July 29, 2020

Flattening the Provider Curve: Temporary COVID-19 Measures Expanding Scopes of Practice and Lessons from the Past

By Christine Chasse, MSN, RN, NE-C, 2021 JD Candidate at Texas A&M School of Law, Ft. Worth, TX

Scopes of Practice: The Line in the Sand

The “scope of practice” for regulated professions like nursing refers to their state boards’ penumbra of permitted activities and procedures.1 Because the scope of practice for advanced practice nurses (APRNs) such as nurse practitioners (NPs) and certified registered nurse anesthetists (CRNAs) vary by state, these healthcare providers are expected to know what activities and procedures they are/are not authorized to perform and confine them to their scope.2 Should an APRN exceed his/her authorized scope of practice, he/she could be liable for malpractice or practicing medicine without a license.3

Prior to the 2019 Novel Coronavirus (COVID-19) pandemic, 22 states and the District of Columbia allowed NPs to work to the full scope of their practice. Translated, this means that all NPs in these jurisdictions could evaluate patients, diagnose and interpret diagnostic tests, initiate and manage treatments (including prescribing medications and controlled substances), all while exclusively performing under the licensure authority of their state board of nursing.4  Sixteen states allow a reduced NP scope of practice, usually in the form of a collaborative agreement with a physician.5 Twelve states restrict NP scope of practice, requiring career-long supervision by a physician.6 By contrast, CRNAs can practice independently without a collaborative agreement, supervision, or conditions to practice in 27 states.7

Blurring the Lines During Pandemics

Despite these established controls, APRN practice scopes become more fluid during public health emergencies. Following President Trump’s emergency declaration and emergency rule-making on March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) swiftly issued an unparalleled array of temporary waivers and rules to buttress the United States healthcare system’s response to the COVID-19 pandemic.8 These blanket waivers allow, among other things, a relaxed scope of practice for APRNs.9 Although temporary, these changes were immediately applicable across the entire country for the duration of the emergency declaration.10 Prior to the blanket waiver announcement in March, CMS had already approved hundreds of waiver requests for these expanded scopes of practice from healthcare providers, state governments, and state hospital associations in 16 states.11 Following the blanket waiver announcement, other states and providers no longer need to apply for waivers; they can assume using the flexible scopes immediately.12

Whose Line is It Anyway? No Standardization Between the Government and Physician Groups

Adding additional clinicians to complement a physician’s work is key at this time. Current (and future) physician shortages are well documented; the Association of American Medical Colleges estimates a shortage of nearly 122,000 physicians across all specialties by 2030.13 The CMS COVID-19 waivers allow hospitals to use non-physician practitioners to the fullest extent possible, in accordance with a state’s emergency preparedness or pandemic plan.14 Under these new waivers, APRNs can perform services such as order tests and medications that under prior state regulations required a physician’s order.15 “Because they had previously required oversight, it hindered efficiency.”16

While CMS urged states to relax restrictions to allow more flexibility, some medical licensure boards refused. The state of Mississippi, for example, is ranked last in the union for physicians per capita.17 Governor Tate Reeves urged the Mississippi Board of Medical Licensure to show flexibility in addressing patient needs during the outbreak. Nevertheless, on March 24, 2020 Mississippi’s Board of Medical Licensure enacted protectionist measures for their physicians. Despite 1,200 applications from out of state physicians from California alone, the Board refused to allow waivers even for physicians who are licensed out of state to provide telehealth services absent a prior physician-patient relationship.18

In contrast, in Texas Governor Greg Abbott embraced the relaxed waivers, including easing the scope of APRN supervision by physicians, and included oral prescriptive delegation agreements.19 The Texas NPs and primary care physicians interviewed for this article largely corroborated the stance of their governor. Further, they agreed that the waiver is a “great idea to loosen restrictions and use (APRNs).”20 The primary theme was one of collaboration, and a shared “promise to give patients the highest standard of care.”21 Although “some APRNs should be trusted more than others,”22 the physicians interviewed expressed more concern with other efforts to stretch the provider workforce. They cited that the fact that some states allowed fourth year medical students to graduate early and immediately start practice was troublesome because the students lack proficiency and experience.23 One elaborated further that in Italy, they were using “all kinds of physicians, including anesthesiology and ophthalmology” to care for patients hospitalized with COVID-19; however, they are not “as safe or as capable” as an APRN with hospital training and experience.24

