The FTC Cautions Tennessee House on Pain Management Bill

  • Oct 5, 2011

On September 28, 2011, the Federal Trade Commission’s Office of Policy Planning, Bureau of Economics, and Bureau of Competition submitted a letter to a member of the Tennessee House of Representatives (Honorable Gary Odom) commenting on Tennessee House Bill 1896 (H.B. 1896). This bill would require on-site physician supervision of Advanced Practice Nurses, including CRNAs, and Physician Assistants when performing certain pain management services in unlicensed settings. Supervision could only be provided by physicians meeting specific criteria set forth in the bill. Click here for the full text of H.B. 1896.

The FTC posted on its website both the FTC letter as well as a press release (this takes you to the press release; on the right-hand side of the page under “Related Items” is a link to the FTC letter). In part, the press release states:

Federal Trade Commission staff, in response to a request from Tennessee State Representative Gary Odom, stated that there may be reduced access to pain management services in the state, as well as higher costs for those services, under a bill proposed in the Tennessee legislature that would require on-site physician supervision of pain management services in some facilities.

"Access to pain management services in Tennessee is likely to be compromised by unnecessary limits on the abilities of APNs, CRNAs, doctors, and other health care professionals to provide those services, with no demonstrable safety benefits," the FTC staff comment stated. CRNAs are key providers of anesthesia and pain management in many rural and underserved areas, and "access problems may be especially acute for elderly patients with chronic pain, as well as rural and low-income Tennesseans."

The FTC staff also stated that, based upon available evidence, it is not clear that the restrictions proposed in the Bill are necessary to protect patients. "Because the full costs and benefits of the Bill remain uncertain, and because the Bill’s competitive impact may be substantial, especially for rural or underserved Tennessee health care consumers, we recommend that the House investigate the full competitive implications of H.B. 1896 before adopting any of its restrictions. Absent findings that its provisions are likely to ameliorate identifiable safety concerns, we recommend that the Bill be rejected.”

In addition to the FTC press release, the letter itself includes additional comments supportive of rejecting the bill. The comment letter noted that the bill “implicitly acknowledges that physicians, CRNAs and other APNs, deliver pain management safely in many clinical settings” because it does not place new restrictions on these providers when they provide pain management services in licensed facilities (including most hospitals, nursing homes, dialysis facilities, hospice facilities and ASCs).

The FTC press release also noted that the Commission voted unanimously to authorize FTC staff to submit the comments.

The FTC’s submission of this letter is a significant event – to our knowledge, this is only the second time the FTC has sent such a letter concerning a pending state legislative or regulatory issue concerning nurse anesthetists. (The first such letter was in response to the proposed Alabama State Board of Medical Examiners (BME) rule which would have prohibited CRNAs from performing interventional pain management procedures. The proposed rule was ultimately tabled by the BME in November 2010. More information about the Alabama rule is available.

AANA Position

The AANA’s position is that management of both acute and chronic pain is within the professional scope of practice of CRNAs and is not exclusively the “practice of medicine.” (See AANA Position Statement Number 2.11 Pain Management, and Scope and Standards for Nurse Anesthesia Practice)

Please note that Louisiana continues to be the only state in the nation to prohibit all CRNA “interventional” pain management practice. The Louisiana litigation is not binding in any other state and directly affects CRNAs practicing in Louisiana only.