Promoting Competition in Regulated Occupations: FTC Perspectives. Karen A. Goldman, Ph.D.*, ** Attorney Advisor. Federal Trade Commission

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1 Promoting Competition in Regulated Occupations: FTC Perspectives Karen A. Goldman, Ph.D.*, ** Attorney Advisor AADB 135 th Annual Meeting Chicago, Illinois * The views expressed today are my own, not necessarily those of the or any individual Commissioner. **Neither I nor members of my immediate family have any financial interests to disclose relating to the content of this presentation. September 23, 2018 FTC 101 Who we are and what we do Independent agency Five Commissioners with staggered terms Consensus driven decisionmaking Dual mission: Competition and Consumer Protection A range of tools Law enforcement, Research and scholarship, Advocacy Health care expertise 1

in the 21 st Century (>20 days) Now Hear

Competition in the Pet Medications Industry

2 Benefits of Competition ACCESS QUALITY PRICE VALUE INNOVATION CHOICE What Is Competition Advocacy? Non litigation activities to promote competition Workshops / Hearings: Fall, 2018: Competition and Consumer Protection in the 21 st Century (>20 days) Now Hear This (Hearing Health Care, 2017) Examining Health Care Competition ( ) Reports/Studies The Sharing Economy (2016) Competition in the Pet Medications Industry (2015) Congressional Testimony Advocacy Letters to State Legislatures and Regulatory Boards 2

3 About Advocacy Comments Advocacies Analyze Bills or Proposed Regulations from a Competition Perspective State bills usually, comments are in response to a request from a state official Proposed state or federal regulations comments on proposed regulations are in response to an open comment period Outside parties may alert us to a bill or proposed regulation with competitive issues Our research may lead us to suitable bills or proposed regulations Recommendations in advocacy comments are voluntary Goals of Competition Advocacy Provide a framework for thinking about public policy issues from a competition perspective What is the likely competitive impact? How will this affect consumers? Any legitimate justifications to restrict competition? Are there less restrictive alternatives? Protect consumers and fulfill other important public policy goals, BUT Do not unnecessarily restrict legitimate business activities, especially those that may promote competition 3

Selected Recent Advocacy Comments, Health Care DHHS Blueprint to Lower Drug Prices and Reduce Out of Pocket Costs (July 2018) New York endorsement of Canadian dental licenses (April 2018) Washington

4 Selected Recent Advocacy Comments, Health Care DHHS Blueprint to Lower Drug Prices and Reduce Out of Pocket Costs (July 2018) New York endorsement of Canadian dental licenses (April 2018) Washington State Eye Care (Feb. 2018) Pennsylvania APRNs (Jan. 2018) Dep t of Veterans Affairs Telehealth Rule (November 2017) Alaska Certificate of Need Repeal (April 2017) Ohio dental therapists and dental hygienists (March 2017) Iowa physician assistants (December 2016) Delaware telehealth for speech/language pathologists, audiologists, and hearing aid dispensers (November 2016) Delaware telehealth for dieticians and nutritionists (August 2016) Delaware telehealth for occupational therapists and occupational therapy assistants (August 2016) Department of Veterans Affairs APRNs (July 2016) Puerto Rico optometrists (May 2016) Kentucky denturists (March 2016) Alaska telehealth (March 2016) Massachusetts optometrists (February 2016) West Virginia APRNs (February 2016) Georgia dental hygienists (February 2016) Telehealth 4

5 Main Themes of Telehealth Advocacy Telehealth is sometimes a safe and effective alternative to inperson care Broader access and convenience Reduced travel expenditures Increased competition, which may lead to higher quality and lower costs Reducing Barriers to Telehealth Allow flexibility for individual providers to determine whether/when they are able to meet the appropriate standard of care Restrictions on telepractice should be narrowly tailored to meet specific safety concerns (if any) Allow practitioner to decide whether telehealth is appropriate, including first encounter Allow practitioner patient relationship to be established by telehealth without in person exam Alleviate Licensure Barriers to Interstate Practice 5

