registered nurses' ability to practice their profession; in many cases, managed care organizations do not permit advanced practice registered nurses to be members of provider panels, greatly limiting their ability to treat patients. Thus, public and private payment policies can have a considerable impact on nursing practice, irrespective of what the state nurse practice act may authorize as the legal scope of practice. Many other examples exist of the impact that systems other than the health professions regulatory system can have on the practice of health professionals. For instance, institutional policy on admitting privileges often exclude advanced practice nurses. Some state prohibit registered nurses from forming their own corporations. Other examples illustrate the range of restrictions on nursing practice that exist apart from the regulatory system as such. Some have suggested that the existence of different layers of regulation--e.g., health facilities regulation, facility accreditation, health professions regulation, requirements of public and private payors, occupational safety and health standards, and others--are duplicative and costly and that these multiple layers should be streamlined or eliminated. Certainly, dealing with multiple site visits and seemingly contradictory rules and policies can be time-consuming and cumbersome. We agree that, wherever possible, regulatory rules and initiatives by different enforcement and accreditation agencies should be coordinated and that truly contradictory policies should be reconciled. However, we also believe strongly that oversight by different regulatory and accreditation agencies can provide a critically needed cross-check of the delivery of health care services to consumers. This is particularly true at a time when public agencies face cutbacks and reductions in inspection and enforcement activities. Clearly, regulatory and accreditation agencies must talk to one another and should coordinate their activities where appropriate and possible. The goal should be to provide more comprehensive enforcement activities to guarantee safe and quality health care services. Current consolidation within the health care industry, as well as the current one-sided focus of many institutions and systems on cost-containment, demand more coordinated regulatory, accreditation and enforcement activities rather than the reduction or elimination of such activities. One area in which regulatory activities could be coordinated is in the establishment of well-publicized, easily accessible and "user-friendly" mechanisms for consumer inquiries and complaints about safety and quality of care. Consumers are not likely to know with certainty whom to call with a concern about poor care--a state facility licensing agency, a health professions regulatory board (and if so, which one), a private accreditation agency, or another entity altogether. Establishing "seamless" mechanisms for consumers to initiate complaints and investigations--such as by calling a central telephone number or establishing ombudspersons for health care quality complaints--would be one approach to removing from consumers the burden for knowing the intricacies of each agency's activities and jurisdiction or from being required to make a series of time-consuming telephone calls before reaching the appropriate agency. We believe that the public would be better served by such initiatives to coordinate regulatory and investigative activities than by eliminating or reducing the powers of agencies and organizations charged with safeguarding the public's safety and the quality of patient care. We must question the Taskforce report's description of boards of nursing's activities in licensing nurses and in accrediting educational programs as a "conflict of interest." The report, in noting that educational accreditation is "usually a voluntary private agency function in other professions," (p.41), misses entirely the fact that private agencies do carry out accreditation of nursing education programs--including the National League for Nursing, as well as other organizations that accredit specific categories of advanced practice nursing education programs. Clearly, there is room for discussion of the relationship between private and public accreditation of nursing educational programs--for instance, what are the goals of each, and how can coordination of such accreditation activities be maximized? Finally, we believe that importance of professional self-regulation as a continuing, important means of protecting the public and ensuring safe and quality must not be overlooked. The professions' activities in regulating itself cannot be dismissed as mere professional self-interest. The nursing profession sets standards for practice in a wide variety of clinical and functional areas; determines appropriate ethical standards for the profession and its practitioners; accredits professionals based in large part on their knowledge of and adherence to the profession's standards; and interacts with licensing and regulatory boards in helping to ensure that the public receives nursing care that is safe, competent and of consistently high quality. Professional self-regulation complements and to a large extent informs the process of government regulation of the profession. While the nature of this interaction can be explored and refined further, the former simply cannot be carried out effectively without the latter.
