The message from Big Bend Regional Medical Center was stark: The only hospital in a sparsely populated region of far West Texas notified local physicians last month that because of a nursing shortage its labor and delivery unit needed to temporarily close its doors and that women in labor should instead be sent to the next closest hospital — an hour’s drive away.”
Texas licenses certified nurse midwives, certified professional midwives, and women’s health nurse practitioners. I believe that pregnant moms, living in this medical “dessert” would welcome certified nurse midwives, birthing clinics, and women’s health practices. But substantial roadblocks exist which severely circumscribe advanced practice nurses (APNs) from becoming health innovators and entrepreneurs. Although all APN curricula were standardized to facilitate licensure over thirty years ago (including nurse practitioner and nurse-midwife educational requirements) and that curriculum supports full practice licensure in an excess of 20 full practice states, the Texas Nursing Practice Act requires Nurse Practitioners to have written “prescriptive delegation” consent—also referred to as a collaborative agreement— from a supervising physician. In addition to the TX Board of Nursing, NPs are also regulated by the TX Board of Medicine. Only recently that TX finally eliminated the requirement that a doctor be on-site to oversee NPs at all times, and the fight continues. The Texas mandate limits practice to areas where physicians have offices. No physician, no collaboration. Yet states like Montana and North Dakota have allowed nurse practitioners to provide independent care in underserved areas almost since the beginning of the profession (1980’s).
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The inequity includes costly charges to practice and an uneven reimbursement system. With collaboration, agreements come charges for collaboration. According to the first national study conducted by NCSBN, maintaining a “collaborative practice agreement” with a physician can cost thousands of dollars each month, while establishing an agreement can cost up to $50,000. Add in Medicare “incident to” reimbursement scheme which pays NPs 85% of physician’s reimbursement for the same service when practicing independently and you have the foundation for business disaster. With Texas mandating collaboration, a physician could well require sign off on all APN care with any degree of complexity, thus requiring government or insurance reimbursement through the physician’s business, under MD identifier, with the physician making payment to the nurse as a contractee, thus controlling the amount received in reimbursement for services rendered.
Should the nurse file directly for payment, her rate of pay is less than that of a physician, although she renders comparable services and has comparable overhead. Medicare payment differentials (which are often mimicked by private insurers) serve as disincentives for APNs to set up nurse-led practices, with or without full practice authority. And Medicaid and private insurers structure payment to NP’s using the “incident to” reimbursement models. For these reasons, l recommend the following:
1. Remove the mandated collaboration requirement. Nurse-midwives and nurse practitioners know when they need to collaborate and they will request such without a mandate. The foundation of nursing education is teamwork. The holistic approach to care requires collaboration. The mandate was designed premised on the medical model of care delivery. Had one legislator discussed this legislative provision with a nurse educator, they would have known that the teaching method used by nurses is premised on teamwork, care coordination, and, of course, collaboration. If it were not mandated, physicians could not seek payment, but instead would seek professional relationships with nurse colleagues, thus restructuring care delivery.
2. States bear or manage the cost of collaboration for nurse-owned clinics or for NP private practices in medically underserved areas. States could use administrative rulemaking and gubernatorial authority to manage health to limit the cost of collaboration. Nonprofit clinics or nurses working in underserved areas should get additional funding as they often care for those most in need of care. Either eliminate or manage the cost of collaboration. As some physicians would probably respond by not collaborating at all, states should create a disincentive for refusing to collaborate.
3. If mandated collaboration remains, set up government units to investigate and set collaboration rates. Government agencies best equipped for investigation include the state attorney general and other health regulatory bodies. Recruit those with antitrust, anti-competition, or ratemaking expertise or develop staff with the expertise to review APN collaborative agreements and the implementation of such. State attorney generals can expand their fraud and abuse divisions to address APN collaboration. Usurious collaborative agreements are costly to the state and deter healthcare access. The expansion of this unit will not only deter misuse of the collaborative process but will also provide a state alternative for addressing anticompetitive conduct. It’s needed now more than ever.
4. Make nurse reimbursement for services equitable. By removing “ incident-to” reimbursement from Medicare regulations, paying advanced practice nurses for the services rendered, the disparities reflected in nurse business models would cease. Competition between providers for basic, primary care would exist and the doc could go back to providing complex care services as needed. The market would restructure itself and an environment for innovative health delivery models would emerge.
5. State insurance commissioners should regulate their healthcare credentialing and reimbursement process. Insurers have varying and different rules for APN credentialling. Given the PHS Act section 2706(a), as added by the Affordable Care Act, states that a “group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable state law.” PHS Act section 2706(a) does not require “that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer,” and nothing in PHS Act section 2706(a) prevents “a group health plan, a health insurance issuer, or the Secretary from establishing varying reimbursement rates based on quality or performance measures.” Similar language is included in section 1852(b)(2) of the Social Security Act. The mandate is clear for the review of credentialing and related payments thereof.
In short, it’s time for us to expand enforcement and regulation beyond state licensing boards and committees. The cost of regulatory silos is too high; and failure to develop adequate enforcement measures not only stymie efforts to address health shortages but also limit health delivery innovation.
See All Answers Ltd. (November 2018). Reimbursement Gap Between Nurse Practitioners and Physicians. Retrieved from https://nursinganswers.net/essays/reimbursement-gap-between-nurse-practitioners-and-physicians.php?vref=1
The Highland County Sun, 12,000 Square Miles Without Obstetrics? It’s a Possibility in West Texas, August 2021 as found at https://www.thehighlandsun.com/health/18084/12000-square-miles-without-obstetrics-its-a-possibility-in-west-texas/amp/
The Economic Burden and Practice Restrictions Associated with Collaborative Agreements, Brendan Martin, PhD, Research Scientist, Nursing Regulation as found at https://www.ncsbn.org/2018SciSymp_BMartin2.pdf
See D. Daniel Sokol, Limiting Anticompetitive Government Interventions that Benefit Special Interests, 17 Geo and Mason L. Rev. 119 (2009), available at http://scholarship.law.ufl.edu/facultypub/149
See also Daniel A. Crane, Scrutinizing Anticompetitive State Regulations Through Constitutional and
Antitrust Lenses, 60 Wm. & Mary L. Rev. 1175 (2019), https://scholarship.law.wm.edu/wmlr/