| Summary
of 2004 State Activities
S. Diane Turpin, J.D., Assistant
Director
Office of Governmental Affairs
Opt-Outs
ontana is the only state in 2004
to have opted out of the federal Medicare supervision
requirement. It joins Alaska, Iowa, Idaho,
Kansas, Minnesota, Nebraska, New Hampshire, New
Mexico, North Dakota, Oregon and Washington.
Prior to the opt-out in Montana, the Board of Nursing
adopted regulations that permitted nurse anesthetists
to work “independently and/or interdependently”
with a physician, and the hospital regulations were
amended to incorporate the 2001 Medicare Conditions
of Participation that permit an opt-out. The Montana
Society of Anesthesiologists (MSA) filed a lawsuit
challenging the authority of the Board of Nursing
to expand the scope of practice of nurse anesthetists
beyond the scope permissible in statute. The court
agreed that the board did not have the authority
to promulgate a rule that exceeded its statutory
authority, but held that the underlying statute
did not require physician supervision; therefore,
the board’s action did not expand the nurse
anesthetists’ scope of authority. Following
the trial court’s decision, the governor opted
out. MSA appealed the trial court’s decision,
and litigation continues.
The Colorado Society of Anesthesiologists (CSA)
continues to monitor the possibility of an opt-out
in Colorado. Litigation filed by
CSA to prevent an opt-out was dismissed as not being
ripe because the governor had not opted out. CSA
will have the option of refiling its lawsuit should
the governor opt out.
Nurse Anesthetists’ Scope of Practice
Idaho — As introduced,
H.B. 659 would have permitted independent practice
by most advanced-practice professional nurses, including
nurse anesthetists. The legislation was amended, at
the nurse anesthetists’ request, to retain physician
collaboration for nurse anesthetists. It was signed
by the governor.
Kentucky
— The governor signed H.B. 595 into law establishing
a commission to study whether advanced registered
nurse practitioners (ARNPs) should have prescriptive
authority for Schedule II through V controlled substances.
Nurse anesthetists are categorized as ARNPs and currently
are not required to have prescriptive authority to
administer anesthesia.
Louisiana
— S.B. 644/H.B. 1282 would have repealed the
requirement that nurse anesthetists administer anesthesia
under the direct supervision of a physician or dentist.
The bill died in committee.
Nebraska
— L.B. 1027 would have consolidated the regulation
of four types of advanced-practice nurses (APNs),
including nurse anesthetists, under the Board of Nursing
and would have eliminated the Board of Medicine’s
oversight of these providers. The legislation also
appeared to have the potential to broaden the scope
of practice of nurse anesthetists. The bill died in
committee.
New York —
A.B. 6728/S.B. 2813, introduced on behalf of the anesthesiologists,
would allow for the administration of anesthesia by
a registered nurse anesthetist under the supervision
of an anesthesiologist who is immediately available,
or under the supervision of the physically present
operating physician, or under the supervision of a
dentist, oral surgeon or podiatrist who is physically
present and authorized by law to administer anesthesia.
The terms, “immediately available,” “supervision”
and “physically present” are defined.
The bill applies to hospitals, ambulatory surgical
settings and office settings. A.B. 5021/S.B. 2357,
introduced on behalf of the nurse anesthetists, would
define nurse anesthetists’ practice as the administration
of anesthesia, perianesthetic and clinical support
functions and pain management, at the order of and
in conjunction with a procedure performed by a physician,
dentist, podiatrist or other authorized health care
professional. Nurse anesthetists would have the authority
to select, order, possess and administer, but not
prescribe, drugs.
Pennsylvania
— H.B. 2313, introduced by the nurse anesthetists,
would allow a nurse anesthetist to administer anesthesia
in cooperation with a physician, dentist or podiatrist.
“Cooperation” is defined as each professional
working together contributing expertise at his or
her individual and respective levels of education
and training. Nurse anesthetists must be under the
overall direction of the chief or director of anesthesia
services, provided that in situations or facilities
where anesthesia services are not mandatory, the nurse
anesthetist is under the overall direction of the
physician responsible for the patient’s care.
