[91WashLRev0147] A Flexible Health Care Workforce Requires a Flexible Regulatory Environment: Promoting Health Care Competition Through Regulatory Reform

TLDR: In this article, the authors examine one key component of the U.S. health care system: competition between health care service providers, especially health care professionals, and examine the role of regulation in this competition.

Abstract: INTRODUCTIONThe American health care system is in the midst of a major transformation. The structure of the industry is in flux as payment methods evolve and innovative care delivery systems emerge, leading not only to new relationships among payers, providers, and patients, but also to novel business models.1 All of these factors-combined with ongoing changes in provider education, certification, and licensure- have complicated the answer to a central question in the health care marketplace: which health care professionals can safely, effectively, and efficiently provide for each component of the broad range of patients' health care needs?This Article examines one key component of the U.S. health care system: competition between health care service providers, especially health care professionals. Varied and regulated professionals deliver an ever-widening range of health care services to patients, in many different settings and at every level of care. While each profession is in certain respects discrete, the scope of practice of each category of caregiver is likely to overlap with that of another, especially when professionals are permitted to practice to the full extent of their education, certification, training, and experience. As a result of this overlap, different types of providers may become-or be perceived as-competitors for the safe and effective delivery of some health care services. General practice physicians can encroach on specialists, advanced practice registered nurses can encroach on physicians, or professionals licensed in one state can remotely provide services to patients located elsewhere, intruding upon the practices of local professionals.2 The ability to flexibly deploy different types of practitioners to perform some of the same services, and the competition this flexibility may engender, can make a valuable contribution to the system's ability to achieve lower costs, expanded access, and increased quality of care.3 It may also be one reason why friction between various types of caregivers has persisted for a long time and appears to be on the rise.4Most health care service providers practice under varied, longstanding, and pervasive regulatory regimes, primarily created at the state level.5 Some of these regimes have roots in the origins of the modern American medical system. They have developed over decades and tend to reflect the educational systems, training regimens, expectations, and mores of their times.6 Reflecting those times, these regulations may entrench specific business and care delivery models, creating what might be characterized as "regulatory barriers by design" for some new types of providers.7 This may be especially true for those who seek to provide the same services as incumbent providers do through innovative practice or business models that do not readily fit within established regulations. Further complicating the competitive landscape, these regulations often are administered by self-interested, nominally state boards constituted either of the very professionals to be regulated or their competitors. And those professionals may interpret existing laws and regulations in ways that limit new sources of competition, and may have both the means and incentive to extend these protections through even more restrictive regulations.8Existing regulations and regulatory systems, therefore, may not be consonant with the expectations, capabilities, and needs of the changing health care environment. To the contrary, these laws and regulations, and the traditional way in which they have been administered, together can erect hurdles in the path of competition and innovation. Instead of being conducive to change, they can impede it in whole or in part, are susceptible to manipulation, and invite efforts to impose new restrictions to slow or arrest the development of new, expanded, and non-traditional models of providing health care services. Some health care providers thus have faced significant challenges when they seek to utilize their full knowledge, training, and skills to provide safe and effective care. …