Louisiana Court Rules on Conflicts Between Nursing and Medical Board Opinions

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


s reported in March, <www.ASAhq.org/Newsletters/2006/03-06/stateBeat3_06.html>, the Louisiana State Board of Nursing unanimously adopted an Advisory Opinion that authorizes a nurse anesthetist to perform pain management procedures. A nurse anesthetist had petitioned the nursing board on whether it is within the scope of practice of a nurse anesthetist to administer certain pain management procedures.

Specifically, the opinion allows a nurse anesthetist “to perform procedures under the direction and supervision of the physician involving the injection of local anesthetics, steroids and analgesics for pain management purposes, peripheral nerve blocks, epidural injections, and spinal facet joint injections when the CRNA can document education, training and experience in performing such procedures and has the knowledge, skills, and abilities to safely perform the procedures based on an order from the physician….”

Disagreeing with the breadth of the opinion, the Louisiana State Board of Medical Examiners issued its own Advisory Opinion to clarify that the procedures described above constitute the practice of medicine “when used for interventional pain management of patients suffering from chronic pain” and may only be performed by a physician. The Opinion continues to state that while a “nurse anesthetist may utilize these procedures on the prescription of and under physician direction and supervision for surgical cases and acute pain associated with surgery [emphasis added]….it is beyond the scope of practice of CRNAs to employ them to diagnose, manage or treat chronic pain patients. To do so would permit the CRNA to exercise independent medical judgment, perform diagnostic testing, render diagnoses, and provide treatment or recommendations for treatment of patients suffering with chronic pain.” The Opinion further states that such determinations are reserved solely to physicians and are not “delegable to a non-physician by physician prescription, direction or supervision.”

The Spine Diagnostic Center of Baton Rouge (“The Center”) brought a lawsuit that seeks a preliminary injunction against the nurse anesthetist from continuing pain management procedures. The lawsuit also seeks a declaratory statement that “pain management procedures” constitute the practice of medicine and that the nursing board exceeded its authority in authorizing nurse anesthetists to practice these procedures. A complaint was also filed with the medical board against the nurse anesthetist for unauthorized practice of medicine. The Center also petitioned the nursing board to repeal or amend its ruling.

While the judge denied the preliminary injunction against the nurse anesthetist in her May 10 order, the ruling is significant in that it affirms that the practice of medicine is administered by the medical board. Issuing an advisory opinion is within the purview of the nursing board. The judge, however, concludes that a nursing board’s advisory opinion cannot override the authority of a medical board to administer the scope of practice of medicine. The judgment continues to state that “the practice of medicine is statutorily defined and it is administered by the State Board of Medicine. Nothing in the Advisory Opinion of the State Board of Nursing detracts from that authority.”

It could be concluded from the ruling that the medical board’s Advisory Opinion overrides any advisory opinion issued by the nursing board that authorizes a nurse anesthetist to perform interventional pain management procedures for patients suffering from chronic pain. Such procedures are reserved solely to physicians and cannot be delegated.

The ruling on the injunction specifically finds that the nursing board merely issued an opinion rather than a rule.  The Spine Diagnostic Center has appealed that portion of the ruling.  The Center contends that the “opinion” in effect constitutes a rule.  Louisiana statutory law, however, requires nursing scope-of-practice issues to be established only in an administrative rule in accordance with specific rule-making procedures under the Louisiana Administrative Procedures Act (LAPA).  The Center contends that the nursing board circumvented this process by establishing scope of practice of a nurse anesthetist via an advisory opinion, without following rule-making procedures required by LAPA.  Therefore the appeal seeks an injunction and retraction of the advisory opinion.