Home > Medical/Health Commentary > There oughtn’t be a [new] law for that

There oughtn’t be a [new] law for that

February 1, 2011 Leave a comment Go to comments

American legislatures have a strange affection for naming laws to have feel-good acronyms that tell you a lot about what its sponsors want it to accomplish, but not a lot about how it will do so. A cynic might remark that a law’s aspirational title will tell you about everything that it won’t do.

So, what should we make of the “Healthcare Truth and Transparency Law” that’s been kicking around the House of Representatives for a few years, only to be noticed by the WSJ Health Blog late last week?

The most recent version of the bill available online is from the last Congressional session, and is only 5 pages long. It prohibits “deceptive or misleading statements [or] acts that misrepresent whether [a] person holds a State health care license, or misrepresent [a] person’s education, training, license, degree, or clinical expertise.” This provision would be enforced by the FTC. It also requires any advertising of personal health care services to specify what license the advertiser holds, and directs the FTC to conduct a study to ascertain the extent and effects of the sorts of misrepresentation that the bill would enjoin.

The American Nurses Association is not a fan, protesting that the act “represents an unprecedented and unnecessary imposition of federal trade law on health care practice,” “fails to provide any evidence of these practices [actually occurring],” and “fails to address the actions and representations of MDs and DOs that fall outside of their education, skills, and clinical training” or “the potential for non-licensed providers to portray themselves as something that they are not.”

To me, these arguments mostly fall flat. The tentacles of federal trade law can already be found everywhere in health care practice, — this would be far from unprecedented — and the text of the bill belies the ANA’s claims that the bill wouldn’t cover misrepresentation by MD/DOs or non-licensed practitioners.

Here’s what I see as the strongest arguments against the law: it would unnecessarily criminalize at the federal level that which is almost certain to be illegal under state law around the country; it would further complicate the already inscrutable maze of federal and state regulations and laws governing the provision of health care services; and it would provide one more well-intentioned and poorly-enforced law upon whose altar to sacrifice even more health care professionals of all stripes. Of course, that the AMA is pushing so hard for it also gives me cause for suspicion.

The ANA’s problem is not that the law does “too much” in the way that they claim. It’s that it doesn’t seem to do anything substantively different from what is already required by state law, medical and nursing boards, and principles of ethics and patient-centred care. The law simply requires what should be considered good practice: patient education, respect for autonomy, avoidance of deceit… all that fun stuff. Unless the ANA decides to oppose the law on the proto-libertarian grounds that I do, I can’t see any other line of argument that doesn’t implicitly repudiate the principle that patients should know who is who and who plays what role in their care.

I understand the need to protect your professional interests. In this case though, the ANA’s position supports the inference that they believe the way to advance the cause and legitimacy of nursing (and advanced practice nurses in particular) is by letting confusion reign. Especially given that this bill has been kicking around for years without successful passage, maybe this is one political fight they should have chosen to ignore.

(a) CONDUCT PROHIBITED.—It shall be unlawful for
4 any person to make any deceptive or misleading state5
ment, or engage in any deceptive or misleading act, that—
6 (1) misrepresents whether such person holds a
7 State health care license; or
8 (2) misrepresents such person’s education,
9 training, degree, license, or clinical expertise.
10 (b) REQUIREMENT TO IDENTIFY LICENSE IN AD11
VERTISING.—Any person who is advertising health care
12 services provided by such person, shall disclose in such ad13
vertisement the applicable license under which such person
14 is authorized to provide such service
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