2) Licensure and Regulation

A. Re-emergence of Regulation?

Since November 1994, there has been an "anti-regulatory" trend in public policy in the United States. The defeat of federal health reform, paired with the subsequent election of the Republican majority in Congress, heralded an abrupt turn toward reliance upon "the market" to regulate health care. Efforts to secure new regulation of health care at the state and federal levels were put on hold. But in 1996, in response to continued public concern, Congress passed the Kassebaum-Kennedy bill, providing a limited expansion of access to, and portability of, health insurance. Additionally, regulation of the "drive- through deliveries" and HMO "gag" rules became a focus of Congressional attention.

Growing concern about safety and quality of health care services and increasing examples of excesses by managed care organizations have contributed to a heightened public willingness, and even a demand, for government intervention into some aspects of health care. Whether this trend continues, and how far will it go, remain to be seen. But there are indications that the federal government is increasingly concerned about the percentage of market share that some of the larger managed care systems and for-profit corporations are able to capture, raising questions of antitrust. The potential for one corporation to dominate a given market raises concerns about the potential for unilateral changes to benefit structures and price-fixing, which could seriously harm consumers and providers alike. This possibility has clearly shattered the assumption that government will bow out of health care for any extended period of time.

B. Limitations on State-based Activities

Efforts to regulate managed care organizations and other insurers have met some success in state legislatures, but they have been limited in their effect. This is because self-insured plans, which often insure a substantial proportion of state residents, are exempted from the effect of state regulation. The federal Employee Retirement Income and Security Act (ERISA) preempts most state measures to regulate self-insured plans. This has made activity at the federal level even more important. For example, state legislation on short maternity stays did not apply to self-insured plans because of the ERISA preemption. The federal legislation passed by the 104th Congress, on the other hand, applies to all insurance plans, including self-insured plans.

C. Threats to Individual Licensure

As managed care systems and corporate mergers consolidate more and more across state lines, the difficulties posed by different state licensure laws and regulation become increasingly evident. These difficulties are glaringly apparent in the filed of telehealth where technological advances now allow practitioners to evaluate and treat patients in rural and remote areas. The Pew Commission Task Force on Health Care Workforce Regulation has joined the chorus of those advocating that policy makers reconsider traditional licensure laws. (See information on 1996 legislation in the State Government Affairs area of Nursing World.)

Individual licensure exists to protect the public and assure that the practitioner is directly accountable to his/her client. Over the years, nursing has fought to preserve individual licensure and protect the scope of nursing practice, often in the face of strong challenges by state affiliates of AHA and AONE. These associations advocate expansion of the licensed institution's authority to determine the scope of practice and assume accountability for their employees' actions (i.e., institutional licensure). It is likely that these challenges will increase as hospitals form new alliances with multi-state, mega-managed care systems, seeking to gain consistency in the scopes of practice of their employees and allowing them to easily utilize the same practitioners to provide telehealth or direct care to clients in more than one state.

During the health care reform debates of 1994, organized nursing supported a move toward national licensure laws, not institutional licensure. The advantage of a national individual license would be that variations among the state practice acts, especially governing the practice of advanced practice registered nurses (APRNs), could be addressed federally rather than state by state. National licensure would also preserve individual accountability of the practitioner to his/her client rather than to the employer. Organized nursing will need to remain vigilant and consistent in its efforts to protect individual licensure laws, both at the state or national level.

D. Regulation of Unlicensed Assistive Personnel (UAPs)

As we have seen, hospitals increasingly substitute UAPs for RNs as a cost-saving strategy. As this practice has increased, not only in acute care but in other settings as well, many state boards of nursing and state legislatures are considering methods to regulate these unlicensed providers. This has fostered debate about appropriate supervision and delegation by registered nurses. While each state is unique in its approach, concerns about the effect on quality and safety of patient care are universal. A coordinated and consistent approach to these issues is essential to prevent erosion of the scope of nursing practice on a state-by-state basis. Many states are already considering changes to state nurse practice acts. (See information on 1996 legislation in the State Government Affairs section of NursingWorld.) Some activists believe that direct regulation of UAPs will help ensure safe care through standardization of training, utilization, and allowing RNs to delegate. Others believe that to legitimatize UAPs is a detriment to both patients and registered nurses, and will serve only to lower quality and jeopardize safety. This debate must be resolved to assure a consistent legislative and regulatory approach nationally. ANA convened a working group in January 1997 to delineate a comprehensive position on regulation and utilization of UAPs.