Summary of 2006 State Activities

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


Opt-Outs
Fourteen states have opted out of the federal requirement that a nurse anesthetist administer anesthesia under the supervision of the operating practitioner or anesthesiologist who is immediately available if needed. The list includes: Alaska, Idaho, Iowa, Kansas, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Dakota, Washington and Wisconsin. There have been no opt-outs in 2006, to date.

Nurse Anesthetists’ Scope of Practice
California — The California Society of Anesthesiologists (CSA) challenged the legality of the nursing board’s statement allowing nurse anesthetists to practice independently and to perform acute and chronic pain management procedures. CSA contends that the statement is an “underground” regulation that was not adopted in accordance with the Administrative Procedure Act. The lawsuit seeks a declaratory ruling that the statement is unenforceable and seeks an injunction prohibiting the expanded scope of practice unless the rules are adopted after public hearings and survive judicial review. The nursing board removed the statement from its Web site; however, it is believed that the board will propose regulations that mirror the statement.

Illinois — S.B. 2239 would have added Schedule II controlled substances to the list of controlled substances that a nurse anesthetist could prescribe pursuant to delegatory authority. Died in committee.

H.B. 4370 authorizes registered nurses (RN) to deliver moderate sedation in ambulatory surgical centers (ASCs). Moderate sedation must be ordered by a physician, podiatrist or dentist. The RN must be supervised by a physician, podiatrist or dentist who has training and experience in delivering and monitoring moderate sedation; possesses clinical privileges at the center to administer moderate sedation or analgesia; and remains physically present and available on the premises. Enacted.

Louisiana — The nursing board issued an advisory opinion that allows nurse anesthetists to perform interventional pain management procedures. A lawsuit filed seeks a preliminary injunction and 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. The ruling denied the preliminary injunction but affirmed that the practice of medicine is defined by statute and administered by the medical board. The judge also concluded that the nursing board issued an advisory opinion rather than a rule and that an opinion cannot override the medical board’s authority to administer the scope of practice of medicine. The petitioner appealed the judge’s ruling that the opinion is not a rule. The petitioner contends that the “opinion” in effect constitutes a rule and that the nursing board circumvented the rule-making process by establishing scope of practice via an advisory opinion. The appeal seeks an injunction and retraction of the advisory opinion. The Louisiana Society of Anesthesiologists and ASA will file an amicus in support of the petitioner’s appeal.

Missouri — S.B. 576 would have allowed APRNs (nurse anesthetists) who practice under a collaborative agreement to prescribe Schedule II-V controlled substances pursuant to delegatory authority. Died in committee.

New York — A.B. 4015/ S.B. 1784 would authorize nurse anesthetists to practice in collaboration with a physician and pursuant to a written practice agreement and practice protocol. Nurse anesthetists who complete a pharmacology program (or its equivalent) could prescribe drugs, devices and anesthetic agents.

A.B. 3702/ S.B. 1874 would allow nurse anesthetists in a hospital or ASC to administer anesthesia under the supervision of an anesthesiologist who is immediately available, under the supervision of the physically present operating physician, or under the supervision of a dentist, oral surgeon or podiatrist who is physically present. In the office, the administration of anesthesia would be supervised by an anesthesiologist, physician, dentist or podiatrist qualified to supervise and who is physically present and available.

A category of nurse practitioners has been created, Nurse Practitioner in Anesthesia (NPA), without public comment or legislative input. The NPA Protocol Committee drafted practice limitations to include in the collaborating agreement and protocol. An NPA would be supervised by an anesthesiologist or operating physician in the hospital, ASC or office setting. A dentist or podiatrist also could supervise in an office. The supervising physician would be immediately available (on site), qualified to supervise the administration of anesthesia and accept responsibility.

S.B. 7613/A.B. 11860 would create the “Task Force on Quality Assurance in Anesthesia” to review the critical care needs of patients undergoing anesthesia; laws governing the administration of anesthesia; and training, educational background and licensure requirements for health care professionals relating to the administration of anesthesia. A report would be submitted to the governor and legislature by May 1, 2007. This bill would prohibit the State Education Department from taking any action to expand or create specialties relating to anesthesia within any of the health care professions until the report is issued. Passed Senate.

North Carolina — H.B. 503/S.B. 394 would solidify physician supervision of nurse anesthetists as already required by regulation and judicial rulings.

