10.1.1 The Long History of Multiple Health Care Professions

In medicine, limited license medical specialists have long shared the health care field with physicians. These limited license professionals range from doctorate-level nonphysicians who have full authority to treat a limited range of maladies free from the supervision of a physician, like dentists and optometrists, to mid-level providers who can care for virtually all patients but can only provide a limited set of services, like registered and practical nurses. To handle even more discrete tasks, medicine has also created dozens of more limited allied health professions, like radiology techs and phlebotomists. This division of labor is a fundamental aspect of the delivery of modern medicine. Without it, health care would be much more expensive and much less accessible.

Medicine’s division of labor began over a century ago. At that time, the parameters of acceptable “medical” practice were not well defined. In the late nineteenth and early twentieth centuries, allopathic physicians (MDs) were fighting and defeating homeopaths, naturopaths, and, for a time, osteopaths for control over the practice of medicine.Footnote ³ All three forms of alternative medicine arose as a reaction against traditional medicine, which at that time was often harsh and sometimes harmful. The first, homeopathy, was created in the late eighteenth century around two key precepts: First, the Law of Similars dictated that patients be treated with remedies that would generate symptoms similar to those being experienced by the patient (“like cures like”) and, second, the Law of Infinitesimals called for prescriptions to be very, very highly diluted.Footnote ⁴ Naturopathy also arose in the 1890s. It sought to prevent and cure disease by stimulating the body’s natural healing abilities. One of the founders defined it as a broad discipline that included practices like hydrotherapy, herbal medicine, homeopathy, and a healthy diet.Footnote ⁵ To a large extent, naturopaths opposed surgery and prescription drugs.Footnote ⁶ Early osteopathy, for its part, was created in the 1890s around the belief that diagnosing and treating the musculoskeletal system could successfully treat most illnesses, including those involving internal organs and the brain.Footnote ⁷

Allopathic physicians argued that all three approaches were unproven, in some cases scientifically implausible, and likely to keep patients away from conventional care that could help them.Footnote ⁸ As a result, physicians successfully pushed homeopathy and naturopathy to the margins of the field. In the second half of the twentieth century, they abandoned their objections to osteopathy after it embraced evidence-based medicine.

While this fight was taking place in hospitals and state legislatures, other medical professions were cementing their own place in the health care marketplace. For example, nursing, optometry, and pharmacy all had their first state practice acts in place by 1903.Footnote ⁹ Podiatrists (foot doctors) began organizing as a profession in the early 1900s, and by 1923 at least twenty-three states had enacted practice acts that granted them the right to diagnose and treat diseases of the foot without physician supervision, thus eliminating the risk of prosecution for the unauthorized practice of medicine.Footnote ¹⁰

Physical therapists (PTs) and occupational therapists gained credibility during World War I when they were given status as “reconstruction aides” for badly injured soldiers.Footnote ¹¹ The arrival of polio cemented their roles. All these professions had limited licenses that overlapped with the general, unrestricted health care license of physicians.

Physicians did not campaign against nurses and PTs as they had against naturopaths and homeopaths, perhaps because nurses and PTs worked under the direction of a physician. Optometrists were not so lucky. They dueled with physicians in state courts and legislatures for decades over their right to exist as a separate profession (was refraction “the practice of medicine”?) and then over the scope of their practice.Footnote ¹² Those battles continued to rage throughout the twentieth century as the two professions battled over optometrists’ freedom to use new innovations such as diagnostic eye drops and therapeutic lasers.Footnote ¹³

Following World War II, new technologies quickly expanded the use of laboratory tests and diagnostic imaging. For each of these tasks, new staff were needed. Each staffing specialty eventually coalesced into a new limited license profession. Many fell into the category that universities now call the “allied health professions.” They include laboratory techs and techs for every major kind of imaging device, including diagnostic radiography, computed tomography (CT), magnetic resonance imaging (MRI), nuclear medicine, and ultrasound.Footnote ¹⁴ These licenses can be quite specialized; Arizona, for instance, licenses nine different kinds of radiologic technologists.Footnote ¹⁵

Emergency Medical Technicians (EMTs) and paramedics have a different origin story. Their professions arose in response to a 1966 national report on auto accident injuries. The report revealed that vehicle accidents in 1965 killed more Americans than were lost in the entire Korean War.Footnote ¹⁶ A seriously injured accident victim had a better chance of survival in a combat zone than on the side of the road. The report called for the standardization of training for emergency response personnel. Soon after, Congress passed the National Highway Traffic Safety Act of 1966, which standardized emergency medical service training and promoted state involvement.Footnote ¹⁷

Today, the number of limited license health care professions is vast. California now licenses acupuncturists, audiologists, chiropractors, clinical social workers, contact lens dispensers/spectacle lens dispensers, dental assistants, dental hygienists, dentists, educational psychologists, hearing aid dispensers, marriage and family therapists, midwives, naturopathic doctors, NPs, occupational therapists, opticians, optometrists, osteopathic physicians, pharmacists, pharmacy technicians, PTs, PAs, physicians, podiatric medical doctors, professional clinical counselors, psychiatric technicians, psychiatrists, psychologists, registered nurses, respiratory therapists, speech-language pathologists, and vocational nurses.Footnote ¹⁸ At any given time, one or more will be wrestling with physicians over the boundaries of their permitted scope of practice. But on the whole, the many health care professions have learned to accommodate one another.

In short, physicians have shared the field of medicine with other limited license professionals from the very earliest days of modern allopathic dominance. This sharing and specialization allow the delivery of higher-quality services in a more efficient manner. It delegates less complex and less remunerative tasks to less expensively trained providers, saving time for physicians to provide more complicated (and more highly remunerated) services. In medicine, the widespread sharing of duties from the top to the bottom has normalized it.