If the anesthesia team consists entirely of nonphysicians,
the nurse anesthetist shall have available, by physical
presence or electronic communication, an anesthesiologist
or consulting physician of the nurse anesthetist’s
choice.
Rhode Island —
The Department of Health adopted regulations that
would create a new category of APNs, which include
nurse anesthetists. The changes do not expand the
scope of practice of nurse anesthetists.
S.B. 2134 repeals the Nurse Anesthetist Advisory Committee,
which is replaced by the Advanced Practice Nurse Advisory
Committee. A nurse anesthetist is classified as an
APN. The APN committee reviews all complaints regarding
APNs and advises the Board of Nurse Registration and
Nursing Education regarding their practice. Fewer
physicians serve on the APN committee than the nurse
anesthetist committee. The APN committee consists
of one physician, whereas the nurse anesthetist committee
consisted of a surgeon, an anesthesiologist and one
representative of the Rhode Island Medical Society.
This bill became law without the governor’s
signature. Rules implementing this bill have been
proposed.
Virginia — H.B. 602 would permit
podiatrists to medically direct and supervise nurse
anesthetists. The bill was carried over to the next
session.
Office-Based Anesthesia
Florida
— The District Court of Appeal reversed the
ruling of the administrative court and held that the
Board of Medicine’s rule requiring an M.D. or
a D.O. anesthesiologist to supervise the administration
of anesthesia in Level III office surgeries exceeded
the Board of Medicine’s authority. Level III
surgeries include general anesthesia or major conduction
anesthesia and preoperative sedation. Florida statutes
provide that so long as a licensed physician has direct
supervision and control over a registered nurse, the
board may not promulgate rules prohibiting such services
by a registered nurse. While nurse anesthetists are
classified as ARNPs, the court found the board’s
rule requiring anesthesiologist supervision to have
violated such prohibition.
The Board of Medicine’s 90-day emergency moratorium
on liposuction and abdominoplasty within 14 days of
each other on the same patient in an office setting
expired in May. The Board of Medicine and the Surgical
Care Committee will continue to evaluate the need
for a permanent rule prohibiting such procedures.
Illinois — The court invalidated
rules in the Advance Practice Nursing Act promulgated
by the Department of Professional Regulation (DPR)
that permit nurse anesthetists to provide anesthesia
only if the surgeon has training and experience in
anesthesia as set forth in the Medical Practice Act
and to document such training in the written practice
agreement. Although the court invalidated such rules
on the grounds that the requirements exceeded the
department’s authority, the Medical Practice
Act continues to require surgeons who supervise nurse
anesthetists in the office to hold privileges to administer
anesthesia in a licensed hospital or to obtain continuing
medical education (CME) in the delivery of anesthesia.
DPR has asked the court to reconsider its decision.
Indiana — Legislation has been drafted
requiring the Medical Licensing Board to adopt rules
establishing standards for office-based procedures
that require moderate sedation, deep sedation or general
anesthesia. The rules would refer to the American
Medical Association’s Office-Based Surgery Core
Principles <www.ASAhq.org/Washington/
coreprinciples.htm>.
Iowa — H.B. 256 would have
required office-based surgical facilities to obtain
an annual license and would have required the Department
of Inspections and Appeals to promulgate licensure
rules. The bill died in committee.
Kansas
— H.B. 2879 would have directed the Secretary
of Health and Environment to establish standards for
office-based surgery rules and regulations. The bill
died in committee.
Louisiana — The Board of Medical Examiners
adopted office-based surgery regulations, effective
January 1, 2005. Offices accredited by the Joint Commission
of Accreditation of Healthcare Organizations, the
American Association for Accreditation of Ambulatory
Surgical Facilities (AAAASF) and the Accreditation
Association for Ambulatory Health Care (AAAHC) are
exempt from the regulations. The rules also exempt
surgical procedures requiring no anesthesia or those
using only local, oral, topical or intramuscular anesthesia,
those using regional anesthesia (except for those
procedures requiring an epidural or spinal of or near
the central nervous system) or those using conscious
sedation either individually or in combination. An
anesthesiologist or a nurse anesthetist under the
direction and supervision of a physician must administer
the anesthesia. The physician performing the surgery
must have current certification or evidence of completion
of training in advanced cardiac life support (ACLS)
or pediatric advanced life support. The surgeon must
possess current staff privileges to perform the same
procedure at a hospital within reasonable proximity
or be board-certified in a specialty that encompasses
the office procedure and possess current admitting
privileges at a hospital within reasonable proximity.
