Montana Opts In!

Lisa Percy, J.D., Manager
State Legislative and Regulatory Issues


ontana becomes the first state to opt in to the requirement by the Centers for Medicare & Medicaid Services (CMS) for physician supervision of certified registered nurse anesthetists. Former Governor Judy Martz opted out in January 2004. Governor Brian Schweitzer submitted a letter to CMS that withdraws Montana’s previous request for exemption. The opt-in became effective on May 2, 2005.

The governor’s decision to opt in was based on the “best interest of the citizens of Montana to follow the requirements regarding the delivery of anesthesia services that have been in place since the inception of the Medicare and Medicaid programs.” The federal regulations were amended in 2001 to allow a governor to opt out of the physician supervision requirement. To opt out, a governor must consult with the boards of medicine and nursing on issues related to access to and the quality of anesthesia services, conclude that an opt-out is in the best interest of the state’s citizens and is consistent with state law. The rules also provide that a governor may at any time withdraw the request for exemption, which is effective upon submission. To date 12 states (Alaska, Idaho, Iowa, Kansas, Minnesota, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Dakota and Washington) have opted out.

AA Licensure
Clearing the final hurdle, the District of Columbia’s anesthesiologist assistant (AA) licensure bill was approved by Congress. This law authorizes AAs to practice under the supervision and direction of an anesthesiologist. AAs currently practice under the delegatory authority of an anesthesiologist. The District of Columbia Society of Anesthesiologists, in conjunction with the Medical Society of the District of Columbia and assistance from ASA, worked with the bill’s sponsor to remove the dual physician assistant/AA certification requirement.

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 is instructed to submit guidelines to the Medical Board that license and regulate AAs. The committee’s guidelines replace existing guidelines that were adopted by the medical board in 2002. The supervision ratio is 1:3 under “normal circumstances” and 1:4 during emergencies and requires the supervising anesthesiologist to be personally present during induction and emergence.

Legislative Conference
Several years ago, ASA asked each component society to select a legislative chair, an individual whom ASA could contact for information and assistance with state legislative and regulatory issues.  Due to its success, the 2004 House of Delegates formalized this group of what are now called “Component Members” and incorporated them into the Committee on Governmental Affairs. Component society presidents whose states had multiple legislative chairs were asked to appoint one Component Member. The inaugural meeting of this group was held during the 2005 Legislative Conference on May 2-4 in a State Leadership Forum. Members were divided by regional caucus to discuss three issues — scope of practice, medical litigation reform and third-party payers — and reported their findings to the entire group.

Scope of Practice
Each caucus devoted a significant amount of time on scope-of-practice issues. Component societies opposed legislation introduced this session that would remove physician supervision of nurse anesthetists (Arkansas) as well as legislation that would grant advanced practice nurses prescriptive authority, including Schedule II controlled substances (Missouri, Washington).

Component societies also are challenging the use of propofol by nonanesthesia professionals and the attempts by nurse anesthetists to practice pain medicine (California, Rhode Island).

Medical Litigation Reform
While the approach to medical litigation reform varies among states, this issue continues to be a concern among caucus members. Each caucus reported on legislation that would provide for alternative reforms to caps on noneconomic damages.

Legislation in Rhode Island would reduce the rate of prejudgment interest assessed on medical liability awards. This legislation also would lower the statute of limitations tolling period for minors to age eight; provide that interest on malpractice awards would not begin to accrue until the suit was filed; and would require that a certificate of merit accompany each claim for damages.

Anesthesiologists from Pennsylvania discussed how provider shortages in other medical specialties (i.e., neurosurgery, obstetrics) resulting from the medical litigation crisis have affected anesthesiologists. Texas reported working with the medical board to address variations by insurers with respect to liability coverage requirements. Some states reported that medical litigation reform will be addressed as ballot initiatives (Oregon, Washington); for others, reform will probably involve the judicial system (Illinois).

Lastly, states in the Midwest caucus that have Medical Injury Compensation Reform Act, or MICRA-style laws, expressed concern about the effect that federal legislation might have on existing law (Michigan, Wisconsin). Arizona, Georgia, Maryland, Missouri, Montana and South Carolina provided a summary of medical litigation reform legislation enacted in their states this year.

Third-Party Payers
Legislative efforts to prohibit balance billing have become a major issue for states in the Western Caucus (California, Colorado, New Mexico and Texas). Alabama reported that the component society worked with pain physician groups to assist in the development of a cost allowance system for pain procedures performed in the office setting. A reimbursement proposal for office pain procedures was adopted in April. Each caucus also reported how state budget deficits have negatively affected Medicaid reimbursement rates.