The waiver expansion highlights the shrinking availability of family practice physicians as more physicians are opting into more lucrative specialties. One family NP echoed this sentiment, and stated that “we can all use this opportunity during the [temporary] waivers to learn more from one another and help each other. No one is lesser or more than anyone.”25 She clarified that she is not advocating for replacing existing provider roles; instead she stated “I’m here to fulfill a team-based role to take care of patients.”26 Both the NP and physicians agreed that they have separate, independent roles. While “division and hierarchy in medicine ought to be maintained, lines should be fluid in a crisis.”27

This relaxed scope may have the happy side effect of a productivity spike. Allowing APRNs to independently complete more clinical tasks significantly reduces healthcare spending by freeing up physician time.28 CMS’ relaxed waivers in general—and enhanced APRN scope of practice in particular—decreases administrative burdens on providers by eliminating the duplicative processes that state supervisory and collaborative agreements require. When physicians and APRNs are both qualified to perform procedures, each should specialize in the service in which they are most productive.29

Physician Groups: The Line Needs to Come Back After the Crisis

However, physician organizations are likely to challenge any attempt to retain the broadened scope of practice once the CMS waivers end. For instance, the American Medical Association (AMA) maintains its continued stance against comprehensive expansions of APRN scopes of practice, citing that it had “over 50 state legislative victories stopping inappropriate scope expansions of nonphysicians” that “threaten patient safety.”30  It has also successfully lobbied against—and eliminated—every attempted APRN multistate licensure compact proposed in all states over the last two years.31

Additionally, some provider response has been less than enthusiastic, namely between anesthesiologists and CRNAs. Three days after CMS announced the temporary waivers, the president of the American Society of Anesthesiologists (ASA), Mary Dale Peterson, MD publicly expressed disappointment in CMS’ decision at an ASA town hall. Dr. Peterson said that one should not believe there is a workforce shortage of physician anesthesiologists requiring this change, noting reports of anesthesiologists being “out of work” due to cancellations of elective surgeries. Dr. Peterson emphasized that state laws and hospital bylaws on scope of practice can still overrule the CMS rule changes. She also urged that “[anesthesiologists] should not be discouraged…[because] once the emergency declaration expires, so too does the waiver.”32

Dr. Peterson’s comments illustrate an unfortunate “us versus them” mentality and further, her comments ignore nursing’s contributions to the field of anesthesia delivery. Nurse anesthetists have been administering anesthesia for over 150 years and is nursing’s oldest nursing specialty.33 Before the term “anesthesiologist” was coined in the 1930s, there was little financial incentive for anyone with a medical license to take up the work.34

Additionally, CRNAs have been the main providers of anesthesia to front line military personnel since World War I. As nurses were building the reputation and science of anesthesia administration, actions were taken to legislate them out of existence. It was the demonstrated competency by nurse anesthetists that created the unwanted competition.35 Physician-led legislative efforts abolished nurse anesthetists in New York (1911), Ohio (1916), and California (1928).36 It is important to note that historically, physicians did not have a united front in their war against nurse anesthetists. There were simply too many surgeons who favored or depended on them.37 It was only after CRNAs’ call to duty and subsequent performance during World War II that cemented their place permanently in American operating rooms.38

While CRNA competency was not questioned by the ASA town hall, modern-day opponents of fully authorized scope of practice laws for nurses argue that the quality of care, and ultimately, patients, would suffer because APRNs undergo shorter training and clinical experience requirements.39 However, a literature review performed by The Hamilton Project40 presented no evidence that expanding scope of practice laws harms patients or care quality. In fact, many studies supported the opposite.41

Lines Far From Ready to Be Drawn in Concrete

Modified practice authority granted in emergencies generally lasts until the underlying emergency declaration expires or is otherwise cancelled.42 However, it may well be that the broadened scope of practice provided to APRNs during the COVID-19 pandemic will be viewed as beneficial to the healthcare industry and at least to some extent, be retained. Ironically, it was the responsive call to duty during World Wars I and II that cemented nurse anesthetists’ place as a provider.43 While there are subgroups in medicine and nursing in tension, coexistence cannot be denied. Following the pandemic, it is worth health economists to examine if the pre-pandemic APRN restrictions artificially prevented the attainment of system-wide efficiency and constrained overall provider capacity.44

