Gasline Newsletter September 2005

Volume 7, No. 2

CSA Sues Board of Registered Nursing

On Wednesday, August 31, the CSA filed a lawsuit against the Board of Registered Nursing (BRN) accusing the BRN of adopting "underground regulations" expanding the scope of nurse anesthetists' practice without complying with the Administrative Procedure Act. BRN recently revised a document entitled "Practice of Certified Registered Nurse Anesthetists," which now states that nurse anesthetists can practice without physician supervision. The second new rule, promulgated by the Board for the first time in the same Bulletin, states that nurse anesthetists, as independent practitioners, may practice pain medicine, a recognized subspecialty within medicine, and particularly within anesthesiology.

The suit alleges that both new policies violate established California law, and asks the court to declare that the purported new rules are legally invalid. The CSA also seeks an injunction prohibiting any further use of these expanded practice rules by BRN unless the rules are adopted after public hearings that comply with California's Administrative Procedure Act and survive judicial scrutiny thereafter. The CSA believes that such rules would be unlawful, and beyond BRN's authority. A hearing date will be scheduled soon.

URGENT—CMS Comments on Anesthesia Teaching Rule Due September 30

A current Medicare rule gives academic anesthesiologists supervising two residents concurrently only half the usual fee, while surgeons overseeing two operations concurrently are paid full fee for both procedures. As a result, many residency programs have struggled financially from the "Anesthesia Teaching Rule. " The Centers for Medicare and Medicaid Services (CMS) failed to correct the inequity in the proposed 2006 Medicare Fee Schedule. However, CMS has invited comment on the issue. The American Association of Nurse Anesthetists (AANA) has undertaken a fundraising and lobbying campaign to oppose any change in the rule, claiming it would result in CRNA education cuts.

It is critical that all anesthesiologists, especially those working in academic programs, comment in support of changing the Anesthesia Teaching Rule so that it is in parity with what surgeons receive. Comments must be sent to CMS by September 30. See the ASA Web Site for details on how to send your comments to CMS: (This link is no longer working. 10/04/05.)

CSA Member Runs for State Assembly

CSA member Mary Jo Ford, M.D., is the front-running Republican in the special election on September 13th to fill the 53rd Assembly District seat (a coastal district wholly contained in L.A. County) vacated due to the recent death of Assemblyman Mike Gordon. She has been endorsed by the Assembly Republican Caucus, State GOP heavy-hitter Jim Brulte, and the Howard Jarvis Taxpayers Association, among many others. It is likely that no candidate will receive a majority vote in the special election, which would result in Dr. Ford facing the lone Democrat, Ted Lieu, in the November 8 run-off. For more information on Dr. Ford, see (this link no longer valid 10/04/05).

The CSA has endorsed Dr. Ford and through GASPAC, the maximum allowable contribution of $3,300 was made. To help Dr. Ford get elected, individual anesthesiologists may contribute up to the $3,300 limit, directly to Dr. Ford's campaign. To make a contribution please go to (this link no longer valid 10/4/05). Physicians are constantly being asked to give money for many causes; however, supporting Dr. Ford's campaign could help anesthesiologists have a greater say in the California Legislature.

Contact the FDA to Oppose Removal of Propofol Warning Label

On June 28, 2005, the American College of Gastroenterology petitioned the FDA to remove the WARNING label that specifies only persons trained in the administration of anesthesia should use propofol. The ACG concept of replacing anesthesiologists with "sedation nurses" (not CRNAs) using propofol is an issue of patient safety. The ASA is working to defeat this proposal. Anesthesiologists for the Safe Administration of Propofol (ASAP) are campaigning against any deletion of or change to the warning label. See for the link to the FDA.

CSA Brief Challenges Hospital-Controlled Corporate Practice of Medicine

An amicus curiae ("friend of the court") brief has been filed on CSA's behalf in a case now pending in the California Court of Appeal. The suit, Feather River Anesthesia Medical Group v. The Fremont-Rideout Health Group, was brought against the hospital system operating the only hospitals in Yuba and Sutter counties by the anesthesia group that practiced in those hospitals until dislodged by a new medical corporation formed by the hospital. The anesthesiologists sued, claiming the hospital's use of a captive corporation "owned" by the hospital's employed medical director, constituted unlawful corporate practice. CSA's brief challenges dismissal of the suit by the trial court. The suit was dismissed by the trial court which found no unlawful conduct. We believe the trial judge was wrong.

The case is likely to be heard and decided by the Court of Appeal sometime next year. CSA's Legal Defense Fund made participation possible. The Fund is utilized in matters of general importance to California anesthesiologists. Clearly, the ability of hospitals to form controlled entities such as "Friendly PC" to employ anesthesiologists is such an issue.

CMA Assembles Technical Advisory Committee on Balance Billing

The CMA Board recently reaffirmed its policy of opposing prohibitions against physicians balance billing patients of plans with whom they do not contract. The CMA has established a new technical advisory committee (TAC) to develop acceptable solutions to the legislature's demands to take patients out of disputes between physicians and health plans over payments to non-contracted physicians. The TAC will work over the next few months to craft a legislative proposal. CSA President Edgar D. Canada, M.D., will represent the CSA.

2005-2006 Dues Due

CSA membership renewals for 2005-2006 were due July 1. A third reminder has been sent to members who have not paid this year's dues informing them that if their dues are not received by September 30, they will be dropped from the CSA membership roster. In addition, ASA bylaws require that members dropped from component society membership will also be dropped from ASA membership. CSA's the ability to advocate on anesthesiologists' behalf in the legislature, the courts and in practice matters depends on the strength of its membership. Together we can do more.

ASA Annual Meeting

In the wake of the Hurricane Katrina disaster, the ASA is seeking an alternative site to hold the Annual Meeting, which was to be held in New Orleans October 22-26. Updates on the status of the situation are posted frequently on the ASA website ASA bylaws require an annual business meeting, so the House of Delegates will meet prior to the end of the year. At this time, the fate of the educational program and other events is uncertain.

Edgar D. Canada, M.D.