E. APPLYING THE EVIDENCE: HOW PROFESSIONAL AND LICENSING BOARDS ASSESS OR ADVANCE SCOPE OF PRACTICE

APC professional organizations have developed guidelines for advancing scope of practice. These guidelines direct individual NPs, CNMs, or PAs to follow a process and document the evidentiary basis for the proposed change. Some state regulatory boards have developed similar guidelines for assessing scope of practice changes. Evidence supporting abortion as part of APC scope of practice is detailed in Sections IV.A–D and can be used to craft requests for professional and/or state reviews of scope of practice questions.

Nursing Models for Advancing Scope of Practice

Under the nursing model of care, advances in scope of practice result from evidence of the changing health care needs of the population (e.g., need for abortion providers). When a new need is identified, one approach NPs and CNMs can take is to acquire the knowledge, skills, and expertise necessary to specialize in a particular area of care. The Consensus Model for APRN Regulation put forth by the 2008 APRN Consensus Work Group and the National Council of State Boards of Nursing APRN Advisory Group provides for the expansion of scope of practice through the development of new specialties within the advanced practice nursing roles (e.g., CNM, NP). The Consensus Model for APRN Regulation contains the following discussion of specialty development:

New specialties emerge based on health needs of the population. APRN specialties develop to provide added value to the practice role as well as providing flexibility within the profession to meet these emerging needs of patients. Specialties also may cross several or all APRN roles. A specialty evolves out of an APRN role/population focus and indicates that an APRN has additional knowledge and expertise in a more discrete area of specialty practice. Competency in the specialty areas could be acquired either by educational preparation or experience and assessed in a variety of ways through professional credentialing mechanisms (e.g., portfolios, examinations, etc.). (p. 11)

This model for expanding practice is flexible enough to allow advanced practice nurses to acquire new clinical competencies, build upon their educational base, and develop new skills needed to advance their practice beyond their core competencies.23

The ACNM created a set of Standards for the Practice of Midwifery (2003) to guide the practice of CNMs. Standard VIII provides a model CNMs may follow to expand their practice beyond ACNM core competencies:

The midwife:

  1. Identifies the need for a new procedure taking into consideration consumer demand, standards for safe practice, and availability of other qualified personnel.
  2. Ensures that there are no institutional, state, or federal statutes, regulations or bylaws that would constrain the midwife from incorporation of the procedure into practice.
  3. Demonstrates knowledge and competency, including:
    1. Knowledge of risk, benefits, and client selection criteria.
    2. Process for acquisition of required skills.
    3. Identification and management of complications.
    4. Process to evaluate outcomes and maintain competency.
  4. Identifies a mechanism for obtaining medical consultation, collaboration, and referral related to this procedure.
  5. Reports the incorporation of this procedure to the ACNM. (p. 3)

These national models instruct advanced practice nurses who wish to advance their scope of practice to be mindful of laws and regulations (e.g., state practice acts, abortion laws, and provider restrictions in state laws or regulations). Some state laws, practice acts, or licensing board opinions explicitly refer to national guidelines for advancing scope of practice and, therefore, allow advanced practice nurses to follow the referenced guidelines. Other state licensing boards have adapted national models or created their own guidelines for expanding scope of practice. The examples that follow demonstrate how the Boards of Nursing in Kentucky and North Dakota allow for nurses to advance their scopes of practice. The case studies in this section also show how advanced practice nurses and PAs in collaboration with professional organizations and reproductive rights advocates in Alaska, Arizona, Montana, New York and Oregon successfully protected abortion care as part of their professional scope of practice.

The Kentucky Model: Encouraging Individual Professional Judgment in Assessing Scope of Practice

Guidelines created by the Kentucky Board of Nursing (KBN) provide NPs and CNMs with a model for independently assessing whether the performance of an act or service not directly addressed under state law or an existing KBN advisory opinion (interpretation) is within the nurse’s individual scope of practice. The KBN’s Scope of Practice Determination Guidelines (2005) advise that nurses “must exercise professional judgment in determining whether the performance of the act is within the scope of practice for which the nurse is licensed” (p. 1).To assist nurses in making this independent determination, the KBN provides a decision tree for assessing whether an act or function is within their scope of practice.24