Adverse incidents specified in the rules must be reported
within 15 days after the occurrence.
New Jersey — The nurse anesthetists
lost their lawsuit against the Board of Medical Examiners
challenging portions of the office-based surgery regulations
requiring physicians who do not hold hospital privileges
to receive privileges via an alternative pathway prior
to providing or supervising the administration of
general or regional anesthesia, conscious sedation
or performing surgery or special procedures. The New
Jersey State Society of Anesthesiologists was granted
the right to intervene in the litigation, and ASA
filed an amicus brief on behalf of the Board of Medicine.
The nurse anesthetists have appealed.
Nurse anesthetists are awaiting the Board of Nursing’s
decision on their petition to be classified as APNs.
If the petition is granted as written, it would appear
to permit nurse anesthetists to work with physician
collaboration as opposed to the direct supervision
of an anesthesiologist or an appropriately trained
and credentialed physician who is immediately available.
The Patient Surgical Safety Act, A.B. 2183, would
require practitioners (physicians and podiatrists)
who perform surgery, special procedures or who administer
or supervise anesthesia in the office setting to be
privileged by a hospital or board of medical examiners
to perform the same. If such hospital is not within
20 minutes or if the practitioner is privileged by
the board, the practitioner must have a transfer agreement
with another licensed hospital within 20 minutes.
The bill has passed the assembly.
New York — The Court of Appeals of
New York (the highest court) reinstated the office-based
surgery guidelines, which had been declared invalid
by the lower courts. The state’s highest court
ruled that the nurse anesthetists lacked standing
to file the lawsuit. The nurse anesthetists objected
to the guidelines’ provisions for physician
supervision.
A.B. 5017/ S.B. 4724 would amend the laws concerning
the Department of Health Statewide Planning and Research
Cooperative System (SPARCS). The regulations governing
SPARCS would require reporting data that identifies
patients transferred, admitted or treated at a hospital
subsequent to office-based surgery. This bill was
amended from the introduced version, which would have
required health practitioners to report all reportable
office incidents to the Department of Health (DOH)
on at least a quarterly basis. The bill passed assembly.
North Carolina — The Board of Nursing
filed a lawsuit alleging that the physician supervision
requirement in the office-based surgery guidelines
violated a 1994 Consent Order involving the Board
of Nursing, Board of Medicine, the North Carolina
Society of Anesthesiologists (NCSA) and the North
Carolina Medical Society regarding nurse anesthetists’
scope of practice. The trial court dismissed the lawsuit.
The Board of Nursing has appealed the ruling. A separate
action filed by NCSA seeks a declaratory judgment
that the Board of Medicine acted within its authority
in adopting the office-based surgery guidelines. The
Board of Nursing has counterclaimed, alleging that
the 1994 Consent Order prohibits the Board of Medicine’s
actions. The litigation continues.
Tennessee — The Tennessee Board of
Medical Examiners adopted office-based surgery regulations,
which are awaiting the attorney general’s approval.
The rules provide requirements for Levels I, II, IIA
and III surgeries. Offices providing Level III surgeries
must be accredited by JCAHO, AAAASF or AAAHC and are
limited to ASA Physical Status 1 or 2 patients. Level
III surgery is prohibited on children under age 14.
An anesthesiologist or nurse anesthetist must administer
general or regional anesthesia. Physicians performing
Level II or IIA surgery must have staff privileges
or a written transfer protocol, while physicians performing
Level III surgery must have staff privileges to perform
the same procedure in a local hospital. The regulations
specify requirements concerning liposuction and laser
surgery. The board anticipates the effective date
to be in spring 2005.
Texas — The Board of Medical Examiners
(BME) withdrew its proposal that would have included
peer review, credentialing, compliance with ASA’s
“Statement on Qualifications of Anesthesia Providers
in the Office-Based Setting” and discharge criteria.
