My comment to the Anticompetitive Regulations Task Force

Practice authority and CON are both ripe areas for reform

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Shortly after the inauguration of President Trump, Executive Orders 14192 and 14219 were issued that made clear that the administration was interested in deregulation and that regulations should be reviewed. Two months ago, the Department of Justice launched the Anticompetitive Regulations Task Force and provided an opportunity for the public to comment on anticompetitive regulations. I posted a comment on anticompetitive regulations in healthcare, focusing on practice authority and Certificate-of-Need (CON) laws. Here is a link to my comments as well as the full text.

Dear members of the Anticompetitive Regulations Task Force:

My name is Edward J. Timmons and I am a senior fellow with the Archbridge Institute. I was previously a tenured professor and have a PhD in Economics. I have published extensively on the effects of anticompetitive healthcare regulations that restrict the practice authority of medical providers. My comments will focus on anticompetitive healthcare regulations that limit access to healthcare, contribute to higher costs, and provide little to no benefit to patients.

Physicians were the first medical provider to become licensed in the United States at the turn of the 20th century. After the federal government provided health insurance to the elderly and poor via Medicare and Medicaid, demand for healthcare spiked and new healthcare professions were created. Unfortunately, the regulations that cover the practice authority of these medical professions have not adopted to changes in education, technology, or market demand.

Scope of practice regulations, largely influenced by medical doctors, restrict the practice authority of healthcare providers like nurse practitioners, pharmacists, physician assistants/associates, and optometrists. Each of these highly trained medical providers is capable of doing more, but their hands are tied by state regulations. Today, most states permit nurse practitioners to work to the full extent of their training. A handful of states grant physician assistants/associates full practice authority. Some states have provided pharmacists with limited prescription privileges, to fill in gaps in access to treatment that is especially helpful to rural residents. Lastly, 14 states now provide optometrists the ability to perform routine laser procedures to patients-- saving them from potentially long drives or long waits to see an ophthalmologist.

The Federal Trade Commission has long recognized that these restrictions on provider practice authority are anticompetitive and offer little benefit to patients. I co-authored a book chapter for the Upjohn Institute where I summarize the existing literature on scope of practice restrictions. In synthesizing the academic literature we reach the conclusion that there is an "emerging consensus: allowing medical practitioners to work independently from physicians does not reduce the quality of care but rather appears to improve the quality of care." My published work on granting physician assistants/associates and optometrists broader practice authority finds evidence that patients benefit from more access, lower prices, and lower incidence of blindness.

I would encourage the Task Force to work with state policy makers to remove these outdated and anticompetitive restrictions on healthcare providers. Patients will benefit from having more choice, freeing them from the same long wait times or long drives to access care from physicians. Physicians will also benefit from having more time to help and treat patients-- providing healthcare to patients where their unique expertise and training is actually needed.

I would further encourage the Task Force to work with state governments to eliminate Certificate-of-Need (CON) laws. In short, CON laws require new or existing healthcare providers to apply for permission from state government to build or expand a healthcare facility or purchase new healthcare equipment. I recently edited a forthcoming issue of Southern Economic Journal focusing exclusively on CON laws. I'm attaching one of the most important articles from the issue-- a summary of the existing literature on the effects of these laws by Matthew Mitchell. These laws are outdated and clearly not serving their purpose of reducing healthcare expenditure. In fact, a recent working paper by Bailey and Shakya find that states that have eliminated CON laws have lower healthcare expenditures. Much like scope of practice restrictions, the FTC has also understood that CON laws are anticompetitive and do not help patients. The sole reason that CON laws persist is due to fierce lobbying from the American Hospital Association and its state chapters. I would encourage the taskforce to partner with state governments and work towards the elimination of CON laws. Eliminating CON laws will improve competition among healthcare providers and improve the quality of care that patients receive.

I appreciate your consideration of my comments and I am happy to answer any follow-up questions or offer additional assistance to the Task Force on improving competition in the market for healthcare.

Sincerely,
Edward J. Timmons, PhD
Senior Fellow
Archbridge Institute