The story in law is markedly different. According to scholars Rebecca L. Sandefur and Matthew Burnett, “[b]y the middle of the 20th century, American lawyers had successfully captured most of the tasks of the practice of law, including negotiation and legal advice.”Footnote ¹⁹ Since then lawyers have kept the territory securely to themselves. While several formal and informal exceptions exist,Footnote ²⁰ they are only now emerging from the margins of the profession. In law, unlike medicine, their arrival constitutes an assault on normalcy.

10.1.2 The Spread of Health Insurance, the Emergence of Physician Scarcity, and the Growth of NPs and PAs

Two other historical factors were crucially important to the early acceptance of NPs and PAs. One was the emergence of widespread health insurance after World War II. The second was the shortage of primary care physicians that followed in its wake. NPs and PAs were viewed as part of the solution.

Both professions arose in the aftermath of World War II and the War on Poverty, the occurrence of both the events having changed medicine. During World War II, employers used health insurance coverage as a way to sidestep four years of wartime wage controls.Footnote ²¹ As a consequence, the percentage of the population with health insurance skyrocketed from 9 percent before World War II to nearly 70 percent by 1960.Footnote ²² Enrollment grew from 20,662,000 in 1940 to nearly 142,334,000 in 1950.Footnote ²³ The pool of insured Americans grew again in 1965 when President Lydon Johnson signed legislation creating Medicare and Medicaid. Nineteen million Americans signed up for Medicare in the first year alone.Footnote ²⁴

Yet, just as the ranks of the insured were swelling, the number of new primary care physicians was dropping; physicians were moving away from primary care toward specialties.Footnote ²⁵ As a result, America had far too few primary care providers to serve this growing pool of insurance-card-carrying patients.Footnote ²⁶

Facing this crisis in capacity, some individual physicians began training staff to provide routine care and office procedures.Footnote ²⁷ Delegation of routine care to nurses was also expanding. To finesse the unauthorized practice of medicine issues, nursing, physician, and hospital associations periodically published joint statements supporting this practice.Footnote ²⁸ But the arrangement was unstable. Then, the NP and PA professions were born.

The history of NPs begins in 1965 with the efforts of Loretta Ford, a former public health nurse and a professor of nursing. She teamed up with Henry Silver, a pediatrician, to create a post-registered nurse (RN) curriculum at the University of Colorado for advanced training in pediatric care. Motivating Ford was her awareness that rural public health nurses often visited new mothers and newborns who needed services that were outside the scope of their nursing licensure, such as the diagnosis and treatment of an infection. Yet, no rural physicians were available to legally provide these services.Footnote ²⁹ Ford believed that nurses could fill that need if provided with specialized training. In hindsight, her quest strongly resembles the desire of today’s law reformers to expand and legalize the help that nonlawyer community advocates can provide to clients who would otherwise have no legal assistance at all.

To some extent, Ford was building on past precedent. In 1925, Congress created the Frontier Nursing Service, which allowed trained nurses to serve as midwives.Footnote ³⁰ Then in 1930, the Federal Bureau of Prisons deployed former military corpsmen to provide health care in prisons.Footnote ³¹ California did the same in 1949.Footnote ³² And in the 1940s, Alaska started training community health workers to serve in remote areas.Footnote ³³ We see a similar phenomenon in law today as nonlawyer advocates are both formally and informally expanding their roles in several niches like domestic violence proceedings.Footnote ³⁴

From the outset, NPs had a substantially wider scope of practice than that of registered nurses. The licensing laws allowed NPs, unlike nurses, to diagnose and treat medical conditions in their area of training under the supervision of a physician. With physician oversight, they could admit patients, order imaging or lab tests, and later, write prescriptions.

At the same time, NPs were intended to complement and collaborate with physicians, not replace them.Footnote ³⁵ Ford was careful to use wording that would not anger physicians.Footnote ³⁶ Nearly all NPs were female, like the RN pool from which they were drawn, and nearly all MDs were male. Although many nursing schools did not welcome the new hybrid, they did not stand in the way of NP practice acts.Footnote ³⁷

The first PA program also started in 1965. Its student body consisted of four medics returning from the Vietnam War. Eugene A. Stead, an MD and the program’s creator, felt that the rapid training programs taken by these medics during the war could be adapted to train a cadre of quickly, but highly, trained medical assistants to help remedy the shortage of physicians. He used funding from the National Heart Institute to establish the first program at Duke in 1965.Footnote ³⁸

Although both professions require two years of additional coursework, their entry path and training are different. NP programs require that the applicant be an RN with some practice experience.Footnote ³⁹ Students take two years of classwork and clinical training in a specialty area, like pediatrics. By contrast, most PA programs accept any bachelor’s degree.Footnote ⁴⁰ Like medical schools, however, they have substantial science course prerequisites and require the taking of a competitive examination.Footnote ⁴¹ Some programs also require prior experience in health care such as being a paramedic or medical assistant.Footnote ⁴² PAs then take a two-year course of classes and clinical work that is essentially a condensed version of medical school.Footnote ⁴³ They do not specialize during this basic training. And because there is no medical residency, they can go directly to work after the two-year program, cutting six years off the training of an MD.