BARRIERS AND OPPORTUNITIES FOR IMPLEMENTATION OF REGULATORY REFORM In soliciting responses, the Pew health Professions Commission has requested a brief general discussion of the barriers and opportunities for the implementation of regulatory reform. 1. Defining the Problem Clearly, a first step in outlining a process for regulatory reform must be to define the problems to be targeted by such efforts. While the Taskforce report has outlined some of these, they bear further discussion and refinement. Any attempt at regulatory reform must yield a stronger, more effective and more accessible regulatory system--one which is capable of protecting consumers and ensuring the delivery of safe, quality care. Such a system must be able to stand up to growing attempts to focus changes in health care delivery exclusively or primarily on cost reduction. 2. Focusing on Consumer Protection The purpose and primary function of the health professions regulatory system must be to protect consumers by ensuring safe and quality health care services. In accomplishing this purpose, the system needs to provide for and collaborate in the continued development of strong professions and of appropriately educated, skilled practitioners whose competence to provide high quality services has been and continues to be demonstrated. It should be recognized that some tension may exist between health professions regulation and the institutions and systems who may feel constrained by the requirements the system imposes. While adversarial relationships between regulators and the industry need not be a constant feature of the regulatory environment, the regulatory systems' consumer protection responsibilities should not be sacrificed or minimized in the interests of avoiding tensions or accommodating pleas for "flexibility" in the cause of downgrading the quality of care. 3. Maintaining an effective and adequately funded system At a time of increasing pressure on state budgets and of frequent attempts to limit the role of regulation in public life, adequate support for the health professions regulatory system is critical to maintaining an effective system that can protect the public's health and safety. Continual countervailing pressures that will seek to reduce funding, eliminate regulation and/or consolidate regulatory functions, must addressed in the context of health professions regulatory agencies' continued obligation to protect the public and to ensure high quality health care services. 4. Maintaining Professional Autonomy Health care delivery is increasingly interdisciplinary in nature. This is a good reason for emphasizing increased interdisciplinary communication and for creating new lines of communication between different sectors of the health care regulatory system. It is not, however, a basis for artificially eliminating lines between professions or sectors of the health care industry where these serve to maintain public protection and high quality services. Diffusing regulatory distinctions between professions can lead to less clear regulatory enforcement and authority and retard the continued development of standards and competencies for different professions. It can also open the regulatory system to increased levels of "turf wars" that can paralyze boards and weaken their ability to enforce standards of competent performance by the professionals they oversee. 5. Defining State and Federal Responsibilities A continuing tension exists between state and federal responsibilities in regulating the provision of health care services. Health professionals are regulated by state laws and agencies, but their practice is greatly impacted by federal actions and policies as well. Health care practice increasingly crosses state borders--as a result of increased development and use of communications technologies, because of the increasingly multi-state nature of many health care systems and due to the consolidation of many urban areas into larger areas that span state borders. (In many respects, health care service delivery and organization span increasingly span international borders as well.) These and other factors must be continually assessed and evaluated in order to determine the most effective and efficient means of regulating health care professions. We do not believe that state regulation of health professional practice can or should be eliminated at this time in favor of federal scope of practice legislation. However, the role of the federal government in health professionals' practice must be carefully evaluated. Federal policies that restrict practice, such as Medicare rules on reimbursement for nursing services, should be changed. In some instances, state laws that unduly restrict the practice of specific regulated professions should be subject to federal action. As the report notes , President Clinton's "Health Security Act of 1993" included a proposal for a federal "override of restrictive state practice laws" which would have provided that states may not, "through licensure or otherwise, restrict the practice of any class of health professionals beyond what is justified by the skills and training of such professionals." On perhaps a more modest level, federal Medicaid laws require state medical assistance programs to cover the services of certified family nurse practitioners, certified pediatric nurse practitioners and certified nurse midwives, regardless of whether these professionals are supervised by a physician. In practice, this has dissuaded states from imposing unneeded requirements for physician supervision of advanced nursing practice, since such requirements might put them out of compliance with federal Medicaid standards. 6. Accessibility of Information While the Taskforce report has identified the need for enhanced consumer access to information on health care practitioners and on the regulatory system itself, considerable additional discussion is needed to identify how these goals can be met. We believe that developing agreement on regulatory terms and concepts will be a key element of increasing consumer awareness and understanding, as will establishing clear standards for identifying and providing access to relevant data on health professionals. Such data must also include aggregate data from health care institutions, systems and payers regarding the numbers and mix of patient care personnel practicing in related health care settings. It must also include patient outcome data. These aggregate data are critical for assessing the effects of utilization of regulated health care professionals on consumers and the outcomes of their care. 7. Participation by All Players If attempts to identify needs and priorities for regulatory reform are to be successful, they must involve all relevant and interested players within the health care delivery system--regulated professionals, consumers, health care institutions and systems, payors, regulatory agencies and others. This must be an inclusive effort that takes into account all concerns and points of view. Regardless of what one may believe about the specific reforms it yielded, the efforts to change the health professions regulatory system in Ontario are instructive in this regard. While lengthy and painstaking, reform initiatives in Ontario appear to have drawn in representatives of a broad range of affected groups into the process of designing and implementing regulatory changes. Attempts to design reform through exclusive panels, no matter how expertly qualified its members, are not likely to lead to wide agreement, let alone consensus, among participants in the health care delivery system over how to create the strongest, most effective possible regulatory system. Whittaker, S; Minch, L. “Pew efforts seek to change how health professionals are regulated.” The American Nurse 27 (October 1995) 1, 14. Keepnews, D. "Pew recommendations: What they mean for nursing," The American Nurse 27 (November/December 1995) 2. Keepnews, D. "ANA challenges Pew Health Professions' findings," The American Nurse 28 (January/February 1996) 3.
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