ASA April 2003 Newsletter

Colorado Files Suit to Block an Opt-Out

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

The Colorado Society of Anesthesiologists (CSA) has filed a lawsuit to prevent an opt-out of the Medicare rule requiring physician supervision of nurse anesthetists. Governor Bill Owens is the defendant.

Under Colorado law, the delivery of anesthesia care by nurse anesthetists is a delegated medical function that must be performed under physician supervision. The Nurse Practice Act defines a “delegated medical function” as “an aspect of care which implements and is consistent with the medical plan as prescribed by a licensed or otherwise legally authorized physician, podiatrist or dentist …” [C.R.S. Section 12-38-103(4)]. A “medical plan” means a written plan, verbal order, standing order or protocol, whether patient-specific or not, that authorizes a specific or discretionary medical action, which may include but is not limited to the selection of medication.” The Nurse Practice Act, in its definition of “treating,” also specifies physician direction and supervision of a nurse’s performance of delegated medical functions.

“Treating” means the selection, recommendation, execution and monitoring of those nursing measures essential to the effective determination and management of actual or potential human health problems and to the execution of the delegated medical functions. Such delegated medical functions shall be performed under the responsible direction and supervision of a person licensed under the laws of the state to practice medicine, podiatry and dentistry.

Furthermore, the regulations of the Colorado Department of Public Health and Environment governing the licensure of general hospitals require physician supervision of nurse anesthetists in certain cases. General or regional anesthesia shall be administered only by a physician qualified by training, experience and ability in anesthesiology or a registered nurse anesthetist graduated from a certified school and who is under the supervision of the attending physician [6 CCR 1011-1, page 26 (emphasis added)].

In spite of these physician supervision requirements under state law, the Colorado Board of Nursing has consistently stated, without pointing to any legal authority, that the delivery of anesthesia care, including the selection and administration of anesthetic agents, is the independent practice of nurse anesthesia. Governor Owens apparently agrees with this interpretation. His February 4, 2003, letter to the State Board of Medical Examiners (BME) and Board of Nursing (BON) proclaimed: “It is my understanding that the Colorado Nurse Practice Act allows [nurse anesthetists] to practice without direct supervision from a physician.” His letter also stated, “I am of the opinion that opting out of the federal supervision rules could help ensure the affordability and accessibility of anesthesia services in rural areas without sacrificing the quality of care patients receive.” Governor Owens’ letter stated that he intended to opt out on March 4 unless the boards provided compelling arguments against it. The governor asked the boards to address whether the opt-out was consistent with state law and whether it was in the best interests of the state’s residents.

The BME considered the governor’s request on February 13, 2003. CSA presented testimony in opposition, pointing to both patient safety concerns and state law requirements. The nurse anesthetists, some rural hospitals and some rural surgeons presented testimony in favor of the opt-out.

The 13-member Board, on a 5-4 vote, agreed to support an opt-out. In a letter to the governor dated February 24, 2003, the President of the BME wrote that the Board found an opt-out consistent with the Medical Practice Act but did not review any other state laws that might be relevant to the issue. The BME agreed that opting out would be in the best interests of the state’s residents.

The letter further stated: “The position to support opting-out was by no means a consensus of the Board, passing by only a 5-4 vote. The key issues dividing the Board involved whether this action would result in a decrement in the quality of anesthesia care provided to Colorado residents, compared to whether this action was necessary to improve or assure access to anesthesia care in rural Colorado. Certainly, I do not feel the Board had access to sufficient evidence to provide you with a compelling argument for or against such action.”

On February 27, 2003, the BON, by a vote of 8-0, supported the opt-out in spite of the legal arguments presented by CSA regarding the supervision requirements in state law.

That same day, CSA filed a complaint for declaratory judgment against Governor Owens. In essence, the lawsuit alleges that in order for the governor to opt out, such action must be consistent with state law. CSA is seeking the entry of a declaratory judgment that Colorado law requires nurse anesthetists to work under the supervision of physicians; the entry of a declaratory judgment that the Governor’s letter to the Centers for Medicare & Medicaid Services (CMS) purportedly exercising the opt-out provision and the attestation contained therein is inconsistent with, and contrary to state law, and ineffective; and the entry of a permanent injunction compelling the governor to rescind such letter to CMS.

Colorado is the only state with clear physician supervision requirements to attempt to opt out of the Medicare requirements.

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