After graduation, PAs, like NPs, practice under the direction of a supervising physician. But unlike NPs, the supervising physician determines the PA’s legal scope of practice.Footnote ⁴⁴ If their supervising physician permits, they too can order tests, diagnose illnesses, and select treatments. In most cases, their practice is essentially identical to that of NPs, and, in clinical practice, PAs commonly work side-by-side with NPs doing identical work.Footnote ⁴⁵

Both fields are growing more rapidly than physicians. According to the Bureau of Labor Statistics, the growth rate between 2021 and 2031 is expected to be 3% for physicians,Footnote ⁴⁶ 28% for PAs,Footnote ⁴⁷ and 40% for NPs.Footnote ⁴⁸ Both NPs and PAs are regularly ranked at or near the top of the U.S. News and World Report rankings of the best jobs in health care and the best jobs overall.Footnote ⁴⁹ In 2021, NPs averaged $120,680 annually,Footnote ⁵⁰ and PAs averaged $121,530.Footnote ⁵¹

In the early years, neither NPs nor PAs faced opposition from organized medicine. Several factors may explain this acquiescence. First, as noted above, health care had a long tradition of utilizing trained and licensed mid-level providers to assist physicians. Second, physicians benefitted from the arrival of the new mid-level professionals (unlike the professionalization of optometry). They got better-trained assistants to whom they could delegate more complex tasks while still billing all the services in their own name. The new staff also freed them to undertake more lucrative procedures with their own time. Third, the new professionals were clearly subordinate to the physicians who supervised and directed their work. Physician primacy was not challenged. No patients were lost. Fourth, the health care marketplace had too few physicians, especially in primary care. Help was needed. Fifth, the field had an ample pool of insurance funds from which to pay the new mid-level providers.

10.1.3 The Political Winds Changed When NPs and PAs Sought Independence from Physician Direction

The honeymoon with physicians did not last. Today, NPs and PAs want full independence from physician oversight.Footnote ⁵² Faced with the prospect of NP and PA independence and the accompanying threat to physician income, organized medicine is fiercely fighting these state legislative proposals.

Of course, the objections expressed publicly by physicians do not focus on the protection of their turf. Instead, three other arguments are commonly voiced. The first is that quality will be impaired if NPs and PAs are given too much independence. Physicians don’t believe that mid-level providers deliver the same quality of care that physicians do, especially in complex cases.Footnote ⁵³ Second, physicians insist that mid-level providers are no more likely than physicians to serve low-income and underserved patients.Footnote ⁵⁴ These two contentions will be familiar to reformers who are trying to authorize mid-level legal practitioners. Third, physicians contend that NPs will overuse medical procedures like imaging and lab tests to protect against mistakes caused by their weaker education and training, driving up health care costs.Footnote ⁵⁵

The issue of quality is the most important of these objections. Here, NPs have benefited from a large and growing body of favorable outcomes data refuting physicians’ claims. The strong evidence that NPs and PAs provide high-quality care has enabled NPs to enlist the help of important allies like the American Enterprise Institute,Footnote ⁵⁶ the Brookings Institute,Footnote ⁵⁷ the Institute of Medicine,Footnote ⁵⁸ the Robert Wood Johnson Foundation,Footnote ⁵⁹ the American Association of Retired Persons (AARP),Footnote ⁶⁰ the Federal Trade Commission (FTC),Footnote ⁶¹ and the National Governors Association.Footnote ⁶² NPs have even enlisted some of the physician lobby’s usual allies, like health insurers, hospital associations, and chambers of commerce. Their supporters see the removal of NP scope-of-practice restrictions as a way to bring down costs and make access to health care more equitable.Footnote ⁶³ To this end, the Robert Wood Johnson Foundation allied with the AARP to launch The Future of Nursing: Campaign for Action, a nationwide initiative for state law reform.Footnote ⁶⁴

State by state, the fundraising and the recruitment of consumer groups by the National Association of Nurse Practitioners has been very sophisticated.Footnote ⁶⁵ The NP coalition in New Jersey, for example, included AARP New Jersey, the Chamber of Commerce, the Horizon Foundation of New Jersey (Blue Cross Blue Shield’s corporate foundation in New Jersey), and the New Jersey Hospital Association.Footnote ⁶⁶ In Texas, NPs enlisted individual nursing organizations, hospitals, health care systems, businesses, and educational institutions, along with the Texas Association of Business and the Texas Hospital Association.Footnote ⁶⁷

This combination of favorable outcomes, important allies, and polished campaigning convinced lawmakers in twenty-seven states to enact Full Practice Authority legislation for NPs.Footnote ⁶⁸ These laws empower NPs to diagnose conditions and to order and implement treatments without the need for a collaborative relationship with a physician.Footnote ⁶⁹ PAs are now working to enact similar legislation.

But physician groups have raised their game considerably since the first NP full-practice laws were passed. In the past few years, they have reached out more vigorously to physicians, residents, and medical students in each state where NP or PA scope-of-practice bills have been introduced. The American Medical Association (AMA) has prepared members-only talking points and posted them on its web page.Footnote ⁷⁰ State by state, the AMA is helping local medical societies fashion a strong response when scope-of-practice reform bills are introduced.Footnote ⁷¹ Going forward, both NPs and PAs will face stiffer opposition.Footnote ⁷²

10.1.4 Reviewing the Story

In the 1960s, NPs and PAs were accepted into medicine without organized resistance. In hindsight, this is surprising. Each profession was permitted, under supervision, to diagnose and treat patients. Physicians could easily have perceived the delegation of their core medical powers to be an unacceptable intrusion into the central work of physicians. But they did not. The explanations for this peaceful entry may provide useful clues for law reformers. So, too, will the very different reaction that physicians had when NPs later sought freedom from physician oversight.

When the first NP and PA programs were created, the appearance of new mid-level health care providers was a routine occurrence. No existential norms were threatened. More importantly, physicians benefited financially from the arrival of these highly trained assistants. At the same time, the new professionals did not challenge physician primacy. Crucially, the new mid-level professionals would not be taking patients away from physicians. With a chronic shortage of primary care providers, there were patients enough to go around. Lastly, the practice of medicine was blessed with an ample pool of insurance funds from which to pay the new mid-level providers without taking a slice of the pie from physicians.

Law reformers can duplicate some of these favorable conditions with careful crafting of boundaries, as discussed further in Section 10.3. But the absence of insurance, the lack of a tradition of sharing the legal ecosystem, and the oversupply of JDs are three environmental differences that pose unique challenges for law reformers. They, too, are discussed in Section 10.3.