The Board of Nursing opposed the rules on the basis
that the BME should consult with the Board of Nursing
before issuing proposals affecting nurse anesthetists’
scope of practice. The BME plans to issue a new proposal
once it consults with the Board of Nursing.
Washington — The Medical Quality Assurance
Committee plans to develop office-based surgery regulations.
The initial proposal providing for peer review, transfer
agreements, informed consent and discharge criteria
has been drafted.
Anesthesiologist Assistants (AAs)
District of Columbia — The D.C. Council
approved bill 15-634, which would permit AAs to practice
under the supervision and direction of an anesthesiologist.
The bill has been signed by the mayor. The scope of
practice includes obtaining a patient history, pretesting
and calibrating anesthesia delivery systems, assisting
with monitoring techniques, establishing basic and
advanced airway (including intubation and ventilatory
support), administering vasoactive and anesthetic
drugs and assisting with the performance of epidural,
spinal and other regional anesthetics. AAs are prohibited
from prescribing medication or controlled substances.
An advisory committee on AAs will submit guidelines
to the Board of Medicine for AA licensing. The sponsor
amended the bill at its final reading to require a
3:1 supervision ratio under “normal circumstances”
and 4:1 during emergencies and to require the supervising
anesthesiologist to be personally present during induction
and emergence.
Florida
— A three-year effort by the Florida Society
of Anesthesiologists resulted in the governor signing
S.B. 626, licensing AAs to practice under the direct
supervision of an anesthesiologist and in accordance
with a written protocol. The scope of practice includes
obtaining a patient history, pretesting and calibrating
anesthesia delivery systems, assisting with the monitoring
techniques and establishing basic and advanced-airway
interventions (intubation and ventilatory support).
AAs may assist with the performance of epidural and
spinal anesthetic procedures and participate in managing
the patient in the postanesthesia recovery area.
Louisiana — The governor signed H.B.
1290, prohibiting AAs from practicing in Louisiana,
making it the first state to ban AAs. AAs are prohibited
from practicing in Louisiana until it is proven that
they are “viable providers of anesthesia services.”
The health care providers permitted to administer
or select anesthesia either directly or through delegation
are nurse anesthetists, physicians, dentists and perfusionists.
Michigan — S.B. 924 would license AAs
who practice under the supervision of an anesthesiologist
to obtain a patient history, pretest and calibrate
anesthesia delivery systems, assist with monitoring
techniques, establish basic and advanced airway interventions
(intubation and ventilatory support) and assist with
regional anesthesia (including epidural and spinal).
It would create an educational, limited license for
an AA who is not yet certified.
Ohio — A court ruled against the Board
of Medicine and in favor of an AA who sought to overturn
the board’s rule prohibiting AAs from performing
epidural and spinal anesthetic procedures and invasive
monitoring techniques. The lawsuit alleged that the
board’s rule conflicted with a statute allowing
an AA to “assist” with epidural and spinal
anesthetic procedures and invasive medically accepted
monitoring techniques. The lawsuit focused on the
use of the word “assist.” The court held
that “assist” means “carry out.”
By defining “assist” in such manner, the
court held that the statute allows AAs to perform
the procedure that the rule prohibits and that the
board exceeded its delegatory authority in prohibiting
AAs from performing those procedures. The board has
appealed, and the Ohio Society of Anesthesiologists
and ASA have filed amicus briefs on behalf of the
board.
South Carolina — H.B. 4397/S.B. 738
would have included technical corrections to existing
law. The South Carolina Society of Anesthesiologists
supported both bills. They died in committee.
Pain Management
Alabama — H.B. 104 would have created
the Alabama Pain Relief Promotion Act of 2003, which
would have prohibited disciplinary action and criminal
prosecution against a health care provider for the
prescribing, dispensing or administration of medical
treatment for the purpose of relieving pain if it
is demonstrated that the practice substantially complied
with accepted guidelines and standards of practice.
The Pain Management Ad Hoc Advisory Committee would
have studied the use of Schedule II controlled substances
and developed guidelines to establish parameters for
the investigation of a prescriber or dispenser of
such substances for the treatment of pain. The bill
died in committee.