Alaska Telehealth Potential for increased competition from out of state Physicians (2016) Existing law: No in person examination Seattle is closer to some parts of Alaska than requirement for

requirement Expansion of supply of telehealth providers No credible health/safety justification to exclude would promote competition and increase access out of state Alaska licensed physicians to

practitioner density, rural health professional shortages, favor use of telehealth Three FTC staff advocacies because new Delaware telehealth law required many boards to adopt new regulations

6 Alaska Telehealth Potential for increased competition from out of state Physicians (2016) Existing law: No in person examination Seattle is closer to some parts of Alaska than requirement for licensed providers located in state Anchorage to write a prescription 2000 Alaska licensed MDs located out of state, as FTC staff supported a Bill that would eliminate the many as in state in state requirement Expansion of supply of telehealth providers No credible health/safety justification to exclude would promote competition and increase access out of state Alaska licensed physicians to safe and cost effective care in a state that is almost entirely a health professional shortage area Bill passed Delaware Telehealth (2016) 2nd smallest state, but geographical variation in practitioner density, rural health professional shortages, favor use of telehealth Three FTC staff advocacies because new Delaware telehealth law required many boards to adopt new regulations Illustrate that in person initial evaluation is a barrier to telehealth Occupational Therapy, Dietetics/Nutrition: FTC advocacies supported allowing the practitioner to decide whether to make an initial evaluation by telehealth Audiology proposed regulation would have required an initial inperson evaluation, restricting speech/language hearing services and newborn hearing screening follow up Prompt follow up critical to identifying hearing impaired infants and treatment to develop language skills FTC advocacy: Allow the practitioner to decide whether to make an initial evaluation by telehealth 6

Veterans Affairs Telehealth (2017) Issue: Alleviate state licensure barriers to VA telehealth practice FTC Staff supported the VA s proposed rule VA health care practitioners are only required to

home, regardless of whether the practitioner is licensed in the state where the patient is located.

7 Veterans Affairs Telehealth (2017) Issue: Alleviate state licensure barriers to VA telehealth practice FTC Staff supported the VA s proposed rule VA health care practitioners are only required to hold one state license Rule would ensure that VA telehealth practitioners can provide telehealth services in any state not only at federal sites, but also to or from non federal sites, such as a home, regardless of whether the practitioner is licensed in the state where the patient is located. Rule would increase access to telehealth services, increase the supply of telehealth providers, and potentially increase competition and reduce VA s health care costs Potentially increase veterans choices, improve health care outcomes, especially for those in underserved areas or unable to travel Rule was adopted New York State: Endorsement of Canadian Dental Licenses FTC supported the New York State Education Department s proposed rule that would allow Canadian dentists to become licensed in New York using the same endorsement process available to U.S. dentists Endorsement is important in NY because of a nearly unique licensure requirement: instead of a clinical examination, NY requires a 1 year clinical postdoctoral residency U.S. dentists who have practiced at least two years can avoid this residency The amendment would decrease barriers to licensure of Canadian dentists in New York It could potentially increase the supply of dentists, promote competition and consumer choice, increase access to care, and decrease the price of dental services 7

Loss of competition results in higher prices, potentially lower quality and convenience Little justification for burdensome process

8 Options to Enhance Occupational License Portability Insert graphic map/people Why Occupational Licensure Portability? Occupational licensing can protect from health and safety risks But licensing also restricts the number of providers and competition Loss of competition results in higher prices, potentially lower quality and convenience Little justification for burdensome process for licensed, out of state applicants Limits mobility of licensed workers High barrier for multistate practice (telehealth) and military spouses 8