NPs lost the support of physicians when they sought independence from physician oversight. Freed from physician oversight, NPs could set up their own practices, compete for patients, potentially lower prices, and acquire a status akin to a physician, at the top of the medical hierarchy. As NPs sought this greater independence and prestige, physicians began to view NPs as a financial threat, rather than a financial windfall. This new perspective caused a shift in physicians’ attitudes toward NPs – a shift that also offers lessons for law reform.

10.2.1 Quality of Care

The quality of care provided by NPs has been studied much more than care provided by PAs. The studies of NP quality of care use data from a variety of practice settings and contexts, including primary care, nursing homes, Veterans hospitals, Medicare recipients, and emergency departments, and they employ many methodological and statistical approaches. Yet, the findings have been surprisingly consistent and positive: The number of studies finding that NP care is equal to or better than the care provided by physicians vastly outnumber the unfavorable ones. As a result, the major literature reviews have consistently concluded that, on balance, NPs provide care that is equal to or better than care provided by physicians, though reservations are sometimes expressed about the most complex cases.Footnote ⁷³

These findings have been relied upon in several important public policy reports encouraging the growth of the NP supply and the expansion of their scope of practice, including reports from the Office of Technology Assessment,Footnote ⁷⁴ the Institute of Medicine,Footnote ⁷⁵ and the province of British Columbia.Footnote ⁷⁶

The only regular reservation is the desire for more research on complex cases.Footnote ⁷⁷ However, the research on tough cases is growing. For example, an important 2019 review of the studies on acute and critical care by Ruth Kleinpell and her colleagues found evidence of improved patient outcomes when supervised NPs and PAs deliver care. The positive metrics included:Footnote ⁷⁸

1. 1. Fewer complications

2. 2. Less time on ventilation

3. 3. More use of clinical practice guidelines

4. 4. Improved laboratory test use

5. 5. Increased palliative care consultations

6. 6. Reduced length of hospital stay

7. 7. Reduced readmissions

8. 8. Improved discharge time

9. 9. Longer ICU survival rates

10. 10. Better patient care management

The literature also has positive findings on many other metrics, including blood pressure, glucose outcomes, cholesterol,Footnote ⁷⁹ C-sections,Footnote ⁸⁰ mental-health-related mortality,Footnote ⁸¹ and mortality more generally.Footnote ⁸² A much smaller set of studies have yielded negative findings, often around drug prescribing.Footnote ⁸³ In addition, patients often prefer the care provided by NPs, feeling that NPs offer a more holistic approach than physicians.Footnote ⁸⁴ NPs score consistently higher on patient satisfaction.Footnote ⁸⁵

The least favorable review of NP care was published in 2019 by Erin Sarzynski and John Barry, both MDs. They concluded that the studies offer “mixed results.”Footnote ⁸⁶ On the one hand, NPs had positive findings on studies such as the retrospective study of twenty million community health center patients that found equal or better results for NPs on quality metrics like smoking cessation, depression treatment, statin therapy, physical exams, patient education, imaging, medication use, return visits, and referrals.Footnote ⁸⁷ On the other hand, other studies found that MDs ordered fewer unnecessary antibiotics for acute infectionsFootnote ⁸⁸ and made fewer specialist referrals for patients with diabetes.Footnote ⁸⁹ In the end, the authors conceded that “[p]hysicians’ arguments about quality are largely unfounded, at least for common health concerns.”Footnote ⁹⁰

Researchers have done much less research on PA outcomes. Most studies that include PAs have combined the outcomes of PAs and NPs and reached favorable results.Footnote ⁹¹ When analyzed separately, PA outcomes seem to be very similar to those of NPs.Footnote ⁹²

Two pairs of recent studies with large databases deserve individual mention. In the first set, Peter Buerhaus and his coauthors used a Medicare primary care database that they adjusted for patient severity and found that patients receiving primary care from NPs were less likely to have preventable hospital admissions, hospital readmissions within thirty days of being discharged, inappropriate emergency department visits, and low-value MRIs associated with low back pain.Footnote ⁹³ Physicians, however, had more positive findings for the number of cancer screenings (such as mammography screenings for breast cancer and colonoscopies for colorectal cancer).Footnote ⁹⁴ In a second study using the same data, the authors narrowed their inquiry to Medicare beneficiaries with a disability or a very low income and had virtually the same findings.Footnote ⁹⁵

The other set of studies looked at complex diabetes patients in the Veterans Affairs (VA) system and found that NP and PA team leaders achieved control equivalent to that of physicians for blood glucose, blood pressure, and cholesterol.Footnote ⁹⁶ The second study examining the same data set determined that patients of the NPs and PA team leaders were less likely to be hospitalized or to have an emergency room (ER) visit due to an ambulatory care-sensitive condition, even after adjusting for differences in patients’ medical and social complexity.Footnote ⁹⁷ In a third study, the authors extended their inquiry to less complex diabetes patients, finding that, here too, patients of NPs and PAs had fewer inpatient admissions and less emergency department use than patients of physicians.

