Selected 2003 State Activities

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


Opt-Outs
After a protracted consideration, Kentucky decided opting out of the Medicare rule requiring physician supervision of nurse anesthetists was not in the best interests of its citizens. Kentucky joins Wyoming as the two states that have declined to exercise the opt-out after consulting with the medical and nursing boards. Missouri, Ohio and Texas, without engaging in the “opt-out process,” have indicated they do not intend to opt out.

Alaska, Kansas, North Dakota and Washington opted out in 2003. They join Idaho, Iowa, Minnesota, Nebraska, New Hampshire and New Mexico as opt-out states. The issue remains under consideration in Colorado and Montana. Colorado Governor Bill Owens’ goal of opting out was stalled when the Colorado Society of Anesthesiologists filed suit seeking the entry of a declaratory judgment that 1) state law requires nurse anesthetists to work under physician supervision; 2) an opt-out is inconsistent with and contrary to state law; and 3) compels the governor to rescind any letter exempting nurse anesthetists from physician supervision. Subsequent to the filing of the lawsuit, the Board of Health eliminated the hospital requirements for physician supervision of nurse anesthetists who administer general or regional anesthesia. In October the court ruled that the case was not yet ripe for consideration as the governor has yet to take formal action to opt out.

Montana Governor Judy Martz has indicated support for an opt-out. Hospital regulations that incorporated the 1995 Medicare Conditions of Participation that required physician supervision were amended to incorporate the 2002 Conditions of Participation that permit governors to opt out of the requirement. In anticipation of the amendments to the hospital regulations, the Montana Society of Anesthesiologists (MSA) offered legislation to amend the Nurse Practice Act to require physician supervision of nurse anesthetists. The legislation did not pass. MSA also has filed a lawsuit against the Board of Nursing related to the board’s actions in amending the nursing regulations last year to allow nurse anesthetists to practice independently. The litigation continues.

Nurse Anesthetists’ Scope-of-Practice Issues
Missouri — Legislation was passed to require nurse anesthetists to practice under the supervision of the operating practitioner or anesthesiologist who is readily available. The previous law required nurse anesthetists, in order to perform medical functions such as the administration or dispensation of drugs or the provision of treatment, to be delegated authority by a physician pursuant to a written collaborative practice arrangement.

New Jersey — The Board of Nursing has granted a petition by the nurse anesthetists to authorize them to practice as advanced practice nurses (APNs) and to grandfather nurse anesthetists who do not hold a master’s degree. As APNs, nurse anesthetists presumably would be permitted to practice in collaboration with a physician. Under current state law regarding the practice of nurse anesthetists in all settings, however, they are required to practice under the direct supervision of an anesthesiologist or an appropriately trained and credentialed physician who is immediately available.

Anesthesiologist Assistants (AAs)
District of Columbia — The Board of Medicine adopted guidelines for the practice of AAs, allowing 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.

Missouri — Governor Bob Holden signed H.B. 390, licensing AAs to practice. AAs may assist the supervising anesthesiologist in developing and implementing an anesthesia care plan. AAs are authorized to obtain a comprehensive patient history; pretest and calibrate anesthesia delivery systems; assist with the implementation of medically accepted monitoring techniques; establish basic and advanced airway interventions; administer drugs, blood, blood products and supportive fluids; and assist with the performance of epidural and spinal anesthetic procedures and other regional anesthetic procedures. The medical board has determined that AAs may practice pursuant to the delegatory authority of an anesthesiologist pending promulgation of the regulations.

New Mexico — S.B. 73 was signed into law to increase the supervision ratio for AAs to 1:3 and allow international-certified anesthesiologists to supervise AAs. The law also allows AAs to obtain a comprehensive patient history and perform a physical examination and present findings to the supervising anesthesiologist who must conduct a preanesthetic interview and evaluation. The Board of Medical Examiners adopted regulations to require the supervising anesthesiologist to submit a plan for providing enhanced supervision during an AA’s first year of practice.

Ohio — The Medical Board approved regulations relating to the practice of AAs. The rules require the supervising anesthesiologist to establish a written practice protocol and to provide direct supervision in the immediate presence of the AA. AAs are permitted to practice only in hospitals and ambulatory surgical facilities. The regulations set forth the scope of practice and allow AAs to assist anesthesiologists in performing epidural and spinal anesthetic procedures and invasive monitoring techniques but prohibit AAs from performing epidural and spinal anesthetic procedures and invasive monitoring techniques.

An Ohio AA filed a lawsuit against the Medical Board challenging the prohibition on epidural and spinal anesthetic procedures and invasive monitoring techniques. The court granted a temporary restraining order suspending this portion of the regulation. The lawsuit turns on the meaning of the word “assist” as used in the statutory language. Plaintiff argues “assist” means “perform procedures.” The litigation continues.

Vermont — Governor Jim Douglas signed S.B. 144 into law, allowing AAs to practice under the direction and supervision of an anesthesiologist who is readily available at the facility for consultation and intervention. The proposed regulations require the supervising anesthesiologist to personally participate in the most demanding procedures, including induction and emergence. The proposed regulations would allow AAs to obtain a patient history; pretest and calibrate anesthesia delivery systems; monitor, obtain and interpret information; establish basic and advanced airway interventions (intubation of trachea and ventilatory support); administer vasoactive drugs, anesthetic drugs and regional anesthetics; provide assistance to cardiopulmonary resuscitation teams in response to life-threatening situations; and prescribe perioperative medication used in the facility.

