he Montana Supreme Court affirmed a lower court’s decision authorizing nurse anesthetists to independently administer anesthesia. The Montana Society of Anesthesiologists (MSA) sought to invalidate amendments to regulations issued by the nursing board that define the scope of practice of nurse anesthetists as “independent and/or collaborative.” MSA argued that the nursing board did not have statutory authority to administratively modify the scope of practice of nursing and that the amendments to Rule 303 were void and unenforceable because the nursing board violated the Montana Administrative Procedures Act (MPA) in seeking to enact the amendments. The Montana Association of Nurse Anesthetists (MANA) intervened as a defendant. MANA argued that the amendments to Rule 303 merely clarified the scope of practice, and the Montana Legislature specifically declined to require physician supervision of nurse anesthetists.

Background
In 2004, the district court, agreeing with the nursing board and MANA, held that Montana law does not require physician supervision of nurse anesthetists. While it also concluded that the nursing board did not have the authority to expand or even define scope of practice, the court held that the amendments to Rule 303 did not expand nurse anesthetist scope of practice. Shortly after the district court issued its decision, former Governor Judy Martz opted out of Medicare’s physician supervision requirement.

MSA appealed the district court’s decision. The Montana Medical Association (MMA) and Association of Montana Health Care Providers (MHA) filed briefs as amici curiae in support of MSA and the nurses, respectively. MANA argued that MSA’s claims are moot because Rule 303 did not create any new rights for nurse anesthetists but merely clarified existing practice in Montana. MHA argued that MSA’s appeal is moot because Governor Martz had already opted out. The Montana Supreme Court rejected their contentions that the case was moot. Even though Governor Martz opted out, not all patients are Medicare/Medicaid patients. Furthermore, one element of an opt-out is that it is consistent with state law. Therefore, if the court were to conclude that state law prohibits independent practice, such condition of an opt-out would not be met.

Court’s Analysis
Issue 1: In its analysis of whether the Montana Legislature authorized nurse anesthetists to administer anesthesia to patients without physician supervision, the Montana Supreme Court reviewed 1) both Montana state law and 2) the actions of the Montana Legislature.

First, the court Montana’s Medical Practice Act defines the “practice of medicine” as:

the diagnosis, treatment, or correction of … human conditions, ailments, diseases, injuries or infirmities, whether physical or mental, by any means, methods, devices, or instrumentalities. If a person who does not possess a license to practice medicine in this state … and who is not exempt from the licensing requirements of this chapter performs acts constituting the practice of medicine, the person is practicing medicine in violation of this chapter. §37-3-102 (8).

MSA argued that administering anesthesia is a form of medical diagnosis and treatment and that nurses may not engage in either pursuant to the Montana MPA. The court held that MSA’s reliance on numerous attorney general opinions were not on point nor did MSA set forth any provision in Montana law requiring physician supervision of nurse anesthetists.

However, the MPA provides a list of acts that are exempt from medical licensure requirements, one of which is the “rendering of nursing services by registered or other nurses in the lawful discharge of their duties as nurses … under the conditions and limitations defined by law.” MCA § 37-3-103. The court looks to the Nurse Practice Act to determine whether it places any “conditions and limitations” on nurse anesthetist scope of practice. In reviewing the statute that defines the practice of an advanced-practice registered nurse, nurse anesthetists may practice in their specialized field as long as they meet the licensing and qualification requirements for a nurse anesthetist.¹ The court concludes that the licensing and qualification requirements are the only condition or limitation on their scope of practice.

Second, the court reviewed the actions of the Montana Legislature to determine whether nurse anesthetists are authorized to administer anesthesia without physician supervision. The court states that the only statutory requirement for physician supervision of nurse anesthetists is with respect to individuals who are granted temporary approval while they await their certification results. Furthermore, the Montana Legislature rejected attempts to require physician supervision. A 2003 bill that would have required physician supervision was withdrawn by its sponsor. A subsequent attempt in 2003 failed. The House Human Services Committee voted 13-0 to oppose amendments that would have included physician supervision. In fact, the committee chair wrote a letter to Governor Martz stating that physician supervision is not in Montana’s best interests.

Issue 2: MSA asked the court to review whether the nursing board complied with the Montana Constitution and MPA when it adopted amendments to Rule 303. MSA argued that the nursing board’s amendments are an “executive usurpation of legislative power by an unelected executive body.” Additionally, MMA argued that the nursing board did not have the authority to adopt an administrative rule allowing nurse anesthetists to practice independently of physician supervision. Conversely, MANA argued that prior to the amendments to Rule 303, the rule did not contain any requirement for physician supervision of nurse anesthetists; therefore, the rule did not redefine their scope or create a new authorization for nurse anesthetists to administer anesthesia independently.

The court rejected the cases that MSA cited as not on point. The cases involved criminal cases where the individuals were prosecuted for practicing without a license or using an inappropriate title rather than for practicing outside their scope of practice. Moreover, the court agreed that the legislature did not provide the nursing board with the authority to redefine or expand the scope of practice of a nurse anesthetist established by their enabling legislation. However, it held that the amendments to Rule 303 did not redefine or expand their scope of practice. Rather, the amendments merely clarified existing practice in Montana.

This case cannot be appealed. Montana is unique in that its judiciary system does not have an intermediate appellate court. Therefore, the supreme court hears direct appeals from all of the district courts across Montana and is the last state court of review.

Reference:
1. M.C.A. § 37-8-409 Advanced practice registered nursing — when professional nurse may practice. A person licensed under this chapter who holds a certificate in a field of advanced practice registered nursing may practice in the specified field of advanced practice registered nursing upon approval by the board of an amendment to the person’s license granting a certificate in a field of advanced practice registered nursing. The board shall grant a certificate in a field of advanced practice registered nursing to a person who submits written verification of certification by a board-approved national certifying body appropriate to the specific field of advanced practice registered nursing and who meets any other qualification requirements that the board prescribes.

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