9 FTC Roundtable (2017) Examined ways to ease licensing of licensed, out of state providers in occupations that generally require licensure Participants represented organizations involved in license portability initiatives Nursing, Medicine, Accountancy, Teaching, Department of Defense Key to Adoption: Importance of Portability to Practitioners and Consumers Portability initiatives most likely to succeed with agreement of stakeholders on need for interstate practice and mobility Driven by changes in technology that allow licensees to provide services remotely and firms with nationwide presence If need for interstate practice and mobility is great, it outweighs local concerns, e.g., minor variations in qualifications Development and adoption of portability initiatives takes time Policies may need to be able to evolve to address changes in practice and technology 9

10 Legal Structure: Interstate Compacts Binding contracts between states, U.S. Const., art. I, 10, cl. 3 Must be adopted verbatim, cannot be unilaterally amended Compact Commission can adopt rules with force of state law Role of Federal grants, and National Center for Interstate Compacts of the Council of State Governments 200+ Compacts, but only 7 for occupational licensure 6 licensure compacts in the health professions, 2 operational (*) Nursing*, medicine*, physical therapy, emergency medical services, psychology, advanced practice nursing Address portability procedures, not scope of practice Legal Structure: Model Laws Earliest licensure portability initiatives, variable State laws need not be identical, and can be amended Uniform Accountancy Act (UAA): Adopted by 55 jurisdictions Substantial equivalency of state licensing standards High adoption because services provided across state lines electronically Nat l Ass n of Boards of Pharmacy (NAPB) (all states + jurisdictions) Licensure transfer in Constitution and Bylaws since 1904; Model Act; all members participate in electronic licensure transfer program Longstanding: engineering (NCEES), architecture (NCARB) 10

11 Mutual Recognition/Multistate License One state license provides privilege to practice in member states Must meet criteria, but usually no additional fees or paperwork Lowest Barrier: Practice in all member states without notice Licensees within each state s jurisdiction for disciplinary purposes Licensees must apply for a new license on move to another state Streamlining varies routine with substantially equivalent qualifications? Existing endorsement process? Practice during processing of application Compacts: NLC, APRN, PTLC, REPLICA, PSYPACT Model Law: UAA Expedited Licensure Multistep process Submit application for determination of qualification for expedited treatment; then receive expedited treatment in other jurisdictions Reduce paperwork and review time in secondary jurisdictions, but higher fees overall Multiple state licenses necessary for accountability in each state? May facilitate a move to another state (if addressed) Compact: Interstate Medical Licensure Compact Model Laws: NABP, NCEES, NCARB 11

12 Harmonization of Licensure Requirements Core areas: education, examination, disciplinary & criminal history Instills confidence in qualifications of out of state practitioners Encourages adoption of portability initiative Standards need not be identical: substantial equivalence Often set as high or higher than most restrictive state But may exacerbate tendency of occupational licensing to restrict labor supply, reduce competition, and increase prices No countervailing quality, health or safety benefits Initiatives for Military Families and Others Streamlining licensure in multiple occupations for interstate moves, but some occupations (e.g., teaching), not covered Important for military families and those who move frequently U.S. Dep t of Defense has encouraged license portability Endorsement of licenses, avoiding need for re examination Temporary licenses Expedited procedures, e.g., allowing photocopies until official copies can be obtained; conditional approval prior to board meetings Add provisions to compact or model law 12

Suggested Approaches Can use Model Law or Interstate Compact Consider mutual recognition (multistate license) and no notice Alternatively, consider expedited licensure in each state of practice

13 Suggested Approaches Can use Model Law or Interstate Compact Consider mutual recognition (multistate license) and no notice Alternatively, consider expedited licensure in each state of practice Harmonize state licensure standards, using the least restrictive standard acceptable Ease licensure on relocation to a new state Expedite, allow practice during processing, temporary licensing for military spouses and others FEDERAL TRADE COMMISSION FOR THE CONSUMER kgoldman@ftc.gov opp@ftc.gov 13

Mid-Atlantic Legislative/Regulatory June 2018 Update

Mid-Atlantic Legislative/Regulatory June 2018 Update Please Note: CCHP has a pending legislation/regulation webpage located at the following link: http://cchpca.org/state-laws-and-reimbursement-policies