s reported in previous “State Beat” articles, the Wisconsin Society of Anesthesiologists (WSA) challenged the validity of Governor James Doyle’s opt-out of the federal requirement that physicians supervise the administration of anesthesia. WSA believed that the governor violated two of the three procedural requirements to seek exemption from the federal physician supervision requirement: consultation with the state medical board and that the opt-out must be consistent with state law.

The Wisconsin Department of Regulation & Licensing (DRL) submitted a memorandum to Governor Doyle supporting an opt-out; however, there has not been any evidence to indicate that the governor consulted with the medical board. There also has been lack of any evidence that DRL discussed with or consulted the medical board before issuing its recommendation. Moreover, WSA and ASA believed that the governor would be required to amend state law to allow for collaboration or independent practice before opting out of the federal supervision requirement. Therefore, WSA sought a declaratory ruling from the medical board that anesthesia is the practice of medicine and to affirm that Wisconsin law required physician supervision of nurse anesthetists.

Subsequent to filing WSA’s petition, the Wisconsin Association of Nurse Anesthetists (WANA) sought a declaratory judgment from the nursing board that the administration of anesthesia by a nurse anesthetist is part of the practice of professional nursing and can be undertaken by a nurse anesthetist independent of a physician.

An administrative law judge (ALJ) took the issue under consideration and issued proposed recommendations and an order to the medical board regarding WSA’s petition. The medical board, however, was not required to adopt the ALJ’s recommendations.

First, the ALJ recommended that the administration of anesthesia is part of the practice of medicine and surgery and is part of the practice of professional nursing. Second, the ALJ distinguished the scope of practice of a nurse anesthetist versus a nurse anesthetist who holds a certificate to prescribe (advanced practice nurse prescriber) [CRNA/APNP]). The ALJ concluded that a CRNA/APNP who administers anesthesia is not required to have a license as a physician or be supervised by a physician. CRNA/APNPs work in a collaborative relationship with a physician. However, nurse anesthetists who are not certified as APNPs and who administer anesthesia must be directed, supervised and inspected by a physician.

WSA submitted written objections to the ALJ and appealed the proposed recommendation. WSA argued that collaboration for CRNA/APNPs only extends to prescribing; they must still be supervised when they administer anesthesia. Moreover, WSA objected to the ALJ’s recommendation that the administration of anesthesia is part of the practice of nursing. In addition to the nurses, the podiatrists and podiatric board supported the ALJ’s proposed recommendations.
Ultimately, the medical board rejected WSA’s arguments and followed the ALJ’s recommendations. After the medical board issued its decision, WANA asked the Wisconsin Board of Nursing to adopt the medical board’s decision. A decision on the petition has not yet been made.

The Indiana Medical Licensing Board voted 6 to zero (with one abstention) to adopt the proposed office-based surgery regulations. Details of the rule are found in the September “State Beat” www.ASAhq.org/Newsletters/2007/09-07/stateBeat09_07.html.

Next, the rule will be reviewed by the Indiana Attorney General’s office. The attorney general will review the rule for form and must act within 45 days of the medical board’s action. After review by the attorney general’s office, the rule will be sent to the governor for signature.

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