Office-Based Anesthesia
Illinois — The nurse anesthetists’ litigation challenging the office-based surgery regulations that require surgeons to have certain continuing medical education (CME) credits in anesthesia to supervise nurse anesthetists continues.

New York —The litigation brought by the nurse anesthetists over the Department of Health’s office-based surgery guidelines continues.

North Carolina — The Medical Board adopted a position statement addressing office-based surgery guidelines. Physicians who perform procedures requiring anesthesia in an office should be credentialed to perform the procedures by a hospital or ambulatory surgical center or should comply substantially with board criteria. Physicians should assure a transfer protocol is in place, preferably with a hospital licensed in the same jurisdiction and within reasonable proximity. A physician should remain physically present during the intraoperative period and be immediately available for diagnosis, treatment and management of anesthesia-related complications or emergencies. A physician is responsible for the supervision of anesthesia care.

The Board of Nursing filed a lawsuit in August seeking to overturn the position statement because it objects to the requirement for physician supervision of nurse anesthetists. The litigation continues.

Ohio — The Medical Board adopted regulations regarding office-based surgery, effective January 1, 2004. Liposuction procedures performed under tumescent local anesthesia are subject to the regulations as are procedures or surgery utilizing moderate sedation/analgesia, deep sedation/analgesia, regional or general anesthesia. Offices must be accredited within three years, and physicians must report adverse incidents.

Nurse anesthetists are required to be supervised by a physician. Physicians must have certain anesthesia qualifications regardless of whether a nurse anesthetist or anesthesiologist administers the anesthesia. A physician performing surgeries or procedures using moderate sedation/analgesia must either hold privileges to provide same in a local accredited hospital or licensed ambulatory surgical facility or must complete at least five hours of category 1 CME related to the delivery of moderate sedation/analgesia. A physician performing surgeries or procedures using deep sedation/analgesia, regional or general anesthesia must hold privileges to provide same in a local accredited hospital or licensed ambulatory surgical facility, or must complete an accredited residency training program in anesthesia, or must complete at least 20 hours of category 1 CME related to the delivery of anesthesia services.

Virginia — The Board of Medicine adopted office-based surgery regulations effective June 18, 2003. Deep sedation, general anesthesia or major conductive blocks may be administered by an anesthesiologist or nurse anesthetist. Moderate sedation/conscious sedation may be administered by the operating physician with the assistance of a licensed nurse, physician assistant, licensed intern or resident. Physicians administering anesthesia without an anesthesiologist or nurse anesthetist must obtain four hours of CME in topics related to anesthesia each biennium. Incidents resulting in death within the 72-hour postoperative period or transport to a hospital for a stay exceeding 24 hours must be reported to the board within 30 days. The rules require written transfer agreements with hospitals within reasonable proximity.

Medical Liability Reform
The following bills were signed into law:

Arkansas — H.B. 1038 was signed into law limiting punitive damages to $250,000 or three times the amount of compensatory damages, whichever is greater, but not to exceed $1 million. Modifying the doctrine of joint and several liability, the law limits damages in multiple-defendant cases to actual damages proved against individual defendants, unless one or more of the defendants shows they are unable to pay the full judgment. The law includes a sliding scale whereby the judge could increase the judgment against those defendants who could pay. At the request of either party, the court is required to order periodic payment of damages exceeding $100,000.

Colorado — H.B. 1007 increased the cap on noneconomic damages to $300,000.

Florida — The law caps noneconomic damages at $500,000 for each physician with an aggregate cap of $1 million for all claimants. For hospitals, health maintenance organizations and other facilities, noneconomic damages are capped at $750,000 with an aggregate cap of $1.5 million for all claimants. The cap could be pierced in nonemergency situations, up to $1 million from all physicians regardless of the number of claimants, in cases involving death, permanent vegetative state or other extraordinary circumstances involving catastrophic injuries where a judge determines it would be a manifest injustice not to exceed the cap. For facilities the cap could be pierced up to $1.5 million in these circumstances.

For cases arising from the emergency room, the cap on noneconomic damages is set at $150,000 with an aggregate cap of $300,000; for emergency room facilities, the cap is set at $750,000 per claimant with an aggregate to $1.5 million.

Idaho — H.B. 92 decreased the cap on noneconomic damages to $250,000, adjusted annually. The burden of proof to recover punitive damages is raised to clear and convincing evidence. Punitive damages are limited to the greater of $250,000 or three times the compensatory damages.

Ohio — S.B. 281 established a cap of no more than $250,000 for noneconomic damages or an amount that is equal to three times the plaintiff’s economic loss, to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence. For cases with permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system or permanent physical functional injury that permanently prevents the person from being able to independently care for self and perform life-sustaining functions, noneconomic damages may not exceed $500,000 for each plaintiff or $1 million for each occurrence.

Oklahoma — S.B. 629 caps noneconomic damages at $300,000 in cases for medical services relating to pregnancy, labor and delivery and emergency room patients.

Texas — H.B. 4 places a $250,000 cap on noneconomic damages (regardless of the number of physicians named as defendants) with a $250,000 cap against a single institution and a $500,000 cap on all health care institutions combined. With the passage of Proposition 12, the constitution has been amended to permit the cap on damages thereby eliminating the potential for protracted legal challenges.

West Virginia — H.B. 2122 caps noneconomic damages at $250,000, $500,000 for wrongful death or permanent disability and $500,000 for trauma cases. Jury awards would have to take into account all payments from collateral sources. The law gives physicians a provider tax credit based on their premiums and creates a physicians’ mutual insurance company.