In an ideal world, statutory definitions of professional practice would be consistent with and build upon a profession’s definition of its practice base, yet be general enough to encompass the dynamic nature of an evolving scope of practice. Such a consistent yet flexible definition would serve society both by enhancing the geographic mobility of providers and by promoting access by all states’ residents to the full range of services nurses, NPs, midwives, and PAs provide. Unfortunately, this consistency does not yet exist, as the wide variation in state practice authority, as well as abortion practice restrictions for NPs, midwives, and PAs, shows. This lack of consistency in statutory definitions is one more reason it is so important for clinicians to understand both their state’s current scope of practice provisions and strategies for advancing their scope to encompass evolving competencies.
A quick review of the essential concept of professional scope of practice will help reinforce its relevance to sustaining and promoting the availability of safe reproductive health services, including abortion.1
Scope of practice has been described as:
- “defined spheres of activity within which various types of health care providers are authorized to practice.”2
- “the activities that an individual health care practitioner is permitted to perform within a specific profession. Those activities should be based on appropriate education, training, and experience. Scope of practice is established by the practice act of the specific practitioner’s board, and the rules adopted pursuant to that act.”3
- “establish[ing] which professionals may provide which health care services, in which settings, and under which guidelines or parameters.”4
In less formal terms, scope of practice addresses the questions of “who can do what for whom in what clinical setting and under what circumstances.” Answers to these questions also determine the ancillary but important issue of who can get paid for providing services.
Whether viewed in sophisticated or common-sense ways, scope of practice underpins the entire framework of our health provider licensing system. That is, state governments5 acting to protect and promote the public health, assess the education, training, and abilities of various provider groups and then signal to the public through licensure that these providers have been deemed competent and are authorized to provide a relatively defined range of health services in a safe and effective manner.
Understanding scope of practice as the central organizing principle of our regulatory scheme lets us appreciate the history of its political and professional evolution in each state—and its continuing importance for NPs, midwives, and PAs.
Defining Scope of Practice Under an Authority-Based Scheme
Physicians were the first health care providers to secure licensure in all the states, and their legislatively recognized scope of practice—the “practice of medicine”—swept the entire human condition into their exclusive domain. The almost unlimited range of physicians’ authority to practice is reflected in the following typical Medical Practice Act provisions:
Definition of the practice of medicine6: A person is practicing medicine if he/she does one or more of the following:
- offers or undertakes to diagnose, cure, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality;
- administers or prescribes drugs or medicinal preparation to be used by any other person;
- severs or penetrates the tissue of human beings.
This all-encompassing medical scope of practice, combined with physicians’ simultaneously obtained authority to supervise, direct, and delegate to all other kinds of health care providers, preempted the practices of other health professionals and clinicians. This forced subsequent legislatively recognized health care providers, such as NPs, midwives, PAs and others, to settle for narrowly confined scopes of practice “carved out” from the universe of the practice of medicine. Even then, physician supervision or referral was usually required.
This authority-based scheme continues to affect scope of practice today, in decidedly asymmetrical ways. For example, as research and innovation expand effective treatment modalities, all providers must acquire the knowledge and skill to provide these new interventions, but physicians are then immediately able to provide those treatments without having to seek revision in their legal scope of practice.7 In contrast, most other health care providers must confirm that these tasks are within their scope of practice as it is currently defined. If not, these providers must engage in the time-consuming process of legislative or administrative modification of their scope.
Unfortunately, efforts to revise a particular profession’s scope of practice to more accurately reflect ever-increasing clinical abilities is almost always met with the argument of historic authority—that is, “This is medicine, and therefore only physicians can do it.” Of course, given the undifferentiated, universal, and timeless scope of practice legally authorized in medical practice acts,8 the “This is medicine” portion of the argument isn’t inaccurate. However, the second prong of the argument (“…and therefore only physicians can do it”) is both inaccurate and irrelevant to the question of who is competent to do what.