The VA studies are especially useful because they minimize two of the most significant potential biases in this research. First, physician consultation is minimal in the VA system.Footnote ⁹⁸ Second, “incident to” billing is not applicable to VA patients. And because the authors investigated both routine and very complex patient care, the authors concluded that their studies provide “further evidence that NPs and PAs may be appropriately used as primary care providers, as opposed to being limited to supplement the care of physicians within primary care settings.”Footnote ⁹⁹

Recent studies have also found favorable NP outcomes in states where collaboration is no longer required. A study by Jennifer Perloff and her colleagues in 2017 found that NP independence had no effect on patient outcomes, including ambulatory care-sensitive hospital admissions.Footnote ¹⁰⁰ Another study by Jeffrey Traczynski and Victoria Udalova found that “allowing NPs to practice and prescribe drugs without physician oversight increases medical care for underserved populations and reduces ER use for conditions responsive to primary care.”Footnote ¹⁰¹ In a study using VA data, Chuan Fen Liu and associates found “comparable or better outcomes achieved at similar costs for patients [with chronic diseases, including diabetes, IHD, and hypertension] across differing levels of comorbidity, suggesting NPs as PCPs need not be limited to less complex patients.”Footnote ¹⁰² The only contrary findings deal with prescription practices,Footnote ¹⁰³ especially the overprescribing of controlled substances.Footnote ¹⁰⁴ More definitive studies on that issue are needed.

Concerns about quality of care have also led some critics to suggest that the use of mid-level providers will generate excessive medical malpractice claims.Footnote ¹⁰⁵ But the data show the opposite – NPs and PAs are far less likely to have a paid malpractice claim than physicians.Footnote ¹⁰⁶

Critics sometimes note that many studies, until quite recently, had any of three potential limitations.Footnote ¹⁰⁷ None of the potential shortcomings, however, warrant a different conclusion about NP or PA quality of care. The first limitation is that most of the studies used data that lacked information about the extent of physician consultation with the NPs.Footnote ¹⁰⁸ Thus, they did not provide information about the outcomes that would occur if NPs were acting independently. However, these studies firmly established that NPs provide equivalent quality of care when in a collaborative relationship with a physician. That finding alone was a major reaffirmation of the NP model. In addition, more recent studies have looked at the care provided by NPs and PAs when they are not working under physician supervision and their findings are equally favorable, as noted above in the discussion of the VA studies and studies from states where NPs can practice independently.

Second, some researchers worry about the potentially distorting effects of a current Medicare billing practice that permits the attribution of care provided primarily by NPs and PAs to MDs. In particular, “incident to” billing allows physicians who have participated in the care of a patient to submit claims in their own name even though a mid-level practitioner provided most of the services. Because services billed in the name of an NP or PA receive only 85 percent of the physician’s fee from Medicare, Medicaid, and private insurers, hospitals and practice groups have a financial incentive to bill in the physician’s name.Footnote ¹⁰⁹ And because the extent of this practice is unknown, researchers who use insurance claims databases will inevitably assign some patient care to MDs that was primarily provided by NPs or PAs. Fortunately, the policy will be tightened in 2024. Furthermore, the VA studies described above did not have this risk and still found that NPs and PAs provided equivalent quality of care.

Third, several studies have found that NPs see patients who, on average, are less complex and less acute than the patients seen by physicians.Footnote ¹¹⁰ As a result, some of the reviews expressing confidence in the care provided by NPs have also expressed caution about the body of research looking at NP care of complex or critical illnesses.Footnote ¹¹¹ But the recent series of VA studies and the two Buerhaus Medicare studies provide preliminary reassurance on this issue; both accounted for patient severity and had positive findings.Footnote ¹¹²

Overall, the existing research justifies the conclusion that NPs and PAs, in their areas of specialization, provide care that is the same or better than care provided by physicians. While individual studies often have weaknesses, they collectively present a strong case for NP and PA quality of care.

The positive patient outcomes generated by NPs and PAs strongly support the claim by law reformers that mid-level professionals can provide high-quality services in their area of specialization if given suitable education and experience.

10.2.2 Impact on Affordability and Access

A primary goal of mid-level legal licensure is to make legal representation for simple matters more affordable. As it stands now, many Americans cannot afford to hire a lawyer. Legal access reform seeks to create categories of mid-level legal providers who are trained more economically than lawyers and, as a result, can charge lower fees and work for lower salaries. But, some wonder, will it work? Will opening up a new breed of practitioner really promote access and reduce costs?

Here again, the story in medicine, and particularly the experience of NPs and PAs, is instructive. NPs and PAs earn roughly half the wages of primary care physicians. In May 2021, according to the Bureau of Labor Statistics, the median income for NPs was $123,780 annually,Footnote ¹¹³ and the median income for PAs was $121,530.Footnote ¹¹⁴ The median for family medicine physicians was $235,930Footnote ¹¹⁵ and for internal medicine doctors $242,190.Footnote ¹¹⁶ Thus, NPs generate substantially lower salaries per full-time-equivalent.

However, the savings in labor cost per patient are reduced because NPs and PAs have historically generated less revenue than physicians. In mixed provider groups, NPs commonly see fewer patients,Footnote ¹¹⁷ see patients with less complex ailments,Footnote ¹¹⁸ work fewer hours,Footnote ¹¹⁹ have longer visits,Footnote ¹²⁰ and generate costs for physician oversight.Footnote ¹²¹ These factors make it difficult to calculate the precise degree to which hiring NPs saves an employer money. The calculation is further complicated by the possibility that the longer visits associated with NPs save health care costs later by generating fewer hospitalizations and less unnecessary imaging down the road.Footnote ¹²²

Regardless, private practice physicians regularly employ NPs and PAs (rather than more physicians) to help keep their practices profitable.Footnote ¹²³ According to a 2009 survey for the National Center for Health Statistics, half of all office-based physicians employed advanced practice nurses or PAs.Footnote ¹²⁴ A report for the Physicians Foundation explains that physicians had been “[f]aced with declining reimbursement rates and the need to increase patient volume in order to keep their practices afloat.”Footnote ¹²⁵ Hiring NPs and PAs allows physician practices to increase their volume at lower cost.Footnote ¹²⁶ Hiring NPs and PAs also allows hospital-contracted groups, like hospitalists and ER groups, to offer the hospital lower terms.Footnote ¹²⁷

To the extent that these interpretations of recent events are correct, then NPs and PAs have helped hospitals and physician groups remain viable despite the price concessions demanded by insurance companies. Those concessions may, in turn, have tempered the rise in prices paid for health care services and the premiums paid for health insurance. If so, a marginal improvement in access to health insurance and, thus, health care may have resulted.

