February 1, 2013
Volume 77, Number 2
State Beat: Legal Success for Patients in New Jersey and Oklahoma
Jason Hansen, M.S., J.D.
On December 12, the Superior Court of New Jersey, Appellate Division, upheld a New Jersey Department of Health (NJDOH) regulation requiring anesthesiologists to supervise nurse anesthetists when they administer anesthesia in hospitals.
New Jersey Association of Nurse Anesthetists, Inc. v. New Jersey Department of Health and Senior Services addressed the validity of a regulation issued by the NJDOH that requires the “physical presence of a collaborating anesthesiologist (CA) during induction, emergence and critical change in status when an Advanced Practice Nurse/Anesthesia (APN/A) administers general or major regional anesthesia, conscious sedation or minor regional blocks in a hospital.”
The New Jersey Association of Nurse Anesthetists challenged the physical presence requirement, arguing among other things that the NJDOH exceeded its authority. In ruling against the New Jersey Association of Nurse Anesthetists, the court referenced previous case law holding that the “administration of anesthesia is, in fact, the ‘practice of medicine’ since it is used in the treatment of ‘human ailment, disease, pain, injury, [or] deformity.’” The court also drew a special distinction between the nurses’ contention that this rule regulated the nursing profession and explained that the rule was “... regulating the practice of administering anesthesia in a hospital setting.” Finally, the court highlighted that it was within the Department of Health’s authority to “recognize the differences in education, training and skill of APN/As and anesthesiologists in establishing anesthesia staffing regulations.”
The New Jersey State Society of Anesthesiologists filed several briefs on the case and also presented arguments to the court, providing an important perspective for its deliberations.
On December 13, Oklahoma’s Attorney General issued an Attorney General Opinion (2012-21) with language favorable to anesthesiology. Written at the request of the Oklahoma Board of Nursing, the opinion addressed:
The meaning of “timely onsite consultation” with regard to the actual physical presence of the supervising practitioner of a nurse anesthetist
Whether the supervising practitioner of a nurse anesthetist must be available for timely onsite consultation throughout all stages of the administration of anesthesia
Whether the Board of Nursing may distinguish between analgesia and anesthesia as related to supervision of the nurse anesthetist by the supervising practitioner
According to the opinion, what constitutes timely onsite consultation “…is left to the sound medical judgment of the supervising practitioner.” The opinion further provided that, under Oklahoma law, the supervising practitioner need not be onsite in all instances in order to be “available” for timely onsite consultation. However, a supervising practitioner of a nurse anesthetist must be available for timely onsite consultation at all recognized stages of the administration of anesthetic services.
Finally, the opinion determined the Oklahoma Board of Nursing may not promulgate rules defining analgesia and anesthesia in such a way so as to allow less supervision than is required by statute.
The Oklahoma Society of Anesthesiologists submitted written materials to the Oklahoma Attorney General’s office and worked with its staff to ensure a thorough understanding of anesthesia delivery and the practical implications of the questions it was tasked with answering.
ASA applauds New Jersey and Oklahoma on these important patient safety successes.
Jason Hansen, M.S., J.D. is
Director of State Affairs in
the Washington D.C. office.
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