Pennsylvania — H.B. 1066/S.B. 452 would allow a nurse anesthetist to administer anesthesia in cooperation with a physician, dentist or podiatrist. “Cooperation” would be defined as each professional working together contributing expertise at his or her individual and respective levels of education and training. Nurse anesthetists would 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 would be under the overall direction of the physician responsible for the patient’s care. If the anesthesia team consists entirely of nonphysicians, the nurse anesthetist would have available, by physical presence or electronic communication, an anesthesiologist or consulting physician of the nurse anesthetist’s choice.

Wisconsin — The Wisconsin Society of Anesthesiologists filed a Petition for Declaratory Ruling with the medical board to affirm that nurse anesthetists must be supervised when administering anesthesia. In response the Wisconsin Association of Nurse Anesthetists petitioned the nursing board to issue a declaratory ruling that the independent administration of anesthesia is within their scope of practice. Neither board has issued a ruling.

Office-Based Anesthesia
Proposed office-based surgery regulations are before the state medical boards in Arizona, Indiana and Oregon.

Illinois — The Illinois Department of Professional Regulation (IDPR) has appealed a lower court’s ruling that invalidated rules found in the nursing statutes 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 (MPA) and to document such training in the written practice agreement. The MPA continues to require surgeons who supervise nurse anesthetists in the office to hold privileges to administer anesthesia in a licensed hospital or ASC or to obtain continuing medical education in the delivery of anesthesia. The issue on appeal is whether IDPR has the authority to enforce the physician training requirements set forth in the MPA against nurse anesthetists who may be working with physicians who have not met such training requirements. The Illinois State Medical Society, Illinois Society of Anesthesiologists and ASA filed an amicus brief in support of IDPR’s appeal.

Kansas — Temporary rules were adopted as final. The rules provide that a physician evaluate and record the patient’s condition, risks and invasiveness of the surgery or procedure. The physician or nurse anesthetist administering anesthesia must be physically present during the intraoperative period and available until the patient has been discharged from anesthesia care. Each surgery and special procedure must be within the scope of practice of the physician. Patients must not be discharged until the discharge criteria have been met. Any office using general anesthesia or a spinal or epidural block must be equipped with medications and equipment available to treat malignant hyperthermia when triggering agents are used. Qualified and trained personnel must be available and dedicated solely to patient monitoring.

New York — A.B. 8129 would require physicians who perform office surgery to disclose to their patients the type/ frequency of procedures conducted in the office, credentials of surgical staff, experience with adverse events, procedures to handle emergencies and malpractice record.

Tennessee — H.B. 1288/S.B. 260 would have prohibited the use of general anesthesia or conscious sedation in the office. Died in committee.

Virginia — The medical board issued a proposal to amend the office-based surgery rules that would have allowed nurse anesthetists and qualified nonanesthesiologist physicians to administer a major conductive block for diagnostic and therapeutic purposes in the nonsurgical setting. The board subsequently deleted the language pertaining to nurse anesthetists. Not yet adopted.

Wisconsin — S.B. 434 would have directed the medical board to promulgate rules. Anesthesia would have been administered by a physician who meets training and education standards set by the board or by an individual under the direct supervision of a physician who meets the board’s standards. Adverse incidents would have been reported to the board. Died in committee.

Anesthesiologist Assistants (AAs)
Kentucky — S.B. 175 would have eliminated the dual physician assistant/AA certification requirements so that applicants for AA licensure would only be required to complete an AA program. The bill was amended to a study of AA certification and scope-of-practice requirements. Enacted.

North Carolina — H.B. 503/ S.B. 394 would provide for the licensure of AAs who administer anesthesia under the supervision of an anesthesiologist. Student AAs would be prohibited from identifying themselves as “intern,” “resident” or “fellow.”

Ohio — The Court of Appeals of Ohio upheld the medical board’s regulation prohibiting AAs from performing epidural and spinal anesthetic procedures and invasive monitoring techniques. The issue involved the statutory interpretation of the word “assist” as set forth in the language governing the scope of authority of an AA. The Ohio Supreme Court has accepted the AA’s appeal.

South Carolina — S.B. 142 would have amended the supervision ratio from 1:2 to 1:4. The bill was amended to retain the 1:2 ratio. Enacted.