Many factors and processes interact to shape the legally recognized scope of practice. There is significant variation among the states (and sometimes even within the same state) in the legal authority for health care providers’ professional services. Regardless of these differences, however, there is a common framework for the development and implementation of scope of practice policy. To best serve their patients and their profession, as well as to protect their own professional integrity and license, NPs, midwives, and PAs must understand the actors and processes involved in the legal determination of scope of practice.
The Common Legal Framework: State Practice Acts and Licensing Boards
For each group of licensed health care providers, the basis of regulation resides in what is typically called a practice act. This statute, enacted by the state legislature, determines that, to protect the public, only those who meet specified requirements, usually including successful completion of educational programs and a professionally relevant and validated examination resulting in licensure, can perform certain services or functions.
The practice act sets out the rights and responsibilities of licensees and, in varying degrees of specificity, states what those license holders are authorized to do in their professional roles.
In addition, the practice act establishes an administrative agency (such as the Board of Nursing or PA Practice Committee of the Board of Medicine) comprised principally of practitioners and educators from the regulated profession, as well as public members, and gives it a variety of powers:
- to determine who meets the qualifications for licensure;
- to gather, analyze, and disseminate information on the licensed profession’s practice;
- to ensure licensees’ compliance with requirements and standards; and importantly,
- to implement the legislature’s intent by adopting and enforcing rules and regulations designed to further that intent.
Although the title of the board, the exact responsibilities, and the specific duties may vary, each state has a regulatory board responsible for implementing legislative statutes governing the practice of NPs, midwives, and PAs. Traditionally, these boards are staffed by a combination of clinicians and non-clinicians whose goal is to protect the safety of the public by implementing licensure regulations that describe the minimum requirements for practice. The board keeps a list of all the practitioners who have met these requirements for licensure and serves as the disciplinary arm to deal with practitioners who do not follow the rules. As such, the licensing boards are not necessarily the advocate for the NP, midwife, or PA. They cannot set up special rules to help practitioners or defend them in actions against employers or physicians, and its members are not lobbied like members of the legislature.1
The role of these boards in policy development, especially in the area of scope of practice, is extensive and, in many ways, inevitable. Almost no practice act can specify in advance each and every permutation of professional practice, especially given the rapid evolution of clinical knowledge and techniques and the concomitant expansion in educational curricula. As a result, licensing boards must constantly “update” their interpretations and applications of practice act provisions and policies. They do this through a variety of means:
- Boards issue Advisory Opinions and Policy Statements and promulgate rules and regulations that establish more detailed rights and responsibilities than those typically found in the original practice act.
- In carrying out their enforcement functions in individual adjudications or disciplinary actions, licensing boards must grapple with the interpretation and application of policy to new and unique facts and circumstances. Their decisions affect not just the licensee involved, but also the entire profession through development of precedent.
Boards often are in the best position to identify the need for revisions to the practice act itself, and they can recommend proposals for statutory modifications to the legislature.
In recent years, consumer members of regulatory boards have become more engaged in scope of practice issues. Citizen Advocacy Center, a group that provides training and support for public members of regulatory boards, launched a scope of practice initiative in 2010, and has published a number of resources to assist public members grappling with scope of practice issues.
Rulemaking
Rulemaking is the most obvious method boards use to act on their authority to articulate and adopt policy. Usually, rulemaking is done in accordance with the state’s Administrative Procedures Act, which generally requires public notice of the proposed rule and an opportunity for comment, either in a public hearing or through the submission of written testimony. Once it has evaluated the comments, the board either adopts the rule in its original or a modified form or decides not to finalize the proposal. In either case, it is important to analyze the policy issues involved and share informed opinions on how the proposed rule would affect the public’s access to safe and effective reproductive health care services. It is challenging for individuals to do this, but collectively, through professional organizations, you can ensure that regulators hear from those affected by rule changes.
