The California Board of Registered Nursing is construing a five-year-old state licensing law for nurse practitioners (NPs) in a way that violates the law’s original intent, say attorneys for NPs challenging the law.
Gov. Gavin Newsom signed Assembly Bill (AB) 890 in 2020 to encourage more people to become nurse practitioners, by protecting opportunities for them to practice independently. The law established two new nurse practitioner categories known as “103 NP” and “104 NP.”
The 103 group of NPs are allowed to work in medical group settings without a physician supervisory agreement, provided they each have completed at least 4,600 “transition to practice” hours (three full-time-equivalent years). The 104 group can work independently in any setting, including private practice, having qualified as 103 NPs and gaining an additional three years of work experience “in good standing.”
“Ignoring the text and intent of the law (expand access to independent practice for NPs), the California Board of Registered Nursing has interpreted AB 890 to require 104 NPs must practice as 103 MPs in a group setting for three years,” states the Pacific Legal Foundation (PLF) in a blog post.
The PLF is representing pro bono two experienced California NPs—Kerstin Helgason and Jamie Sorenson—who argue the board has exceeded its authority by impeding nurse practitioners’ path to independent practice, contrary to legislative intent.
Interrupted Careers, Care
The PLF filed Kerstin Helgason and Jamie Sorenson v. Loretta Melby and the California Board of Registered Nursing on January 6 in the Superior Court of California, County of San Diego.
Among the consequences of the board’s action, the PLF says “Kerstin and Jamie must abandon their existing practices—and patients—and spend three years spinning their wheels in work settings where they’d learn nothing new about running an independent practice. Only then can they return to doing what they have been doing for years: running their own private practices.”
“Far worse would be the disruption in care for their patients—many of whom are very vulnerable and struggle with trauma and mental health challenges,” the PLF states. “… Neither they nor their patients can afford to abandon this care for three years to satisfy the Board’s requirement for individual practice.”
‘Handout to Physicians’
California’s pre-AB 890 regulation of NPs was not without its flaws, the PLF says.
“Until recently, California’s nurse practitioners could operate in private practice only if supervised by a collaborating physician,” the PLF post states.
“This mandate forces NPs to pay supervising physicians fees—often topping $6,000 a year—with many physicians charging more than twice that,” states the PLF. “Despite these exorbitant costs, the state does not dictate the health or safety standards in the collaborative agreements; physicians are not required to actively oversee NPs in any meaningful way. It’s simply a required handout to physicians.”
The legislature intended the law to address the situation, and the board’s interpretation of the law created the problems, the PLF says.
“The Board’s wrong-headed interpretation of state law not only exceeds its legal authority but also unconstitutionally discriminates against private practice nurse practitioners, as only 103 NPs can ever achieve independent practice authority,” the PLF post states.
Barrier to Entry
The board created arbitrary regulatory barriers that undermine the professional prospects of nurse practitioners and harms patients in need of care, says Donna Matias, the PLF’s lead attorney on the case.
“The California Board of Registered Nursing’s interpretation of AB 890 directly contradicts the law’s intent to expand access to independent practice by nurse practitioners,” Matias told Health Care News. “By forcing experienced professionals like Kerstin and Jamie to spend three years in group settings where they won’t gain relevant experience, the board is unnecessarily disrupting their careers and putting vulnerable patients at risk.”
Bureau Buddies
Licensing laws are one reason for the nationwide health care provider shortage, says Merrill Matthews, Ph.D., a resident fellow at the Institute for Policy Innovation.
“State licensing bureaus have long used their power to reduce access to needed services,” said Matthews. “And few guilds have used that power more effectively than in the medical profession. States across the country are looking for ways to increase access to mental health professionals, rather than reducing access by imposing more barriers as the California Board of Registered Nursing appears to be doing.”
There are additional actions states can take to improve provider access, says Matthews.
“Such actions can include increasing access to mental health hotlines, expanding telehealth options, and participating in interstate compacts that allow mental health professionals from other states to see patients,” said Matthews.
“Some states are even encouraging medical students to serve in underserved mental health areas, such as jails and youth detention centers,” said Matthews. “California took steps to address its mental health professional shortage. Unless there is clear evidence that the system wasn’t working for patients, additional requirements should not be added by those who benefit from restricting participation.”
Prescription Authority
Another challenge facing NPs is whether they can legally prescribe drugs.
“State laws to determine NPs’ prescriptive authority differ considerably,” wrote Phillip Zhang and Preeti Patel in a 2023 paper on the topic published on the National Library of Medicine website. “Some states allow the full practice of NPs where they may prescribe medications with a level of autonomy comparable to physicians. On the other hand, many states restrict NP prescriptive authority and require physician supervision.”
NPs have prescriptive authority similar to that of medical doctors in 22 states, the report states.
Bonner Russell Cohen, Ph.D., ([email protected]) is a senior fellow at the National Center for Public Policy Research.
Bonner R. Cohen is a senior fellow with the National Center for Public Policy Research, a position he has held since 2002.