At present, the only concrete evidence of cost reduction is found in a 2016 study that found that prices for child well-care visits were lower by 3 to 16 percent in states with independent NPs,Footnote ¹²⁸ and another 2016 study finding that clinics with more nonphysicians had “lower prices for office visits.”Footnote ¹²⁹ The impact of NPs on prices is likely to grow as NPs begin setting up independent practices. This tempering of medical price increases improves access to medical care for uninsured middle-class patients, but it helps account for the strong political opposition of the AMA to NP independence.

NPs also increase access by providing crucial staffing for community health centers (CHCs). Community health centers’ reliance on NPs and PAs has increased in recent years,Footnote ¹³⁰ as these clinics have had difficulty recruiting and retaining physicians.Footnote ¹³¹ Today, over half of the primary care positions in CHCs are filled by NPs and PAs.Footnote ¹³² As a result, the rise of NPs and PAs has helped the clinics continue providing care to their uninsured and underinsured patients.

Urgent care clinics and retail clinics also rely heavily on mid-level health care providers. Urgent care clinics offer self-paying patients a lower-cost alternative to an ER visit.Footnote ¹³³ Average ER visits are four to ten times more expensive than urgent care clinics depending on the patient’s condition.Footnote ¹³⁴ Retail clinics also reduce ER visits and are primarily staffed by NPs.Footnote ¹³⁵ By staffing these two kinds of storefront clinics at lower salaries than those of physicians, mid-level medical providers may be keeping retail prices for routine medical care lower than they otherwise would be. To that extent, they are improving access to care for people who are uninsured or have extremely high deductibles. Unfortunately, the magnitude of that impact remains unmeasured.

In the field of law, mid-level legal practitioners have the same potential to generate lower prices for basic services, making those services more accessible to middle-class clients. As with NPs, this beneficial pricing effect can occur regardless of whether the nonlawyer advocates work within a law firm, set up their own practices, or work for a nonprofit.

NPs and PAs have also had a positive impact on the availability of medical care in rural areas. Many studies have found that NPs and PAs are more likely than all physicians except family medicine physicians to practice in rural areas and Health Professional Shortage Areas (HPSAs).Footnote ¹³⁶ Of course, the AMA vigorously denies that NPs are more likely than physicians to work in underserved areas. To prove its case, the AMA has created a geomapping computer program to demonstrate that NPs cluster in “the same geographic locations as physicians.”Footnote ¹³⁷ But the public cannot access this tool.

Finally, NPs are more likely to treat Medicaid beneficiaries.Footnote ¹³⁸ They even improve the willingness of physicians to accept new Medicaid patients.Footnote ¹³⁹

To summarize, NPs and PAs have had a positive impact on access to care for uninsured patients. They do this most dramatically by providing essential staffing for free clinics. They also staff the relatively low-cost urgent care and retail clinics visited by many uninsured and underinsured patients. Furthermore, there are signs that the availability of NPs and PAs is tempering price increases for primary care in general. NPs and PAs have also had a positive impact on the availability of medical care in rural areas. Licensed nonlawyer legal practitioners could have a similar tempering effect on prices for basic legal services. They could also provide a pool of lower-priced practitioners to staff new, innovative clinics in areas like eviction and debt collection where clients lack the funds to hire attorneys.

10.3.1 Practical and Political Barriers

The primary objections are summarized in the committee reports of three states that rejected or tabled proposals for limited license legal professionals – Montana,Footnote ¹⁴⁰ Illinois,Footnote ¹⁴¹ and Virginia.Footnote ¹⁴² My review of these reports shows that critics of nonlawyer licensure offer a few recurrent refrains:

1. 1. Legal representation by nonlawyers will be sloppy. A two-tier system of justice will result.

2. 2. For-profit nonlawyer advocates will not serve underserved or low-income people.

3. 3. Limited license legal practitioners will not be able to earn a living, even if they serve primarily middle-class clients.

4. 4. We already have an oversupply of lawyers. Mid-level licensees will threaten their livelihoods.

In this final section, I examine these concerns, against the factual template that medicine supplies.

The first and most important concern raised by opponents of limited license legal professions is the fear that nonlawyers will provide inferior representation.Footnote ¹⁴³ According to this view, even matters that appear simple can be complex. While the evidence about mid-level medical professionals is reassuring, we know much less about the effectiveness of nonlawyers.Footnote ¹⁴⁴ More research is badly needed.

The research proving that NPs and PAs had outcomes comparable to physicians literally opened doors across the country. It led directly to influential national reports from the Office of Technology Assessment in 1986 and the Institute of Medicine twice in the twentieth century. It even prompted the FTC to question the legality of limitations on medical practice. And it generated an unexpected array of allies across the health care sector.

If law reformers can produce similar proof of the quality of representation provided by nonlawyer advocates, the odds of legislative success will grow dramatically. But doing so will be difficult. Obtaining high-quality outcomes data in the context of small, state-specific nonlawyer programs is challenging.Footnote ¹⁴⁵ One obstacle is the absence of large data sets like the medical records kept by Medicare and the Veterans Administration. Another is the lack of standardization across state reform proposals.Footnote ¹⁴⁶ Innovative ideas will be needed, such as a multistate collaboration using a shared reform model.Footnote ¹⁴⁷ Or collaboration with a large state or federal agency like the Veterans Administration using, for example, specially trained nonlawyers to assist veterans with their claims for benefits. (My law school currently uses supervised student interns to do this work.)

