OPT OUT / OPT IN: How Can We “Advance the Practice and Secure the Future?”

  • Hertzberg, Linda, MD, FASA
| Mar 19, 2012

In June 2009, then Governor Schwarzenegger suddenly (and inexplicably) wrote in a letter to CMS that California was opting out of the Medicare requirement for physician supervision of nurse anesthetists. Unfortunately, because of the legal and political climate in California, not much has changed since Schwarzenegger left office.

The CSA and CMA filed suit seeking to reverse the Governor’s action, but their arguments were rejected a year ago by the Superior Court. Last week, the California Court of Appeals upheld that decision and rejected the CSA/CMA appeal. It is absolutely clear to the CSA and our attorneys that California law and statute requires physician supervision of nurse anesthetists. The arguments and amici briefs filed with the Court of Appeals strongly supported this argument. Everything appears to hinge on the distinction between the words “ordered by,” which are in the statute, and the word “supervision,” which is implied but not explicitly stated. This is the foundation of the Appeals Court decision.

To quote from page 13 of the decision: “We believe that if the Legislature had intended to impose a supervision requirement in section 2725, subdivision (b)(2), it surely would have expressed such intent more explicitly––just as it has done in other statutes governing the administration of medication. While every word of a statute must be presumed to have been used for a purpose, it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose.”

And from page 15: “We also find the Attorney General’s seminal 1984 opinion persuasive… The Attorney General concluded that, while a CRNA could not lawfully administer an anesthetic under standardized procedures, a CRNA was legally authorized by section 2725, subdivision (b)(2) to administer all forms of anesthesia on the sole condition that the anesthesia be ‘ordered’ by a physician, dentist or podiatrist acting within the scope of his or her license.”

This opinion first of all reduces the significance of the physician supervision issue to a simple economic question of whether and how physicians and nurse anesthetists are paid. The nurses argued that the case was simply about economics, and the Court seems to have embraced their reasoning. Second, the opinion essentially ignores the way in which the Board of Nursing accomplished the removal of the physician supervision requirement from California law. There is an explicit process in California for changing scope of practice; in contrast, what happened in our case is “underground regulation” aided and abetted by the Governor and the courts. Finally the opinion focuses narrowly on the fact that the word “supervision” is not in 2725 b of the Nurse Practice Act and that—to their way of thinking—the word “order” does not imply supervision.

To anesthesiologists, there is a profound difference between the comparatively simple act of “ordering” a single treatment (like a dose of antibiotic) compared with the complex procedures (like intubation and extubation) and medications with multiple potential interactions involved in any anesthetic case. As a physician and anesthesiologist who practices medicine and actually cares for patients, I am baffled as to how one could “order” an anesthetic without actually supervising how it is delivered, given the potential complexity of care in any particular case. Even in other settings outside the operating room where highly skilled and experienced RNs provide complex patient care involving autonomous judgments, there are protocols and procedures to follow and the ultimate responsibility for oversight rests with a physician.

Once the Court of Appeals rejected the argument that ordering an anesthetic implied supervision, it upheld the previous Superior Court ruling that the Governor had acted appropriately. From pages 7 and 8 of the decision: “...We agree with the trial court that our review is limited to determining whether the Governor abused his discretion in concluding that the opt-out of the federal supervision requirement is consistent with state law.” The Court continued, “Given this federal framework, which clearly entitles the Governor to come to a decision with virtually no administrative oversight or legal interference, we believe the Governor’s conclusion that the opt-out is consistent with California law is entitled to deference” unless he has clearly abused his authority.

So where does this leave us going forward? Both the Superior Court and the Court of Appeals appear to have provided some clues and suggestions.

From page 18 of the decision: “As nursing becomes more specialized, many nursing functions will inevitably overlap with physician functions. (§ 2725, subd. (a).) That does not mean, however, that those functions are not legitimately part of the practice of nursing. If appellants remain concerned that a physician‘s practical, ethical and legal responsibilities for his or her patient‘s care will be jeopardized by the use of unsupervised CRNA‘s to administer anesthesia, the solution lies with the Legislature, not this court.” [italics added]

CSA leadership, our partners, and our legal team are now considering next steps, weighing a variety of options. We are reviewing the decision and may decide to appeal to a higher court. We could seek legislation to add the word “supervision” into the key statute to make it consistent with the supervision requirements for other physician extenders. We can seek to win in the court of public opinion, redoubling communications efforts to educate consumers about the critical importance of physicians in their anesthetic care.

Whatever the CSA decides, I would urge each of you to review Dr. Keith Chamberlin’s recent CSA Online First column, Someone Wants Your Practice! His thoughts are right on target about personal advocacy within your hospital at the administrative and medical staff level. Remember that unsupervised, independent practice by nurse anesthetists can only happen with the cooperation of—or neglect by—the medical staff on a local level. Go to your next Medical Executive meeting and urge a bylaws change to require MD supervision! Do it now, immediately. The ASA motto—“Vigilance”—seems most appropriate here on many levels. We alone, as anesthesiologists, are responsible for “advancing the practice and securing the future.” 

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