The California Society of Anesthesiologists (CSA), along with the California Medical Association (CMA), wants the state Supreme Court to review a decision by two lower courts that state law does not require physician supervision of nurse anesthetists. ( CSA and CMA v. Schwarzenegger)
Last month their bid to appeal a San Francisco City and County Superior Court’s December 2010 decision failed when a state appeals court affirmed that decision.
In order for hospitals and surgery centers and critical access hospitals to receive reimbursement under Medicare when a certified registered nurse anesthetist (CRNA) alone administers anesthesia, federal regulations require that the CRNA must be supervised by a physician. However, federal regulations also allow that a state’s governor has the discretion on behalf of the State to opt out of the physician supervision requirement as long as it is consistent with state law. On June 10, 2009, former Gov. Arnold Schwarzenegger exercised his discretion under federal law and opted California out of the physician supervision Medicare reimbursement requirement. His actions did not change the scope of practice of, or current nurse practice act regulations in the state. It was and is purely an insurance regulation.
Eight months later, the CSA and CMA filed a petition for writ of mandate and request for declaratory relief contending that the governor “acted contrary to California laws that prohibit CRNAs from administering anesthesia without physician supervision.” The writ was requested to command the governor to withdraw the ‘opt-out’ letter and for the superior court to declare that “opting out of the requirement that CRNAs be supervised by physicians was not and is not consistent with California law.” They followed with a motion for summary judgment, based on the same arguments.
The superior court, in its Dec. 27, 2010 ruling, declined to issue the writ or to grant their motion for summary judgment. Instead, it concluded that the governor did not abuse his discretion in determining that the opt out was consistent with state law.
On March 15th the court of appeals affirmed the superior court’s ruling.
“In order for this court to find that the Governor abused his discretion in attesting that opting out of the federal Medicare physician supervision requirement was consistent with state law, we would have to ignore not just one, but multiple authoritative sources uniformly concluding that CRNAs are allowed to administer anesthesia in California without physician supervision,” Presiding Justice Ignazio John Ruvolo wrote.
The CSA said Monday it believes the appeals court’s ruling is “flawed” and should be overturned because “issues of substance” brought before the court were not addressed. “A Supreme Court decision has the potential for far-reaching implications for the citizens of California and beyond,” the organization said in a news release. “The question is whether or not physician supervision of advanced practice nurses should be preserved. How is the imperative ‘that nurses should practice to the full extent of their education and training’ to be balanced against protecting the safety of the public from potential degradation in the quality of care rendered by practitioners who are less educated and trained than are physicians?”
In addition to pursuing the matter in court, the CSA said it and the CMA are looking into potential legislative remedies and initiatives. The two organizations are also urging medical staffs to consider establishing bylaws that require physician supervision of nurses which is an option described in the federal opt-out regulations. What they fail to mention is that such bylaws were established in the facilities most affected by the opt-out, rural hospitals where CRNAs are the only anesthesia practitioners, they would be placing Medicare reimbursement for services in jeopardy.
And, as always, CSA and CMA do not care what type of physician ‘supervises’ a CRNA. Dermatologists, dentists and podiatrists are welcome.
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