Defining Scope of Practice Under an Evidence-Based Scheme
Fortunately for health care providers, and for the public they serve, the tide is turning slowly but inevitably toward emphasizing evolving ability and competence rather than static, historic grants of exclusive authority. This laudable and necessary shift in approach to scope of practice is succinctly set forth in a 2006 monograph entitled Changes in Healthcare Professions’ Scope of Practice: Legislative Considerations9 (hereinafter referred to as Scope Changes).
Though not binding, the document provides information and guidance to health policy decision makers. Several aspects of Scope Changes are noteworthy for those interested in facilitating access to safe and effective care for their patients.
First, a unique process was used to develop Scope Changes. Its authors describe the publication as “a collaborative project developed by representatives of the [associations of] regulatory boards of the following health care professions: medicine, nursing, occupational therapy, pharmacy, physical therapy and social work” (p. 5). Second, the drafters rejected the static, historic-authority perspective and its resulting turf battles and opted instead to focus on patient safety. The resulting framework “rests on the premise that the only factors relevant to scope of practice decision-making are those designed to ensure that all licensed practitioners be capable of providing competent care” (p. 15).
To put to rest the most common arguments inherent in the “first-in-time, first-in-right” historic-authority approach, the document explicitly sets forth several basic assumptions informing the group’s framework for scope of practice decision making:
- Public protection, rather than professional self-interest, should have top priority in scope of practice decisions; this promotes the public’s access to safe and competent providers.
- Changes in scope of practice are inherent in our current health care system, as knowledge and capabilities are ever evolving.
- Collaboration between health care providers should be the professional norm, not a selectively-imposed statutory requirement only for some.
- Overlap among professions is necessary. No one profession actually owns a skill or activity in and of itself.
Practice acts should require licensees to demonstrate that they have the requisite training and competence to provide a service.
In short, demonstrated clinical ability and competence are to be the touchstones guiding legal authority for health professional scope of practice.
- See also Safriet B, Closing the gap between can and may in healthcare providers’ scopes of practice: a primer for policymakers, Yale Law School Faculty Scholarship Series, 2002, 4422. ↵
- Safriet B, Health care dollars and regulatory sense: the role of Advanced Practice Nursing, Yale Law School Faculty Scholarship Series, 1992, 4423. ↵
- Federation of State Medical Boards, Assessing scope of practice in health care delivery: critical questions in assuring public access and safety, 2005. ↵
- Dower C, Christian S, and O’Neil E, Promising scope of practice models for the health professions, Healthforce Center at UCSF, 2007. ↵
- Although the federal government arguably could directly regulate individual providers, including their basic licensure, it has continued to honor the historic role of the states in carrying out these functions. Also, it should be noted that federal health care facilities (including those run by the U.S. military, the Department of Veterans’ Affairs, and the Indian Health Service) set the scopes of practice for health care professionals practicing in their facilities. These scopes of practice may deviate somewhat from (usually they are more expansive than) the practice laws of the state in which these professionals practice. See Safriet B, Federal Options for Maximinzing the Value of Advanced Practice Nurses in Providing Quality, Cost-Effective Health Care, 2011. ↵
- Washington State Legislature, Revised Code §18.71.011 ↵
- Interestingly, with increased medical specialization and heightened reliance on specialty “certification” as a prerequisite for institutional privileges/credentialing as well as for payment eligibility, medical organizations themselves have begun to emphasize that a physician’s “ability,” rather than professional certification or specialty status, should determine scope of practice, at least as far as physicians’ clinical privileges. ↵
- Even though physicians’ legally defined scope of practice remains exceedingly inclusive and authorizes them to perform virtually any kind of medical or health intervention, most physicians do not and would not engage in such unfettered practice. A combination of extralegal constraints, including common sense, professional judgment, professional ethics, institutional credentialing systems, voluntary accreditation standards, and malpractice insurance provisions, reinforces self-restraint to keep physicians from practicing beyond the boundaries of their abilities. ↵
- National Council of State Boards of Nursing, Changes in healthcare professions’ scope of practice: legislative considerations, 2006. ↵