ast month’s “State Beat” reported that the Louisiana Court of Appeal held that the statement issued by the Louisiana nursing board was a rule, subject to the Louisiana Administrative Procedures Act. Additionally the court issued a preliminary injunction enjoining the nursing board from enforcing the statement and the nurse anesthetist who sought the statement from practicing any form of interventional pain management in reliance on the authority of the statement. The court’s decision relied on its analysis of Louisiana’s statutory definition of “rule” and relied on testimony that the statement would expand nurse anesthetist scope of practice. 

As anticipated the nursing board has asked the Louisiana Supreme Court to review the lower court’s ruling. First, the nursing board argues that it issued a declaratory order, which is excluded from the definition of a rule. Therefore the procedures applicable to declaratory orders differ from those that apply to rules. As such the procedures are less stringent because declaratory orders are nonbinding and without the effect of law.

Second, the court erroneously interpreted the Nurse Practice Act (NPA) when it held that the nursing board’s statement expands nurse anesthetist scope of practice into an area in which they have not traditionally practiced. Because the NPA states that “CRNAs are trained and legally authorized to administer all types of anesthetics in all settings,” the board argues that the court placed a limitation on their scope that does not already exist. Additionally the declaratory order does not expand nurse anesthetist scope of practice as it simply opines the applicability of a statute governing the administration of anesthesia to the administration of anesthetics for pain management purposes.

ASA and the Louisiana Society of Anesthesiologists will continue to monitor whether the Louisiana Supreme Court grants the nursing board’s petition to review the Court of Appeal’s decision.

Billing Legislation
Connecticut — Legislation has been introduced that would extend mandatory assignment of benefits to physicians. Existing law only extends to dentists and oral surgeons. S.B. 230 applies to both individual and group health insurance policies. The Connecticut State Society of Anesthesiologists plans to testify in support of this bill.

Texas — Legislation in Texas would require disclosure of a provider’s out-of-network status. Participating providers of a managed care plan would provide written notice to an enrollee if such provider referred an enrollee to an out-of-network provider. Additionally, notice would be required if the health care facility granted clinical privileges to a surgeon, radiologist, anesthesiologist, pathologist or other physician who is in an out-of-network provider and who is to provide services to the enrollee as a patient of the facility. Notice also would be required if the facility arranges for health care services for the enrollee through an out-of-network provider.

The notice provided would disclose that the out-of-network provider is not a participating provider in the enrollee’s managed care plan and may charge the balance of the provider’s fee for services rendered that are not fully paid or reimbursed by the plan. A signature line acknowledging receipt of such notice would be included. Notice would be provided before the services are rendered and sufficiently in advance, to the extent possible, in order to allow the enrollee to select a participating provider. Out-of-network providers also could elect to provide such notice.

If notice is not provided, the out-of-network provider would be prohibited from balance billing the enrollee. Neither notice nor the balance billing prohibition, however, would apply if the treating physician reasonably determines, in the physician’s medical judgment, that an emergency exists and insufficient time prevents providing such notice.

H.B. 139 would apply to managed care plans that are delivered, issued or renewed on or after January 1, 2008.

New York — S.B. 672 would prohibit a health care provider from balance billing a covered person for the provision of emergency services. It also would prohibit balance billing for certain inpatient hospital services.

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