The North Dakota Model: A Formalized Process for Advancing Practice

The North Dakota Board of Nursing (NDBN) provides a decision-making model for nurses to use when considering advancing scope of practice. The model recognizes evidence-based abilities and provides a mechanism for advancing nursing scope of practice (NDBN, n.d.[a]; 1999). The NDBN allows advanced practice nurses who are unsure whether an act is within their scope of practice to submit a Request for Practice Statement Related to Nursing Scope of Practice Questions (NDBN, 2006), and the board will make a determination as to whether the specific act is within the clinician’s scope of practice. The NDBN recognizes the dynamic nature of nursing practice and accommodates it by issuing practice statements: “[t]he Board of Nursing recognizes that expanded technology and innovative healthcare models require ongoing adjustments in the delivery of nursing care. As such, the purpose of the practice statements is for guidance and assistance to the nurse in practice” (NDBN, n.d.[b]).

In making its determination the NDBN considers submitted responses to a series of questions. The questions elicit information including reasons nurses should or should not be performing the act; the opinions of nurses, physicians, and the agency as to whether nurses should be performing the act; potential complications; and education requirements for nurses to perform the act. Advanced practice nurses in states with similar mechanisms for determining the bounds of scope of practice should consult with their peers and professional organizations before seeking a practice statement in order to determine whether they are likely to receive a positive outcome.

PAs and the Medical Model

The process for advancing scope of practice for PAs who provide care within the medical model requires a slightly different set of considerations. The AAPA, the national membership organization representing PAs, explains that there are four parameters that determine PA scope of practice: the PA’s education and experience, state law, facility policy, and delegatory decisions made by the supervising physician (AAPA, 2008b). PAs must consider all four parameters when incorporating new skills or procedures into their practice.

Physician-Delegated Approach to PA Scope of Practice

The AAPA Guidelines for State Regulation of Physician Assistants recommend that state laws (or practice acts) should permit PAs to “provide any legal medical service that is delegated to them by the supervising physician when the service is within the PA’s skills and is provided with supervision of the physician” (AAPA, 2006a, p. 4). Most state laws governing PA scope of practice follow this recommendation, allowing for broad delegatory authority by supervising physicians. Many states have moved away from regulating PA practice through statutes or regulations codifying a list of procedures PAs may provide. Instead they give supervising physicians wide latitude to define the scope of services PAs may provide under their supervision; this gives the physician-PA team greater flexibility. In its 1995 Guidelines for Physician/ Physician Assistant Practice, the American Medical Association recognized that while the services delivered by PAs must be within their scope of practice defined by state law, “[t]he role of the physician assistant(s) in the delivery of care should be defined through mutually agreed upon guidelines that are developed by the physician and the physician assistant and based on the physician’s delegatory style” (cited in AAPA, 2006b, p.1).

In many states the supervising physician-PA team determines the scope of practice for the PA within the parameters set by state laws and regulations and facility policy. For example, in Wyoming, supervising physicians have wide latitude to determine the scope of practice of the PAs they supervise: “The physician assistant may perform those duties and responsibilities delegated to him by the supervising physician when the duties and responsibilities are provided under the supervision of a licensed physician approved by the board, within the scope of the physician’s practice and expertise and within the skills of the physician assistant” (Wyo. Stat. § 33-26-502(b)).

Checklist/Hybrid Approaches to PA Scope of Practice

Although most states have moved away from providing checklists of approved PA procedures in laws or regulations, some do require the physician-PA team to submit a delegation agreement to the medical board for approval in order to establish PA scope of practice. States and other jurisdictions that require licensing board approval for PA functions include Washington, D.C., Georgia, Kentucky, and Mississippi, among others (AAPA, 2008d; AAPA, 2009).25 Other states have codified lists of duties or procedures that fall within a PA’s scope of practice, but allow supervising physicians some latitude in determining scope of practice for PAs.

While the supervising physician is always involved in determining the PA’s scope of practice based on the PA’s education and experience, state statutes and regulations may limit a PA’s practice or require board involvement in or approval of the scope of practice the PA-physician team determines. PAs and their supervising physicians who are considering expanding the PA’s scope of practice need to be mindful of specific limits the state’s licensing board or legislature may placed on that scope of practice.

23 For a list of the essential documents all clinicians must have to establish that they are competent and legally authorized to practice, see Section V.B.

24 See Appendices 1 and 2 of the KBN’s Scope of Practice Determination Guidelines for decision-making models.

25 A summary of all state laws and regulations by state is available from the AAPA at http://www.aapa.org/gandp/state-law-summaries.html.