While we wait, the preliminary clues are reassuring. Nonlawyers do nearly as well as lawyers on simple matters.Footnote ¹⁴⁸ Specialized training is crucially important – more even than generalized experience.Footnote ¹⁴⁹ These findings point toward narrowly focused training on routine matters accompanied by clear boundaries on the scope of practice that mirror the training.

Limited licensure advocates can also draft their proposals in ways designed to maximize the odds of good outcomes. At the front end, simplification of judicial forms and procedures would be a wonderful start. And at the tail end, nonlawyers could be required to have in place a preexisting relationship with a practicing lawyer for swift consultations when matters become unexpectedly complex. In medicine, NPs routinely turn to MDs in the most complex cases and internists who are stumped call-in other specialists like cardiologists or urologists. In fact, the NP licensing laws in some states expressly require as much. North Dakota, for example, requires that an NP “recognize individual limits of knowledge, skills, and abilities and plan for situations beyond the licensee’s expertise.”Footnote ¹⁵⁰ And New Hampshire’s statute governing advanced practice registered nurses (APRNs), including NPs, states:

Each APRN shall be accountable to clients and the board:

Lawyers do this, too, but new nonlawyer practitioners may not know the tradition or have the relationships needed to accomplish it. To cure this, establishment of a relationship with a lawyer could be built into clinical training. Adding protective features like these may influence the votes of open-minded judges and legislators.

Finally, law reformers can improve quality control and reassure critics by borrowing from medicine and giving lawyers an oversight role. To keep costs down, one lawyer could be permitted to supervise multiple mid-level providers. This oversight need not be too costly or intrusive; it could occur at the end of each day, much like attending physicians review the charts of residents, or each week just as some supervising physicians meet with collaborating NPs.

The second important objection to the licensure of nonlawyer advocates is the belief that for-profit, mid-level legal professionals will not serve low-income people.Footnote ¹⁵² Here, the absence of an analog to health insurance is crucially important. Fees will have to be paid, and critics fear that they will be too high for low-income clients. According to a dissenting judge on the Washington Supreme Court, Washington’s pilot program was “incompatible with meeting the needs of low-income individuals,” and had “shifted to becoming a moderate means effort.”Footnote ¹⁵³ For many law reformers, this is a major shortcoming.

The problem of retail cost has led some advocates to recommend that the length and cost of training for limited licenses be reduced. This shifts the best medical analogy away from the training of NPs and PAs and toward the training of EMTs and paramedics. Their education and training are much cheaper than that of MDs, NPs, and even RNs. And their entry prerequisites are less demanding. As a result, their pay is lower and their scope of practice more limited. This may align well with some nonlawyer niches being considered by reformers.

But this option faces a couple of obstacles. One is its tension with the goal of high-quality representation. To thread the needle, the training will have to be tightly aligned with the scope of practice, as is true for many mid-level medical professionals. A second problem is that these trained and licensed “legal paramedics” may make less money than an untrained and unlicensed paralegal. If their income drops to that of paralegals, as happened for some mid-level practitioners in Washington,Footnote ¹⁵⁴ then potential license applicants will have no financial incentive to pay the training costs associated with the limited license.Footnote ¹⁵⁵ But if their incomes settle higher, then low-income clients will not be able to afford their services. To serve low-income clients, subsidies will be needed.

Another strategy for surmounting the problem of retail cost is to recruit existing community advocates to become licensed mid-level legal professionals, and then to subsidize their training. This may already be happening informally in the federal agencies that allow nonlawyer representatives to assist claimants. And, in Chapter 1 of this volume, Sandefur and Burnett describe several similar state programs.Footnote ¹⁵⁶ In Delaware and Texas, for example, nonlawyers can represent tenants and landlords. Alaska allows nonlawyer Community Justice Workers to be trained and supervised by Alaska Legal Services Corporation. Most work in remote Alaska Native communities that have no lawyers. Arizona has a Licensed Legal Advocate program for domestic violence cases. In addition, Utah has a legal safe space that it calls a “sandbox.” Programs in the sandbox receive waivers from the unauthorized practice of law prohibitions. One potential advantage of these grassroots programs is their potential, not only to help underserved clients solve their legal problems but also to change their trust in, understanding of, and engagement with the law.Footnote ¹⁵⁷

A third objection raised by critics of limited licenses is that the holders will not be able to earn a living even if they serve primarily middle-class clients.Footnote ¹⁵⁸ This issue did not surface in medicine because that system largely serves patients who have insurance, including Medicaid and Medicare. Consequently, salaries for mid-level medical professionals are good, jobs are plentiful, and there are more applicants for mid-level career programs than there are slots, even though the educational costs are substantial.

Because legal practice lacks any equivalent to health insurance, the financial viability of mid-level practitioners is still an open question. The experience in Washington was an inauspicious start. One review concluded that “[m]ost LLLTs struggle to attract enough clients to sustain a viable business.”Footnote ¹⁵⁹ One barrier is that consumers may be confused about the services that limited license providers are authorized and qualified to perform.Footnote ¹⁶⁰ In addition, many people do not want to involve the formal legal system.Footnote ¹⁶¹ Others “do not understand their issues to be legal, and so do not see them as proper objects of legal action.”Footnote ¹⁶² In many instances, the amounts in dispute don’t warrant hiring a representative.Footnote ¹⁶³

Nevertheless, the universe of underserved middle-class Americans is so vast that the effort to serve them makes sense, even though some trial and error will be necessary to find models that work. The Institute for Advancement of the American Legal System at the University of Denver clearly thinks so.Footnote ¹⁶⁴ It released a report in June 2023 called “Allied Legal Professionals: A National Framework,” containing national recommendations to guide states considering programs to train and license a new tier of “allied legal professionals.”Footnote ¹⁶⁵ The Institute is working with three national paralegal organizations to create this national template. Its summary of the new profession closely resembles that of NPs, and they expressly make that analogy. The proposal contemplates a tier of licensed legal practitioners whose lower training costs (lower than Washington’s) will make their services affordable for middle-class Americans. They recommend independence from attorney oversight, even in court. Their plan targets clients with enough purchasing power to buy lower-cost legal services.Footnote ¹⁶⁶ Because it contemplates the recruitment of paying clients, this proposal will face intense opposition from the bar.