  1. The American Medical Association’s (AMA) position on physician assistants (PAs) is that they do not work independently of physicians, so analysis of PA scope will not be discussed in this article. See American Medical Association, Physician assistant scope of practice, AMA (last accessed May 1, 2020), https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/arc-public/state-law-physician-assistant-scope-practice.pdf.
  2. APRNs are master’s prepared registered nurses who are licensed to perform at a higher level than a bedside registered nurse, but not at the level of a physician. NPs can become certified in a variety of specialties, whereas CRNAs are confined to anesthesia delivery. Association of State and Territorial Health Officials, Scope of Practice Issues in Public Health Emergencies, ASTHO, (May 2013), https://www.astho.org/Programs/Preparedness/Public-Health-Emergency-Law/Scope-of-Practice-Toolkit/Scope-of-Practice-Issues-in-Public-Health-Emergencies-Fact-Sheet/.
  3. Id.
  4. American Association of Nurse Practitioners, State Practice Environment, AANP, (Dec. 20, 2019), https://www.aanp.org/advocacy/state/state-practice-environment.
  5. Id.
  6. Id.
  7. Dyrda, L., 27 states where CRNAs can practice independently, Becker’s Healthcare, (Jan. 18, 2017), https://www.beckersasc.com/anesthesia/27-states-where-crnas-can-practice-independently.html?em=cachasse@gmail.com&oly_enc_id=6322E4685790H3A.
  8. Press Release, Trump Administration Makes Sweeping Regulatory Changes to Help U.S. Healthcare System Address COVID-19 Patient Surge, CMS.gov (Mar. 30, 2020), https://www.cms.gov/newsroom/press-releases/trump-administration-makes-sweeping-regulatory-changes-help-us-healthcare-system-address-covid-19.
  9. California, for example, opted to increase the number of NPs a physician can supervise. The state also waived certain licensing requirements for both physicians and APRNs. California Medical Association, Newsom relaxes workforce rules while protecting physician supervision model, CMA (Mar. 31, 2020), https://www.cmadocs.org/newsroom/news/view/ArticleId/48796/Gov-Newsom-temporarily-relaxes-scope-requirements-in-anticipation-of-COVID-19-surge.
  10. Id.
  11. Id.
  12. Id.
  13. Heiser, S., New Findings Confirm Predictions on Physician Shortage, Association of American Medical Colleges (Apr. 23, 2019), https://www.aamc.org/news-insights/press-releases/new-findings-confirm-predictions-physician-shortage
  14. CMS.gov, supra n. 8.
  15. Id.
  16. Telephone Interview with (name redacted per NDA), Family Practice Physician, (May 2, 2020).
  17. Weatherly, J., Medical licensure board restricts out-of-state telemedicine doctors, Mississippi Business Journal (Apr. 21, 2020), https://msbusiness.com/2020/04/medical-licensure-board-restricts-out-of-state-telemedicine-doctors/.
  18. Id.
  19. Press Release, Governor Abbott Waives Certain Regulations to Expand Health Care Workforce During COVID-19 Response, gov.tx.gov (Apr. 5, 2020), https://gov.texas.gov/news/post/governor-abbott-waives-certain-regulations-to-expand-health-care-workforce-during-covid-19-response.
  20. Telephone Interview with (name redacted per NDA), Family Practice Physician, (May 2, 2020).
  21. Id.
  22. This physician was referring to the lack of standardization for acceptance into NP programs. For example, many NP programs do not require minimum nursing experience working in hospitals, or that the experience be recent. Telephone Interview with (name redacted per NDA), Family Practice Physician, (May 3, 2020).
  23. Adams, A., & Ducharme, J., Meet the Medical Students Becoming Doctors in the Middle of a Pandemic, Time, (Apr. 13, 2020, 1:35 PM), https://time.com/5820046/medical-students-covid-19/.
  24. Note CMS has also allowed for physicians to practice outside of their specialized scope in the United States in response to the pandemic. See generally Centers for Medicare & Medicaid Services, Physicians and Other Clinicians: CMS Flexibilities to Fight COVID-19, CMS.gov, (Apr. 29, 2020), https://www.cms.gov/files/document/covid-19-physicians-and-practitioners.pdf 10.
  25. Telephone Interview with Cristal Hall, Family Nurse Practitioner (April 30, 2020).
  26. Id.
  27. Telephone Interview with (Name Redacted per NDA), Family Practice Physician (May 3, 2020).
  28. Adams, E. K. & Markowitz, S., Improving efficiency in the health-care system: Removing anticompetitive barriers for advanced practice registered nurses and physician assistants, The Brookings Institution (June 13, 2018), https://www.brookings.edu/research/improving-efficiency-in-the-health-care-system-removing-anticompetitive-barriers-for-advanced-practice-registered-nurses-and-physician-assistants/.
  29. Id.
