New Jersey Supreme Court Unanimously Upholds Office-Based Surgery Regulations

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


fter seven years of legal challenges, the New Jersey Supreme Court unanimously affirmed the Appellate Division’s decision and held that the office-based surgery regulations were within the New Jersey State Board of Medical Examiners’ (BME) delegated authority. The court agreed with the Appellate Division’s holding that the “administration of anesthesia is, in fact, the ‘practice of medicine’” and that the regulations fall squarely within the BME’s core jurisdiction, the licensing and qualifications of physicians and how they perform their professional services. The court also agreed that while the regulations have an indirect impact on the nurse anesthetists’ profession, the BME is not regulating the nursing profession but rather the physicians who offer anesthesia in an office setting.

The court dismissed the Pine study — the “root of the CRNAs’ argument”— because the study assessed the administration of anesthesia in the hospital setting “where emergency help is always available.” Recognizing the unique nature of the office setting, the court held that the “wealth of testimony adduced at the public hearings on the regulations supported the need for enhanced education and oversight.” Lastly the court recognized the value of having an anesthesiologist involved in the delivery of anesthesia care. It is “fundamentally reasonable that additional education and training would enable anesthesiologists administering or overseeing anesthesia to better protect patients and to respond when complications occur.”

The regulations provide that general or regional anesthesia be administered and monitored by physician privileged by a hospital or BME or a nurse anesthetist under the supervision of a physician privileged by a hospital or BME. The physician who supervises the nurse anesthetist must be physically present and available to immediately diagnose and treat the patient in an emergency without concurrent responsibilities to administer anesthesia or perform surgery other than minor surgery. In addition to the privilege requirement, the physician must also complete at least 60 category 1 hours of continuing medical education (CME) in anesthesia during every consecutive three-year period; for regional anesthesia, at least eight category 1 hours of CME in anesthesia exclusively or as it relates to the physician’s field of practice.

The New Jersey decision also upholds the requirement that conscious sedation be administered by a practitioner (physician or podiatrist) who is privileged by a hospital or BME to provide conscious sedation and who has completed during every consecutive three-year period at least eight category 1 or 2 hours of CME in any anesthesia services, including conscious sedation exclusively or in anesthesia as it relates to the physician’s field of practice. The regulations also provide that conscious sedation be administered by a nurse anesthetist supervised by such physician who is physically present but may be concurrently responsible for patient care; or a registered professional nurse or physician assistant who is trained and has experience in the use and monitoring of anesthetic agents, at the specific direction of a physician who meets the qualifications above, but only for the purpose of administering through an established intravenous line a specifically prescribed supplemental dose of conscious sedation that was selected and initially administered by the physician who remains continuously present in the procedure room.

Practitioners who perform surgery (other than minor surgery) or special procedures must be privileged to perform that surgery or special procedure by a hospital. The practitioner may seek board-approved privileges if the individual does not hold hospital privileges. The regulations require a written transfer agreement with a hospital that can be reached within 20 minutes if the hospital where the practitioner is privileged is not reachable within 20 minutes or if the practitioner is privileged by the board. Additionally any incident resulting in death, transport of a patient to the hospital for a stay of more than 24 hours or a complication or untoward event must be reported to the BME within seven days.

New Jersey Association of Nurse Anesthetists, Inc. v. New Jersey State Board of Medical Examiners can be found at <www.judiciary.state.nj.us/opinions/supreme/a-92-04.pdf>. Lastly Ervin Moss, M.D., Executive Medical Director of the New Jersey State Society of Anesthesiologists, deserves tremendous credit for this huge victory for patient safety. Without his perseverance, dedication and tireless efforts, this ruling would not have been possible. Congratulations!

Opt-Outs
Montana and Wisconsin opted out of Medicare’s physician supervision requirements. Montana Governor Brian Schweitzer withdrew the May 2, 2005, request to opt in to the supervision requirements. To date 14 states have opted out: Alaska, Idaho, Iowa, Kansas, Minnesota, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, Montana, South Dakota, Washington and Wisconsin.

Pediatric Guidelines
This spring Minnesota joined California as state component societies that have adopted a set of guidelines addressing the perioperative care of children. The Minnesota guidelines, like those in California, are intended to provide a framework for high-quality care of children and include recommendations for credentialing of providers and facilities, stratification of risk among pediatric patients and suggestions for necessary equipment and services.

Over the past several years, similar recommendations have been adopted by a variety of groups beginning with the American Academy of Pediatrics, the Society for Pediatric Anesthesia and the Federation of European Associations of Paediatric Anaesthesia. The ASA Committee on Pediatric Anesthesia also has distributed similar recommendations in the form of a pamphlet.

Guidelines such as those adopted in Minnesota were created in response to an increasing recognition of the unique perioperative risks experienced by pediatric patients, especially the very young.

Questions about the Minnesota guidelines may be directed to Randall P. Flick, M.D., Department of Anesthesiology, Mayo Clinic, 200 First St., S.W., Rochester, MN 55905; <flick.randall@mayo.edu>.