S. Diane Turpin, J.D., Assistant Director
Office of Governmental Affairs (State)


Some important events occurred at the end of 2002 that cannot be overlooked even though the 2003 legislative sessions have begun and raise new challenges. New Jersey struck another decisive blow for patient safety, and the District of Columbia recognized anesthesiologist assistants (AAs). That is the good news. Montana, meanwhile, continues to work to retain the requirement for physician supervision of nurse anesthetists.

The New Jersey Board of Medical Examiners adopted the last piece of the office-based surgery regulations in December. This final rule establishes a mechanism by which physicians who do not hold hospital privileges may apply to the Board to obtain privileges to perform surgery or administer anesthesia in the office setting. This “alternate pathway” was several years in the making. Under the rule, physicians who do not have hospital privileges will provide the Board with documentation of competence, training and clinical experience to obtain privileges to perform surgery or special procedures and/or to administer or supervise the administration of general and regional anesthesia and sedation analgesia. Physicians have until December 16, 2003, to make an initial application to the Board.

In addition, the New Jersey Department of Health adopted final regulations relating to surgery, anesthesia and postanesthesia care in ambulatory care facilities and hospitals. These regulations continue to require that a nurse anesthetist be supervised by a physician who is an anesthesiologist or who is privileged by a hospital to manage anesthesia.

The New Jersey State Society of Anesthesiologists (NJSSA) worked for years to achieve regulations designed to ensure the safety of patients undergoing anesthesia in all settings. Nurse anesthetists sought in every instance to eliminate the requirements for anesthesiologist supervision. As the Board of Medical Examiners stated in written comments in the regulations, “It continues to be the Board’s view that the administration of anesthesia is the practice of medicine and, as such, physician direction is required and appropriate. Physicians supervising anesthesia practice must be knowledgeable and competent to ensure patient safety.”

The Montana Board of Nursing adopted regulations defining nurse anesthetists as “independent and/or interdependent” practitioners. The regulations, under consideration for several months, appear to be the nurse anesthetists’ initial attempt to pave the way for an opt-out of the Medicare physician supervision requirement. Although the nursing regulations have been amended, an opt-out is not permissible since Montana’s existing state law incorporates the 1995 Medicare Conditions of Participation, which require physician supervision of nurse anesthetists, as the minimum standard for hospitals. Legislation is expected to be introduced this session to define the scope of practice of nurse anesthetists, and it is likely that the hospital regulations will be considered as well. The Montana Society of Anesthesiologists continues its work to maintain the physician supervision requirement.

After months of review and discussion, the District of Columbia Board of Medicine adopted guidelines for the practice of AAs. Anesthesiologists in the District of Columbia worked tirelessly to advance this cause. Meanwhile, nurse anesthetists opposed allowing AAs to practice in D.C. The guidelines allow for the supervising anesthesiologist to delegate functions and duties to AAs. AAs are permitted to administer anesthesia under the direction of a supervising anesthesiologist who is present in the operating suite. Except under emergency circumstances, the supervising anesthesiologist may not concurrently direct more than a total of four nurse anesthetists, AAs and/or residents.

It is important to note that the 2003 legislative sessions have begun in most states with budget challenges at the top of the agenda. Most states have already cannibalized the rainy day funds, imposed across-the-board cuts and squeezed every last dime out of a one-time fix. Now more long-term solutions must be created to deal with the financial problems.

A lot of new faces are charged with “fixing” the problems — almost half of the governors and almost one-fourth of all state legislators are new to their offices. In addition to dealing with budget problems, homeland security and an increasing concern for the availability of health care in their states, these officials will undoubtedly be approached by nurse anesthetists in search of independent practice. Just as anesthesiologists convinced the New Jersey Board of Medical Examiners that there is a difference between a physician and a nurse, we must now ensure that governors and legislators also know there is a difference.