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, CNMs, 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 CNMs, NPs, and PAs, shows. This lack of consistency in statutory definitions is one more reason it is so important for APCs to understand both their state’s current scope of practice provisions and strategies for advancing their scope to encompass evolving competencies.

All APCs are familiar with the essential concept of professional scope of practice. However, a quick review11 will help reinforce its relevance to sustaining and promoting the availability of safe reproductive health services, including abortion.

Scope of practice has been described as:

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 governments,12 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.

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 medicine: A person is practicing medicine if he/she does one or more of the following:

  1. 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;
  2. administers or prescribes drugs or medicinal preparation to be used by any other person;
  3. severs or penetrates the tissue of human beings. (Washington Revised Code §18.71.011)

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 APCs 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, physicians are able to provide those treatments without having to seek revision in their legal scope of practice.13 In contrast, health care providers such as APCs not only must acquire the knowledge and ability to provide these new interventions but also 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.

Legislators, licensing boards, and professional organizations are well aware of the legislative and regulatory dynamics reference to this “historical” definition of physician scope of practice unleashed. Each effort to revise a particular profession’s scope of practice to more accurately reflect ever-increasing clinical abilities is 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,14 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 Considerations (hereinafter referred to as Scope Changes) (Association of Social Work Boards [ASWB] et al., 2006). Though not binding, the document provides information and guidance to health policy decision makers. Several aspects of Scope Changes are noteworthy for APCs and others 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:

  1. 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.
  2. Changes in scope of practice are inherent in our current health care system, as knowledge and capabilities are ever evolving.
  3. Collaboration between health care providers should be the professional norm, not a selectively-imposed statutory requirement only for some.
  4. Overlap among professions is necessary. No one profession actually owns a skill or activity in and of itself.
  5. Practice acts should require licensees to demonstrate that they have the requisite training and competence to provide a service. (ASWB et al., 2006, pp. 8–10)

Assessing Changes in Scope of Practice

Finally, with patient safety as the goal and clinical ability as the metric, Scope Changes articulates four areas of inquiry relevant to assessing changes in scope of practice. These include:

  1. Historical basis: How do the history, theory, and evolution of the profession and its practice support the requested change?
  2. Education and training: Do entry-level training programs provide the knowledge base and skill sets necessary for providers to acquire new skills? Do postprofessional training programs and/or competence assessment tools indicate that the advanced skill can be performed safely?
  3. Evidentiary base: What clinical evidence and research, standards of care, risk data, and other benchmarking data are available to support the inclusion of new skills or techniques in the safe practice of these providers?
  4. Regulatory environment: Is the licensing board authorized and prepared to resolve any regulatory issues resulting from the proposed change, including identifying standards of practice and training, as well as assessment mechanisms for competence? (ASWB et al., 2006, pp. 11–13)

The authors of the monograph conclude that if the analysis of these factors demonstrates a strong basis for redefining a particular scope of practice, the request should be approved, since doing so would promote public access to quality care.

This evolution in scope of practice assessment from an authority-based perspective to one of evidence-based ability bodes well for APCs in their desire to better meet the needs of their patients by providing a model to safe and effective reproductive health care services, including abortion.

11 For more comprehensive analyses of scope of practice, see Safriet (2002, 1992); Dower, Christian, & O’Neil (2007); and Christian, Dower, & O’Neil (2007).

12 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.

13 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. For example, note the following from a listing on the American Academy of Family Physicians website of policy statements on “Family Physicians Scope of Practice”:

“It is the position of the American Academy of Family Physicians (AAFP) that clinical privileges should be based on the individual physician’s documented training and/or experience, demonstrated abilities and current competence, and not on the physician’s specialty” (AAFP, 2009).

The American Medical Association (AMA) holds a similar position. Regarding clinical privileges, the 1993 AMA Policy Compendium states,

“The accordance and delineation of privileges should be determined on an individual basis, commensurate with an applicant’s education, training and experience, and demonstrated current competence.” It also states that “[i]n implementing these criteria, each facility should formulate and apply reasonable non-discriminatory standards for the evaluation of an applicant’s credentials, free of anti-competitive intent or purpose” (AMA, 1993).

AAFP strongly believes that all medical staff members should realize that there is overlap between specialties and that no one department has exclusive “rights” to privileges. (http://www.aafp.org/online/en/home/policy/ policies/c/colonoscopypositionpaper.html)

14 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.