Kentucky Declines to Opt Out

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


After considering an opt-out from the Medicare requirement for physician supervision of nurse anesthetists for more than a year, Kentucky Governor Paul Patton decided it would be “imprudent and precipitous” to opt out. A workgroup convened by the Cabinet for Health Services at the governor’s request had explored thoroughly the ramifications of an opt-out. The Kentucky Society of Anesthesiologists participated in the workgroup and worked hard to ensure a successful outcome. Under Kentucky law, nurse anesthetists in hospitals must be supervised by an anesthesiologist or the operating practitioner; nurse anesthetists in ambulatory surgical centers may administer anesthetics only if acting under the direction of the operating surgeon.

Scope-of-Practice Issues
New Jersey — The New Jersey Association of Nurse Anesthetists has petitioned the Board of Nursing to authorize nurse anesthetists to practice as advanced-practice nurses (APNs) and to grandfather nurse anesthetists who do not hold a master’s degree. The nurse anesthetists are seeking an expanded scope of practice to allow them to practice in collaboration with a physician. Under current state law, nurse anesthetists are required to practice under the direct supervision of an anesthesiologist or an appropriately trained and credentialed physician who is immediately available. These supervision requirements apply for hospitals, ambulatory surgical centers and offices. By contrast, APNs practice in collaboration with plenary licensed physicians under joint protocols. Subject to the joint protocols, agreed to by the APN and the physician, APNs practice with a significant amount of independence and autonomy and have some prescriptive authority. APNs hold a master’s degree and training in pharmacology; nurse anesthetists in New Jersey are not required to have a master’s degree.

The Board of Nursing referred the request to its regulatory committee. The committee is expected to report its recommendations to the full Board of Nursing at the end of July. The New Jersey State Society of Anesthesiologists has provided comments to the Board of Nursing opposing the petition on patient safety grounds and pointing out that it is contrary to rules requiring physician supervision as promulgated by the Department of Health and Human and Senior Services and the New Jersey Board of Medical Examiners.

Montana — The Montana Society of Anesthesiologists (MSA) has filed a lawsuit against the Montana Board of Nursing. The lawsuit challenges the board’s amendments to the administrative rules allowing nurse anesthetists to practice independent of a physician. MSA alleges that the board does not have the statutory authority to define the scope of practice for nurse anesthetists and that it violated the Administrative Procedures Act in enacting the amendments. MSA also challenges the board’s recommendations that the governor opt out of the Medicare physician supervision requirements on the grounds that the board violated the state’s open meetings/public participation requirements.

The Montana hospital regulations have been amended. Prior to the amendment, the hospital regulations incorporated the Medicare Conditions of Participation as adopted in 1995 and as such required physician supervision. The amendment incorporates the Medicare Conditions of Participation as adopted in 2002, allowing for an opt-out of the supervision requirement.

Professional Liability Reform
Texas — Governor Rick Perry signed a comprehensive medical liability reform bill into law in June. H.B. 4 limits noneconomic damages by capping the award against all health care providers at $250,000 as well as an additional $250,000 that may be awarded against a health care institution. A plaintiff could potentially recover up to $750,000 if more than one health care institution is found liable for the plaintiff’s injuries. Texas courts have previously ruled that caps on awards are unconstitutional. In September, voters will be asked to approve a constitutional change to make the caps on awards legal. Plaintiffs will still be able to recover all economic damages and, if a jury unanimously agrees, may recover punitive damages. The law also requires that physicians serving as expert witnesses must be practicing medicine.