E. WHO DETERMINES SCOPE OF PRACTICE?

Many factors and processes interact to shape the legally recognized scope of practice of APCs. 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, APCs 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 the 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.

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, including issuing Advisory Opinions and Policy Statements and promulgating rules and regulations that establish more detailed rights and responsibilities than those typically found in the original practice act. In addition, 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. Finally, 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.

Licensing boards, especially Boards of Nursing responsible for NPs and CNMs, are constantly evaluating and assessing scope of practice issues. APCs and their professional associations must be active participants in these determinations.

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 for APCs, individually and collectively through professional organizations, to analyze the policy issues involved and share their informed opinions on how the proposed rule would affect the public’s access to safe and effective reproductive health care services.

Most nursing boards have other mechanisms directly focused on scope of practice development and interpretation. These include 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 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 California the Medical Board includes a Physician Assistant Committee that provides limited guidance on scope of practice questions through answers to Frequently Asked Questions and Information Bulletins. In addition to the restrictions on scope of practice provided under state statutes and regulations, scope of practice determinations for PAs are often left to individual supervisory physicians who work with PAs to develop PA duties and delegation agreements. In some states, such as Montana, the supervision agreements developed by the supervisory physician and the PA must be submitted to the state’s medical board (Mont. Code Ann. § 37-20-301(1)(c)(2007). In addition to the filing requirement of the PA supervision agreement to the Montana Board of Medical Examiners; Mont. Code Ann. § 37-20-301(2) and (3), the PA is required to have a signed “duties and delegation agreement” that must be kept by the PA and made available as requested. Individual PAs advocate for themselves by working with their supervising 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 trianing and the supervising physician's area of specialization.

Please refer to Figure IV.3 in Section IV.F where we suggest effective strategies for working with licensing boards. In this section we describe how individual APCs and their professional organizations are most effective in informing regulatory boards.

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. 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. First, 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 specifically 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 and issues 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. Decisions like these 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 APCs 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.

The Role of the Professions in Defining Scope of Practice

National NP, CNM, and PA organizations have developed documents and policies related to philosophy of practice, practice boundaries, standards of practice and education, competencies for entry into practice and excellence, ethical codes, practice guidelines, educational program accreditation, and practice policies such as institutional privileging, collaborative practice agreements, and so forth. These professional policies and documents establish criteria by which professional organizations credential clinicians. These criteria are also adopted by boards and other regulatory bodies from state to state to monitor and regulate clinical practice, deem it safe or unsafe, and discipline clinicians. Specialty practice (e.g., abortion care as a component of women’s primary care or reproductive health) standards and clinical care guidelines build upon these foundational elements.

At the education level, academic programs that prepare APCs use these practice standards and competencies as the basis for curriculum development and program accreditation. Most national organizations also have state chapters and practice committees that play an important role in the implementation, review, and revision of regulatory and credentialing documents. Because professional regulation is implemented at the state level through licensing boards and legislative action, members of state practice organizations and committees must provide essential formal and informal expertise to these boards and agencies.

Advanced practice nursing organizations, nurse-midwifery organizations, and PA organizations along with professional organizations representing women’s health practice have established a number of essential documents, policies, and mechanisms to assure clinical competence, safety, and quality care.

For more information on these professional organizations and their functions, see the Appendix: