any of the 2006 “State Beat” articles summarized activities of administrative agencies rather than state legislatures. In addition to reporting on proposed and adopted regulations, previous articles focused on legal challenges to advisory opinions or statements issued by state nursing boards. Plaintiffs argued that nursing boards circumvented the legislature in order to expand nurse anesthetist scope of practice by adopting “statements.” Additionally, plaintiffs argued that the “statements” were invalid because the documents were not adopted in accordance with administrative procedures. A Louisiana Court of Appeal recently reversed a trial court’s order by ruling that the nursing board’s “statement” constituted a rule that required compliance with the procedural requirements of the Louisiana Administrative Procedures Act (LAPA).

In response to a petition by an individual nurse anesthetist for an advisory opinion on nurse anesthetist scope of practice, the Louisiana State Board of Nursing adopted the following statement:

“That it is within the scope of practice for the CRNA 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 on an order from the physician.”

The nursing board published the statement on its Web site and via its quarterly publication. The Spine Diagnostic Center of Baton Rouge, Inc. (Spine Center) argued that because the nursing board attempted to adopt a “rule” but did not follow the LAPA, the rule had been improperly adopted and should be declared invalid. The Spine Center sought an injunction and declaratory judgment. The Spine Center also asked the medical board to issue an advisory opinion on interventional pain management.

The opinion indicated that nurse anesthetists could provide anesthetics for acute pain associated with surgery, but procedures for interventional pain management purposes constituted the practice of medicine and could only be performed by a physician. The nursing board did not dispute that it did not follow procedures set forth in LAPA to adopt a rule. The nursing board, however, argued that the statement is an advisory opinion that did not require it to follow the administrative procedures. The board also argued that it did not authorize nurse anesthetists to practice medicine because the nurse is working under the direction and supervision of a physician based on a physician’s order.

The trial court 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 Spine Center appealed the judge’s ruling that the opinion is not a rule. The petitioner argued 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 sought a preliminary injunction and retraction of the advisory opinion.

In its analysis, the Court of Appeal reviewed the administrative procedures set forth in LAPA, which defines “rule” as:

“Each agency statement, guide, or requirement for conduct or action… which has general applicability and the effect of implementing or interpreting substantive law or policy…. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and is capable of being applied to every member of an identifiable class. La R.S. 49:951(6).”

Based on this definition, the court held that if the statement serves an “interpretive” function without substantive effect, then the statement was not a rule and the nursing board was not required to comply with LAPA’s rule-making procedures. If the statement has general applicability and implemented or interpreted substantive law or policy regarding nurse anesthetist scope of practice, however, then it is a rule.

The Spine Center argued that the statement expands nurse anesthetist scope of practice into the interventional pain management field, an area in which nurse anesthetists have not practiced in Louisiana. Testimony provided by an anesthesiologist who worked and taught nurse anesthetists stated that the nurses had not been involved in chronic pain management and that epidural steroid injections and spinal facet injections are beyond their scope of practice. Also, testimony by the plaintiff, who is a board-certified interventional pain specialist, testified that the statement expands nurse anesthetist scope of practice. The Spine Center argued that, based on the testimony that nurse anesthetists had not previously provided such procedures in Louisiana, the nursing board attempted to substantively expand nurse anesthetist scope of practice by adopting a rule under the guise of an “advisory opinion.”

With respect to whether the statement has general applicability, the Spine Center argued that all nurse anesthetists in the state of Louisiana could rely on the statement. The nursing board placed the statement on its Web site under the heading “CRNA Scope of Practice” without any qualifying language. Additionally, the statement was sent to all registered nurses statewide in the nursing board’s quarterly magazine. The statement was not presented in the form of a letter to a specific individual nor couched in hypothetical terms. Therefore nurse anesthetists could rely upon the statement as authority to perform interventional pain management procedures. The court rejected the nursing board’s argument that the statement is limited in scope and concluded that the actual language of the statement is capable of applying to every nurse anesthetist who has the requisite knowledge, skills and abilities.

The court held that in light of the testimony described above, the statement is not merely “interpretive” and without substantive effect. Rather, the statement has the effect of both interpreting and implementing substantive law regarding nurse anesthetist scope of practice since the nursing board had not previously utilized its rule-making power to authorize nurse anesthetists to perform the procedures at issue. Therefore the statement substantively expands scope of practice into an area nurse anesthetists have not traditionally practiced. Such substantive expansion clearly constitutes a “rule” within meaning of statute La. R.S. 49:951(6).

In conclusion the Court of Appeal reversed the trial court’s order that denied the Spine Center’s request for a preliminary injunction. The court enjoined the nursing board from enforcing the “statement” relative to the scope of practice of a nurse anesthetist and enjoined the nurse anesthetist who requested the advisory opinion from practicing any form of interventional pain management in reliance on the authority of the statement. Throughout the process, ASA and the Louisiana Society of Anesthesiologists will monitor developments closely and take action as necessary.

Lisa Percy, J.D., manages state affairs for ASA’s Office of Governmental and Legal Affairs in Washington, D.C.