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Most nursing boards have other mechanisms directly focused on scope of practice development and interpretation, such as standing committees on advanced practice and scope of practice. These committees conduct ongoing assessments and evaluations of parameters for advancing educational and clinical practice. On their own initiative, on referral from the board, or by petition from an individual practitioner, these committees issue Practice Statements, Opinions, or Recommendations to the full board addressing whether a skill, procedure, or technique is within the authorized scope of practice of a licensed provider group. In taking these actions, nursing boards evaluate existing statutory and administrative policies, research and clinical studies, professionally developed standards of care, educational and training curricula, and experiences from other states, all with the goal of determining whether the new skills or techniques can be effectively and safely included in a provider’s practice. As individuals or (more commonly) through their professional organizations, advanced practice nurses and midwives can play an important role in these processes, including providing testimony and documentation on factors relevant to demonstrating clinical ability and competence.
Medical boards governing PA practice may also have separate PA committees. In addition to the restrictions on scope of practice provided under state statutes and regulations, scope of practice determinations for PAs may be left to individual supervisory physicians who work with PAs to develop PA duties and delegation agreements. In some states the supervision agreements developed by the supervisory physician and the PA must be submitted to the state’s medical board. Individual PAs advocate for themselves by working with physicians to develop scope of practice and delegation agreements that allow them to provide the full range of services that are within the PA’s competency and training and the collaborating physician’s area of specialization.
Please see Getting Involved with Your Professional Organization. In this section we describe how individuals and their professional organizations are most effective in informing regulatory boards.
Adjuciatory or Disciplinary Proceedings
One final scope of practice policy venue deserves special note: the adjudicatory or disciplinary proceeding, including investigation of outside complaints of alleged scope of practice violations.
In carrying out their responsibility to ensure a licensee’s compliance with legal practice requirements, boards can initiate disciplinary or adjudicatory proceedings directed at an individual provider.
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These proceedings are usually triggered by information gathered by board staff or by the receipt of a complaint (sometimes anonymous) from a member of the public or another health care provider. The process begins with informal information gathering by board staff or investigators. Depending on the results of this investigation, the proceeding can be concluded at this stage with a finding of no violation or a decision that a violation did occur, with the board and the practitioner agreeing to a set of penalties or corrective actions. If there is a finding of a likely violation and no mutually agreeable resolution, then the case can proceed to a formal adjudicatory hearing before the board, with a panoply of procedural rights and requirements specified by both the state Administrative Procedures Act and the board’s own procedural rules.
Several issues integral to these disciplinary proceedings are noteworthy.
- The resolution of these cases often involves issues of “first impression.” That is, the board is asked to interpret and apply the practice act and board policies to a unique set of circumstances that the legislature probably did not anticipate when it wrote the act. The board must base its determination on the best fit between legislative intent, the authority granted to the board, and the facts before it.
- Often, scope of practice issues are central to these cases. The board must analyze whether the individual provider’s decision to perform the task(s) in question was supported by appropriate training and education and whether the provider demonstrated competence, both of which would place the task within the provider’s scope of practice.
- These decisions have salience not just for the individual involved, but also for the broad professional cohort. The board’s determination of “within” or “not within” the scope of practice will have precedent-setting influence in delineating scope of practice policy.
The adjudicatory nature of these licensing board proceedings is markedly different from that of other policy-making processes. In rulemaking and the development of Practice Statements, for example, public and professional input of many kinds is permitted, and often encouraged. In adjudications, however, requirements of due process and fairness dictate that the board base its decision only on the information and evidence appropriately introduced by parties at the hearing. This generally precludes board receipt of communications outside the formal proceedings (ex parte contact).
This emphasizes how important it is for individual practitioners and their professional organizations to provide policy input on an issue before any disciplinary proceedings arise. It also reinforces that any assistance in demonstrating the competence basis for an inclusive interpretation of scope of practice must be filtered through the individual practitioner involved in the proceeding and her/his attorney for the board to consider it. If the clinician whose scope of practice is challenged has not been active in or in contact with state and national professional organizations, she/he may not receive the valuable assistance that peers and associations can offer.
- Edmunds, Learning to work with the board of nursing. Journal for Nurse Practitioners, 2006, 2: 357. ↵