This prospect of competition for clients fuels the last and most incendiary objection to authorizing mid-level legal practitioners. Many members of the bar view the legalization of mid-level legal professionals as a threat to their livelihoods. For them, it is a zero-sum game.

In medicine, the reaction of physicians to the creation of mid-level professions has been dramatically different. In that field, the various tiers of licensed health care professions facilitate the work of physicians. Their presence frees physicians to devote time to services that are more remunerative. For example, PAs can handle post-op clinic visits while the supervising physicians perform more procedures. Hospital nurses can provide the continuous patient care that the admitting physicians require. And insurance pays for it all. In short, the widespread presence of health insurance and the shortage of physicians combine to produce a dramatically different climate for the deployment of mid-level professionals.Footnote ¹⁶⁷ That fabric of cooperation has only recently frayed as NPs and then PAs have begun to seek full independence from physicians and, thus, the ability to threaten the business of physicians.

In the debate over law reform, many members of the bar already see a threat to their business. And they are responding as many physicians have done to the call for full NP independence.

10.3.2 Lessons from the Successful Law Reform Efforts in Medicine

Justice reformers could potentially reduce the pushback from practicing lawyers by borrowing from the initial NP and PA profiles and designing plans that provide some benefit to practicing lawyers. This will be a controversial tactic. But the potential tactical value makes it worth consideration. For example, the practice act could mandate one supervising lawyer for every five community law workers. As noted above, this supervision need not be very expensive or intrusive.Footnote ¹⁶⁸

A second way to borrow from the successful experience in medicine is to create boundaries on the new profession’s scope of practice that reduce the perceived threat to practicing lawyers. Practicing lawyers can help identify the niches that they cannot afford to serve, and their acquiescence will materially improve the odds of legislative success.

Unfortunately, none of this is likely to soften the plight of most unemployed or underemployed lawyers. Indeed, some critics of limited licenses seem to be asking that we put young lawyers to work before adding to the supply of legal practitioners. But these lawyers could already be serving the needs of these clients if they felt they could make a living doing so. Legal services are simply too expensive for a self-pay market. There are no lessons in medicine for solving this dilemma. Some kind of financial assistance will be necessary.

Practicing lawyers and reformers will have their fiercest fights over those clients whose incomes place them near the border between those who can afford to hire a lawyer and those who can’t. The closer that a proposal for nonlawyer licensure comes to that border, the fiercer the opposition will be. And the less critical the new license will be. It would be very helpful to have more information about the characteristics of this boundary territory.

The legislative success of NPs over the past sixty years also suggests one additional tactic that has nothing to do with the merits of the proposal. That tactic is to nationalize the campaign for mid-level lawyer services. That means establishing one or more national organizations whose job it is to doggedly recruit allies, develop and promulgate a consistent narrative, and develop leaders. It can also draft model legislation. The Institute for Advancement of the American Legal System at the University of Denver may be angling for this role.

One of the organization’s jobs should be recruitment of allies in the federal agencies. This “federalizing” strategy proved very beneficial for NPs and PAs. In 1977, the American Nurses Association had its first success in Washington, D.C. Congress passed the Rural Health Clinic Act of 1977 providing funding to increase the use of NPs and PAs working in rural health centers. It required that 50 percent of services in these clinics come from NPs and PAs.Footnote ¹⁶⁹ Next, Elliott Richardson, the Secretary of Health, Education and Welfare, established the Committee to Study Extended Roles for Nurses to consider the feasibility of expanding nursing practice. In 1971, the committee recommended expanding the use of NPs.Footnote ¹⁷⁰ One result was increased federal funding for the training of NPs in areas such as family, adult, and emergency practice.Footnote ¹⁷¹ In 1986, the Office of Technology Assessment published a comprehensive literature review concluding that NPs and PAs in primary and ambulatory care provided care as good as the care provided by physicians “within their areas of competence.”Footnote ¹⁷²

In 1989, President George H. W. Bush signed the Omnibus Reconciliation Act authorizing federal reimbursement for NPs in rural areas outside of health clinics.Footnote ¹⁷³ A decade later, President Clinton signed the Budget Reconciliation Act of 1997, allowing Medicare to pay for NP services regardless of geographic location. In that same year, the Robert Wood Johnson Foundation began to fund Executive Nurse Health Policy Fellowships to place nurses in positions of policy leadership at the state and national levels.Footnote ¹⁷⁴

In 2010 the Institute of Medicine published an influential report called The Future of Nursing in which it recommended expanded NP scope of authority.Footnote ¹⁷⁵ In 2012, the National Governors Association concluded that NP care was comparable to physician care and called for loosening of restrictions on the practice.Footnote ¹⁷⁶ Two years later, the FTC concluded that restrictions on practice were no longer needed and could be anticompetitive.Footnote ¹⁷⁷

Following enactment of the Affordable Care Act of 2010 and the Future of Nursing, the Robert Wood Johnson Foundation allied with the AARP to launch The Future of Nursing: Campaign for Action, a nationwide initiative for state law reform.Footnote ¹⁷⁸ As noted above, NPs now have full practice authority in the majority of states.

In a similar vein, today’s law reformers can build on the federalizing efforts that others have already begun. Several federal agencies have welcomed nonlawyer representatives who assist beneficiaries who are very often overwhelmed by the bureaucratic process. Much more of that is possible.

Once the effort has allies, a narrative, and great outcomes, the prospects for further reform legislation will be much improved. So too will the odds of funding to subsidize low-income clients.