Illinois Appellate Court Upholds Physician Training Requirements for Office-Based Surgery

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


n Illinois appellate court upheld the requirement found in section 1305.45(e) of the Illinois Administrative Code that a certified registered nurse anesthetist may only provide anesthesia services in a physician’s office if that physician has training and experience in the delivery of anesthesia services. The training and experience requirements, as set forth in the Medical Practice Act, provide that the physician maintain clinical privileges to administer anesthesia services in a licensed hospital or ambulatory surgical treatment center or complete continuing medical education. For conscious sedation, the physician must complete a minimum of eight hours of continuing medical education (CME) credits within each three-year renewal period in delivery of anesthesia, including administration of conscious sedation. For deep sedation, regional anesthesia and/or general anesthesia, a physician must complete a minimum of 34 hours of CME credits in the delivery of anesthesia services.

The lower court had previously enjoined defendant Illinois Department of Professional Regulation (IDPR),^* from enforcing 1305.45(e). IDPR promulgated 1305.45(e) to implement statutes (Nursing Act) enacted by the Illinois General Assembly. IDPR appealed the lower court’s order. The Illinois Society of Anesthesiologists, Illinois State Medical Society and ASA filed an amicus brief in support of IDPR’s appeal.

The plaintiff (Peter J. Pollachek, CRNA) argued that the regulation is invalid because it exceeds the scope of the Nursing Act. The plaintiff maintained that the Nursing Act did not place restrictions on the services provided by a nurse anesthetist in a physician’s office as long as the physician is authorized to practice medicine in all of its branches and a written practice agreement exists between the physician and nurse anesthetist. The court disagreed and held that a conflict does not exist between the statutes and regulation. The Nursing Act places restrictions on nurse anesthetists. The court found that the plain language of the statute demonstrates the legislature’s intent that the nurse anesthetist work closely with the physician in administering anesthesia services. The Nursing Act requires that the physician confer with the nurse anesthetist, agree to the anesthesia plan and remain physically present and available to respond to emergency medical conditions. The regulation is consistent with the Nursing Act because it ensures that nurse anesthetists will only work with office-based physicians “who have the requisite knowledge to devise a treatment plan and the ability to provide diagnostic, consultation, and treatment of emergency medical conditions that may arise during the delivery of anesthesia services.”

The court also rejected the argument that IDPR’s decision to require additional training and experience is arbitrary and capricious. The court found that the legislature, rather than the department, determined that nurse anesthetists and anesthesiologists should be treated differently. The Medical Practice Act does not require a physician to discuss and agree with the anesthesia plan if the anesthesiologist administers anesthesia; those duties only apply to a physician if a nurse anesthetist administers anesthesia services. Additionally the director of IDPR testified at trial that the Nursing Act strongly suggested training for physicians because the statutes placed a responsibility on physicians to develop a written collaborative agreement. The director determined, after considering the opinion of the Illinois State Medical Society and Nursing Statute, that the “training requirement would help ensure that the office-based physician could satisfactorily meet the statutorily mandated responsibilities of participating in the anesthesia plan and being available for diagnosis, consultation and treatment of emergencies.” The court also found that the regulation is consistent with the purpose of the Nursing Act to protect the health, safety and welfare of the public. Lastly the nurse anesthetist did not demonstrate that enforcement of 1305.45(e) created an economic hardship.

Congratulations to IDPR, the Illinois Society of Anesthesiologists and Illinois State Medical Society on their hard work!