  30. American Medical Association, AMA successfully fights scope of practice expansions that threaten patient safety (last accessed May 1, 2020), https://www.ama-assn.org/practice-management/payment-delivery-models/ama-successfully-fights-scope-practice-expansions.
  31. Id.
  32. DePeau-Wilson, M., ASA COVID-19 Town Hall: Response to Eliminating Scope of Practice Rules, American Society of Anesthesiologists (Apr. 3, 2020), https://www.anesthesiologynews.com/Online-First/Article/04-20/ASA-COVID-19-Town-Hall-Response-to-Eliminating-Scope-of-Practice-Rules/57835?sub=589FCB5DDAE039DF4F9DC51CF3E7AE4CE1CE0B58DF6F78354C4B3763A86A56&enl=true&dgid=&utm_source=enl&utm_content=2&utm_campaign=20200404&utm_medium=button&fbclid=IwAR3kj-deAEMo6KcVq9zfCUedyGzW6AAwuEhm8N-j1LNewpL4vyLUAlh-a-s.
  33. McClure, J., National Nurse Anesthetist Week celebrates the best kept secret in nursing, scrubbing in: Hands-on Health Care Discussions by Baylor Scott & White (Jan. 23, 2012), https://scrubbing.in/national-nurse-anesthetist-week/.
  34. Nor was there an appeal in the 19th century for a physician to accept a subservient, beta role to surgeons: “Anesthesia was born a slave; and she has ever remained the faithful handmaiden of her master Surgery.” Surgeons needed reliable, competent anesthetists to further their own field of surgery. And they found the answer in nursing. See Clapesattle, H. The Doctors Mayo (Minneapolis, 1941) See also Hewitt, F.W., MD, “The Past, Present, and Future of Anaesthesia,” (1896).
  35. Id.
  36. Id.
  37. For example, in 1933 surgeon Dr. Verne C. Hunt invited nurse anesthetist Dagmar Nelson to come from Minnesota to California to work with him. Nelson agreed, even after being made aware of the area’s hostility to nurse anesthetists. Dr. Hunt made this decision after one of his patients died of asphyxiation during a minor surgery.[1] The physician anesthetists first tried to stop Nelson with an injunction, and then filed suit against her for practicing medicine without a license.[1] The California Supreme Court ruled in her favor, deciding that she was acting within the province of nursing: Nelson was not diagnosing or prescribing medications, but carrying out physicians’ orders; namely, the surgeon she was working with. See Chalmers-Francis v. Nelson, 57 P.2d 1312 (Cal. 1936).
  38. Baltz, K. E., “The Value of Special Training in Anesthesia for the Army Nurse,” JAANA, Vol. 15, No. 3, August 1946, 139.
  39. LaPointe, J., Relaxing Scope of Practice Law for APRNs, PAs, to Boost Efficiency, RevCycleIntelligence, (June 26, 2018), https://revcycleintelligence.com/news/relaxing-scope-of-practice-laws-for-aprns-pas-to-boost-efficiency.
  40. “Launched in 2006 as an economic policy initiative at the Brookings Institution, the Hamilton Project is guided by an Advisory Council of academics, business leaders, and former public policy makers.” The Hamilton Project, About THP, (last accessed May 6, 2020), https://www.hamiltonproject.org/about/.
  41. See generally, various studies published by the Archives of Internal Medicine, Gerontological Nursing, Journal of Pediatric Health Care, Nursing Research, Canadian Journal of Emergency Medicine, Congressional Budget Office, Journal of Advanced Nursing, Medical Decision Making, Journal of Nursing Care Quality, British Medical Journal, Medical Care, Cochrane Database of Systematic Reviews, Medical Care Research and Review, Nursing Economics, The Rand Corporation, Journal of the American Medical Association, Health Affairs, Office of Technology Assessment, Annals of Family Medicine, Nursing Outlook, Preventing Chronic Disease, Annals of Internal Medicine, Yale Journal on Regulation, New England Journal of Medicine, Journal of the American College of Cardiology, compiled and listed in American Association of Nurse Practitioners, Quality of Nurse Practitioner Practice, AANP, (last accessed May 1, 2020), https://www.aanp.org/advocacy/advocacy-resource/position-statements/quality-of-nurse-practitioner-practice.
  42. ASTHO, supra n. 2.
  43. Lieutenant Colonel Baltz, K.E., “The Value of Special Training in Anesthesia for the Army Nurse,” JAANA, Vol. 15, No. 3, August 1946, 139.
  44. Adams & Markowitz, supra n. 28.
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About the Author

Christine Chasse is a master's prepared registered nurse and law student at Texas A&M. She worked first as a cardiac nurse, and later in nursing administration. She changed course from her PhD journey to pursue a career in law. Law offers the unique ability to be a leader and a change agent versus merely studying issues. In her infinite spare time, she is also a freelance artist. Her personal email address is cachasse@gmail.com.