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More states permit CRANs to administer anesthesia without supervision.

UNDER THE SOCIAL SECURITY ACT, AMBULATORY SURGICAL CENTERS, HOSPITALS, AND OTHER CRITICAL ACCESS HOSPITALS MUST FULFILL CERTAIN CONDITIONS OF PARTICIPATION TO RECEIVE, MEDICARE REIMBURSEMENT. One of which is that CRNAs must be supervised by duly qualified physician. However, states may opt out of the physician requirement if "the State in which the [facility] is located submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State's Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs." The letter form the Governor must attest that the Governor consulted with the Boards and concluded that the "opt-out" is in the best interests of the State's citizens" and "consistent with State law." Many states other than Colorado have opted out of the federal requirement that CRNAs be supervised by physicians. On July 29, 2010, former Governor Bill Ritter, Jr., sent a letter to the Colorado Medical Board [Medical Board] and the Colorado Board of Nursing [Nursing Board] requesting advice on whether an opt-out would be consistent with Colorado law and in the best interests of Colorado residents. In August 2010, both the Medical Board and the Nursing Board recommended the opt-out. On September 27, 2010, Governor Ritter notified the Centers for Medicare and Medicaid Services by letter that he had consulted with the Medical Board and the Nursing Board and had determined the opt-out was consistent with Colorado law and in the best interests of Colorado citizens. Consequently, be exercised the opt-out as to all critical access hospitals in Colorado and thirteen specifically identified rural general hospitals. Later, he added a fourteenth rural general hospital to the opt-out. On September 28, 2010, the Doctors filed suit for declaratory relief contending the opt-out was inconsistent with Colorado law. The Doctors also requested injunctive relief ordering the Governor to withdraw the opt-out. The Colorado Hospital Association, Colorado Nurses Association, and the Colorado Association of Nurse Anesthetists intervened. The Governor filed a motion to dismiss, in which the intervenors joined. On April 3, 2011, the District Court granted the Governor's motion to dismiss and thus upheld his decision that the Colorado statutes and regulations permit the delivery of anesthesia by CRNAs without physician supervision. The Doctors appealed. On appeal, Amici briefs were filed by the American Society of Anesthesiologists and the American Medical Society in support of the position taken by the Doctors.

THE COURT OF APPEALS OF COLORADO AFFIRMED THE DECISION OF THE DISTRICT COURT ALLOWING CRNAs TO PRACTICE WITHOUT THE SUPERVISION OF ANESTHESIOLOGISTS. The court held, inter alia, that the Governor's decision "in no way infringes on the powers and duties of the coequal departments of our government" and is an issue "traditionally within the role of the judiciary to resolve," arguments to the contrary notwithstanding.

THE COURT REJECTED THE DOCTORS CONTENTION THAT THE COURT DID NOT HAVE STANDING TO MAKE THE DETERMINATION. The court determined that "standing" was, in fact, a threshold issue which the court had to decide before it could exercise jurisdiction. The court determined that the injuries alleged by the Doctors were, in fact, tangible and consisted of injuries to their medical practices, including injuries to their medical licenses and reputations. The court noted that these allegations, taken as true by the District Court, did establish that the Doctors had standing sufficient to give jurisdiction to the courts of Colorado to make a determination as to the legality of the Governor's opt-out decision. After reviewing the applicable law regarding CRNAs, the court concluded that the CRNAs who administer anesthesia are conducting independent nursing functions within the scope, role, and population focus that the Nursing Board has approved for them. They are not conducting delegated medical functions and therefore do not require physician supervision. In reaching its conclusion, the court did not minimize the able arguments made by Doctors and amici curiae tat anesthesiologists receive considerably more education and training than nurse anesthetists, and therefore are much better equipped to respond to emergencies and unexpected difficulties during surgery. However, the court perceived its role as limited to determining whether Colorado law permits CRNAs to administer anesthesia without physician supervision. The court was careful to point out that it was not passing on the wisdom of State law allowing CRNAs to administer anesthesia without physician supervision. Accordingly, the court determined that the District Court did not err in determining that, under the Act, CRNAs may lawfully administer anesthesia without physician supervision and that such activity is not inconsistent with Colorado Law. Editor's Note: This case was previously featured by us. Look for more states doing the same! Colorado Medical Society v. Hickenlooper, 2011 COA 121, 11CA1005 COACA (7/19/2011)-CO

A. David Tammelleo JD Editor & Publisher [c] 2012
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Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1U8CO
Date:Aug 1, 2012
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