In my previous column (“Populists v. Consumers“), I suggested that “regulation” and “consumer protection” meant the same thing. That was a slight oversimplification. Regulation is supposed to mean the same thing as consumer protection, but sometimes it falls short of that ideal. In the absolute worst instances, regulators are so thoroughly captured by the interests they regulate that they create regulations more likely to harm consumers than help them. A good example at the state level surfaced on Nov. 3 when the Federal Trade Commission’s Office of Policy Planning sent a letter to Patricia Shaner, general counsel for Alabama’s State Board of Medical Examiners. The FTC was troubled by a regulation that Alabama’s state medical board proposed in July stating, “The interventional treatment of pain may be performed and provided only by qualified, licensed medical doctors and doctors of osteopathy” because it “constitutes the practice of medicine.” The purpose of the proposed rule is to prevent nurse practitioners from doing something they’ve been doing in most states for a very long time: managing patients’ pain.

The Alabama medical board’s justification for proposing the rule is that allowing “unqualified providers” to perform interventional pain management (a category that includes “needle placement to inject drugs” through the skin, epidural injections, and injection of analgesics and anesthetics, among other procedures) “presents serious risk to patients, such as persistent or worsened pain, bleeding, infection, nerve damage, brain damage, paralysis or even death.” Sounds scary, right? But as the FTC noted in its letter, Alabama has a category of nurse called a Certified Registered Nurse Anesthetist. CRNAs are trained and state-certified to perform the very tasks that the state now proposes to restrict to medical doctors. Delegating this task to nurses is hardly unusual; as anyone who’s been in a hospital lately knows, it is nurses, not doctors, who typically manage pain. Doctors tend to regard pain and its treatment as a bit … pedestrian. It really only interests them as a diagnostic indicator. You want somebody to make the pain stop right away, call the nurse.



My wife died six years ago after a long illness. During one hospitalization she told a doctor making the rounds that she was in pain. The doctor replied with a lengthy monologue about what she might expect to feel after her recent procedure, and ended with the admonition that if she experienced any pain whatsoever she should be sure to tell him. An awkward silence ensued. Finally, the nurse chimed in: “She just did.”



There is one category of doctors who are very interested in pain: anesthesiologists. Anesthesiologists typically enjoy predictable work schedules and earn a mean income of $211,750, compared with $63,750 for registered nurses. A study by the Lewin Group found that allowing CRNAs to provide anesthesia was especially cost-effective in rural places like … Alabama. Unsurprisingly, the Alabama medical board’s proposed rule arose from a complaint by an anesthesiologist about a “disturbing situation occurring in several facilities in Alabama where … [a CRNA] was providing epidural steroid injections to patients.” The anesthesiologist claimed this practice threatened patient safety and asked the Alabama Board of Nursing to stop it. The state nursing board ruled that the anesthesiologist appeared to have an economic interest in preventing nurses from performing these procedures, said the nurses were authorized to perform them and had been doing so for some time, and told the anesthesiologist to buzz off. The spurned doctor got a more sympathetic hearing from the more physician-centric State Board of Medical Examiners.

As the FTC letter notes, in proposing its pain rule, the Alabama medical board cited no evidence that letting nurses perform the tasks under discussion posed any dangers to patients. What evidence it could find pointed the other way. Earlier this year, the peer-reviewed journal Health Affairs ran an article under the self-explanatory headline “No Harm Found When Nurse Anesthetists Work Without Supervision By Physicians.” The article drew on the experience of 14 states that let nurse anesthetists work unsupervised by doctors when treating Medicare patients. (The Medicare program has allowed this since 2001, provided the state’s governor requests a waiver. According to the Health Affairs article, anesthesiologists successfully fought a version of this rule that didn’t require the governor’s involvement.)

The notion of allowing nurses and doctors’ assistants to perform routine medical tasks in order to reduce medical costs and make certain services more widely available is controversial only to the particular doctors whose economic interests are at stake (and not even always to them). It has no discernable left-right valence, and the FTC has promoted it under presidential administrations both Democratic and Republican. In 2002, for instance, it sued the South Carolina Board of Dentistry when the dental board wouldn’t allow hygienists into schools to clean and apply sealants to the teeth of low-income children (a group in whom dentists typically show little interest). The dental board signed a consent agreement five years later. George W. Bush, no regulatory zealot, was in the White House the whole time. When politicians get involved in such fights, the usual reason isn’t ideology, but campaign contributions or electoral support from the affected doctors.



Under Obamacare, the need to curb medical inflation will be more urgent than it’s been in the past, and almost none of the proposed solutions is as uncontroversial as letting nurses treat pain. But as the Alabama example demonstrates, some government agencies put interest-group needs ahead of consumers’, and will throw up regulatory barriers to protect them.

Update, Nov. 12: This column has inspired more than the usual number of critical comments (see below), many from sensible-sounding people. Having reviewed these and then taken a second look at the above, I conclude that while I committed no errors that I know of, I let my readers down in three ways.

First, I should have made clear that while CRNAs are competent to do many things that anesthesiologists do, they are not necessarily competent to do everything that anesthesiologists do. (Even the Alabama nurse’s board said CRNAs should not be permitted to make medical diagnoses, and admitted some doubt as to whether CRNAs could handle spinal facet joint injections.)I thought this point would be self-evident,but it wasn’t.

Second, I should have clarified the distinction between “non-interventional” pain management such as administering pills, which goes unaddressed in the Alabama medical board’s proposed rule, and “interventional” pain management, the somewhat more complicated procedures under discussion here.

Third, I shouldn’t have compared the median salary for anesthesiologists ($211,750) with the median salary for registered nurses ($63,750). I should have compared the median salary for anesthesiologists with the median salary for CRNAs, a subset of registered nurses who have received specialized training. In my own defense, I was unable to find such a figure from the Bureau of Labor Statistics. But one commenter dug out an average salary figure of $189,000 from a 2009 survey by Merritt Hawkins & Associates, a health care consulting firm. Mindful that medians vs. averages constitute a poor basis for comparison, I nonetheless concede that if the average salary for CRNAs is $189,000 then the median CRNA salary is probably well into the six figures. The larger point remains. CRNAs make less money than anesthesiologists ($189,000 is less than $211,750), as you’d expect. So allowing CRNAs to perform more tasks performed by anesthesiologists would save money.

Update, Nov. 18: The Alabama State Board of Medical Examiners has “indefinitely postponed” the proposed rule, according to the Nov. 17 Birmingham News, pending completion of two national studies.