Legal Challenges Continue in the States

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


he California Society of Anesthesiologists (CSA) has challenged the legality of a December 2004 Statement issued by the California Board of Registered Nursing (Board) that purports to define the scope of practice of a nurse anesthetist. The Statement, “Practice of the Certified Registered Nurse Anesthetist,” would allow nurse anesthetists to practice without supervision and explicitly provides that “acute and chronic pain management services and emergency procedures both inside and outside the operating room suite” are within nurse anesthetists’ scope of practice.

CSA contends that the Statement constitutes a regulation and that the Board did not promulgate such “underground regulation” in accordance with the requirements set forth in the Administrative Procedure Act. California law classifies nurse anesthetists as registered nurses. The complaint alleges that California case law and numerous opinions by the attorney general have upheld the requirement that registered nurses function under the supervision of a physician when administering anesthesia.

The lawsuit seeks a judicial determination and declaratory ruling that the Statement is unenforceable and without legal effect, unless and until such rules are adopted in accordance with the Administrative Procedures Act. CSA contends that a declaration is necessary so that CSA members, hospitals, physicians, other health care providers and patients can determine their rights and obligations with respect to physician supervision and the performance of pain medicine by nurse anesthetists. CSA also seeks an injunction in order to prevent confusion and uncertainty that would result from enforcing rules that allow a nurse anesthetist to independently provide anesthesia and pain management services.

Tennessee: The attorney general approved the office-based surgery rules, which become effective on October 17, 2005. Subsequently, the Tennessee Hospital Association filed a lawsuit against the medical board challenging the Board’s authority to promulgate office surgery rules. The rules provide requirements for Levels I, II, IIA and III surgeries.
Accreditation by the Joint Commission on Accreditation of Healthcare Organizations, the American Association of Ambulatory Surgical Facilities or the Accreditation Association for Ambulatory Health Care is required for offices that provide Level III surgeries. The rules limit Level III surgeries to ASA Physical Status 1 or 2 patients and prohibit Level III surgery on children under age 14. Additionally, 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 also specify requirements concerning liposuction and laser surgery.

Illinois: The Illinois Department of Professional Regulation (IDPR) appealed the lower court’s decision that invalidated rules in the Nursing and Advanced Practice Nursing Act that permitted nurse anesthetists to provide anesthesia only if the surgeon had 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 ambulatory surgical center or to obtain continuing medical education in the delivery of anesthesia. The Illinois State Medical Society, Illinois Society of Anesthesiologists and ASA intend to file an amicus brief in support of IDPR’s appeal. The issue on appeal is whether IDPR has the authority to enforce the physician training requirements set forth in the Medical Practice Act against nurse anesthetists who may be working with physicians who have not met such training requirements.

Office-Based Surgery
Virginia: The medical board deleted language from its original proposal that would have allowed nurse anesthetists to administer a major conductive block for diagnostic and therapeutic purposes in the nonsurgical setting. The office-based surgery regulations currently allow anesthesiologists and nurse anesthetists to administer major conductive blocks in the surgical setting. The medical board’s intent is to clarify that qualified nonanesthesiologist physicians may perform major conductive blocks for therapeutic and diagnostic purposes in the nonsurgical setting without violating the office-based surgery requirement that a separate anesthetic provider administer the anesthesia. The Virginia Society of Anesthesiologists and ASA had submitted joint comments to the Board requesting the Board delete the language pertaining to nurse anesthetists. A 60-day comment period on the amended proposal has not yet been published.