Indiana — H.B. 1128 would have created
the Advisory Council on Pain and Symptom Management
to recommend policies on pain and symptom management
and identify the roles and responsibilities of heath
care professionals in pain and symptom management.
The bill died in committee.
Kentucky — H.J.R. 132 would have created
the Pain Management Task Force to develop recommendations
for policies, regulations or legislation to address
the use of controlled substances and to improve pain
management practice. The bill died in committee.
Mississippi — H.B. 325, the Pain Relief
Act, and H.B. 1530, the Chronic Pain Treatment Act,
died in committee. H.B. 325 would have prohibited
disciplinary action against a provider for prescribing,
dispensing or administering medical treatment for
the purpose of relieving intractable pain if the provider
demonstrated that the practice substantially complied
with accepted guidelines and standards of practice.
H.B. 1530 would have prohibited disciplinary action
against health care providers solely for prescribing
controlled substances for the relief of chronic pain
and would have established criteria for reviewing
the treatment of chronic pain.
New Jersey — The Department of Health
and Senior Services adopted regulations requiring
each health care facility to formulate a system to
assess and monitor pain using a rating scale. Each
facility is required to establish written policies
and procedures governing the management of pain, which
are to be reviewed every three years and updated as
needed, and to have a quality improvement program
to review pain assessment practices.
New Mexico — H.B. 163 would have created
the Pain Management Advisory Council in order to recommend
pain management guidelines for each licensed health
care professional with prescriptive authority. This
bill also would have required pain management continuing
education for all health care providers who have prescriptive
authority and who treat pain. The bill died in the
Senate.
Oklahoma — H.B. 2305 creates the State
Advisory Council on Pain Management to provide advice
and recommendations with respect to pain management
policy, pain management therapies and pain management
education. The Board of Health must promulgate rules
for assessing and documenting pain based on the council’s
recommendations. The bill was signed by the governor.
Tennessee — The Board of Nursing adopted
rules setting forth the circumstances under which
APNs with prescriptive authority who possess a current
Drug Enforcement Administration Certificate to Prescribe
Controlled Substances may prescribe, order, administer
or dispense controlled substances for the treatment
and relief of pain, including intractable pain. While
not specified in the regulations, state law allows
nurse anesthetists who have obtained a Certificate
of Fitness to Prescribe to do so pursuant to physician
supervision. These rules will not take effect until
spring 2005.
Tort Reform
Arizona — The governor signed into
law S.B. 1113, adding health care-related lawsuits
to the class of lawsuits that require expert certification
before a case can proceed.
Colorado
— The Colorado Supreme Court upheld the damage
cap and periodic payment requirement.
Florida — The Florida Medical
Associations’ ballot initiative passed, capping
attorneys’ fees and guarantying that patients
receive at least 70 percent of the first $250,000
of damages and 90 percent of damages exceeding $250,000.
The trial lawyers’ ballot initiative passed,
prohibiting physicians who are found to have committed
medical malpractice (by a final court of law, administrative
agency or binding arbitration) three or more times
from practicing medicine in Florida. A court has blocked
implementation of the initiative. Another ballot initiative
by the trial lawyers also passed, allowing patients
to have access to records of a health care facility’s
or provider’s adverse medical incidents, including
medical malpractice and other acts that have caused
or could cause injury or death.
Iowa — The governor vetoed H.F. 2440,
which would have capped noneconomic damages in medical
liability lawsuits at $250,000.
Mississippi
— The governor signed H.B. 13, capping noneconomic
damages at $500,000.
Nevada
— A ballot initiative to raise the $350,000
cap on noneconomic damages and to strengthen existing
law by eliminating exceptions to the cap passed.
North Carolina — The governor
signed H.B. 669, which provides that apologies by
health care providers for adverse outcomes in medical
treatments may not be admissible as evidence to provide
negligence or culpability in medical malpractice claims.
Oregon — Voters rejected
a ballot initiative that would have placed a $500,000
cap on noneconomic damages.
Wyoming — Voters approved a ballot
initiative to allow the legislature to establish panels
to review medical malpractice cases before they reach
the court and rejected a ballot initiative to authorize
the legislature to limit noneconomic damages.
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