January
2002
Volume 66 |
Number
1
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STATE
BEAT
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| Managing
the Opt-Out Process |
S. Diane
Turpin, J.D.
Assistant Director of Governmental Affairs (State)
TSeveral state
component societies are addressing the issue of state governors
seeking an “opt-out” from the Medicare requirement for
physician supervision of nurse anesthetists. Iowa’s governor
was the first to opt out last month. Component societies are accustomed
to the traditional legislative and regulatory processes whereby
time typically marches slowly, giving all interested parties an
opportunity to weigh in on an issue. That was not the case in
Iowa, nor should component societies expect an opt-out request
to be a drawn-out process. The opt-out process is vastly different
and requires component societies to behave in a different manner.
The opt-out
process is very simple. The governor must consult with the state’s
boards of medicine and nursing regarding access to and quality
of anesthesia services in the state. The governor must determine
that opting out is consistent with state law and is in the best
interests of the citizens of the state. The governor then submits
a letter to the Centers for Medicare & Medicaid Services (CMS)
requesting an opt-out. The opt-out is effective upon CMS’
receipt of the letter.
It cannot
be stressed enough that an opt-out could conceivably occur before
a component society even knows it has been requested. In two cases,
we received approximately 24 hours’ notice of a board of
medicine meeting on this issue.
By now, all
component societies should have contacted the governor’s
office and the board of medicine and asked that it be advised
if the governor is interested in seeking an opt-out. Although
it is hard to fathom that a governor would seek an opt-out without
discussing the issue with both physicians and nurses, component
societies should not rely upon the governor’s staff to initiate
the dialogue. In Iowa, repeated efforts were made to schedule
a meeting with the governor’s staff, to no avail. Once a
governor decides to initiate the “process,” a decision
can be made very quickly.
Before opting
out, the governor must determine that it is consistent with state
law. Simply put, if the state laws and/or regulations require
physician supervision of nurse anesthetists, an opt-out would
not be consistent with state law. The difficulty lies in determining
what state law requires. The American Association of Nurse Anesthetists
relies primarily on the Nurse Practice Act and Board of Nursing
regulations, ignoring other laws and regulations that impact on
the scope of practice of nurse anesthetists. For example, in Montana,
nurse anesthetists have asked the governor to opt out of the physician
supervision requirement. Montana hospital regulations require
that nurse anesthetists practicing in hospitals must be under
the supervision of the operating practitioner or an anesthesiologist
who is immediately available if needed. (See MONT. ADMIN. R. 16.32.320[1]).
These regulations actually incorporate the Medicare Anesthesia
Conditions of Participation as published in 1995. As such, an
opt-out would be inconsistent with state law. Component societies
must understand the laws of their respective states. If an opt-out
is inconsistent with state law, the component society must be
able to explain why. Regardless of the governor’s view on
this issue, no governor wants to act on incorrect or incomplete
information.
The governor
also must determine that opting out is in the best interests of
the citizens of the state. One must wonder how a governor could
make such a determination without considerable public debate on
this issue. Nevertheless, CMS is not going to query the governor
on what steps he or she took to determine “the best interests”
of the public. Component societies must seek to ensure that the
public is advised and has an opportunity to weigh in on this issue.
Office-Based
Anesthesia — One Step Forward, One Step Back
New Jersey
— The board of medical examiners has proposed regulations
to establish a mechanism by which physicians who do not hold hospital
privileges can become “privileged” by the board to administer
and supervise anesthesia or perform surgery or special procedures
in the office setting. Upon final adoption of the proposed rule,
a physician who does not hold hospital privileges must apply for
board privileges no later than one year after the effective date
of the rule. The physician may continue to practice in the office
until such time as the board acts upon the application.
This alternative
privileging process sets forth a number of requirements a physician
must meet to be approved by the board, and the requirements vary
depending upon the type of anesthesia to be provided or supervised
by the physician. A physician (whether privileged by a hospital
or the board) who administers or supervises the administration
of general anesthesia services must, during every consecutive
three-year period, complete at least 60 category 1 hours of continuing
medical education (CME) in anesthesia. A physician privileged
by a hospital or the board to administer or supervise regional
anesthesia must, during every consecutive three-year period, complete
at least eight category 1 hours of CME in anesthesia exclusively
or as it relates to the physician’s field of practice. A
physician privileged by a hospital or the board to administer
or supervise conscious sedation must, during every consecutive
three-year period, complete at least eight category 1 hours of
CME in any anesthesia services, including conscious sedation exclusively
or in anesthesia as it relates to the physician’s field of
practice. A nurse anesthetist must be supervised by one of the
above-referenced physicians.
Minor conduction
blocks, with the exception of retrobulbar blocks, shall be administered
only by a physician or podiatrist, nurse anesthetist, certified
nurse midwife, advanced practice nurse or physician assistant
who has training and experience in the administration of minor
conduction blocks. Retrobulbar blocks shall be administered only
by a physician.
The proposed rule also provides for board-approved privileges
for physicians and podiatrists who perform surgery or special
procedures in the office.
New York
— In a lawsuit brought by the New York State Association
of Nurse Anesthetists, a New York Court ruled that the “Clinical
Guidelines for Office-Based Surgery,” adopted by the State
Department of Health (DOH), are “null and void and of no
force and effect” and prohibited DOH from publishing, distributing
or enforcing the guidelines. The court’s ruling does not
address the merits of the guidelines. The court held that DOH
did not have legal authority to adopt guidelines which, by DOH’s
admission, were intended to be standards to be applied in physician
disciplinary proceedings and would be evidence of local community
medical standards in medical malpractice actions. At this writing,
no decision has been made regarding an appeal.
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