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California Courts Uphold Governor Schwarzenegger’s Interpretation That California State Law Allows CNRAs to Administer Anesthesia Without Physician Supervision

On June 13, 2012, the California Supreme Court unanimously denied review in the case of California Society of Anesthesiologists v. Superior Court, 204 Cal.App.4th 390 (1st Dist. 2012) ending an over two year battle by the California Society of Anesthesiologists and the California Medical Association who challenged former governor Arnold Schwarzenegger’s certification to the federal government that California law allowed Certified Registered Nurse Anesthetists (CRNAs) to administer anesthesia without physician supervision.

Medicare regulations require physician supervision of CNRAs as a condition of receiving Medicare reimbursement. 42 C.F.R. §§ 482.52(a)(4); 485.639(c)(2); 416.42(b)(2). However, additional Medicare regulations allow a state to opt out of the physician supervision of CNRAs requirement. In order to opt out of the physician supervision requirement, the state’s governor must submit a letter to the Centers for Medicare and Medicaid Services (CMS) requesting an exemption. The letter “must attest” that the governor has: (1) consulted with State Boards of Medicine and Nursing about issues related to access to and the quality of anesthesia services in the State; (2) concluded that it is in the “best interests of the State’s citizens” to opt out of the current federal physician supervision requirement; and (3) concluded that the opt out is “consistent with State law.” 42 C.F.R. §§ 482.52(c)(1), 485.639(c)(1), 416.42(c)(1). Former Governor Schwarzenegger opted California out of this requirement on June 10, 2009, finding that California law allowed CNRAs to administer anesthesia without physician supervision.
The California Society of Anesthesiologists and the California Medical Association challenged the certification by Schwarzenegger and argued that California law did not allow CNRAs to administer anesthesia without physician supervision. The California Nursing Practice Act provides that CRNAs are authorized to administer medications necessary to implement treatment “ordered” by a physician. West’s Ann.Cal.Bus. & Prof.Code § 2725(b)(2).

The trial court which heard the case found that the Nursing Practice Act allowed CNRAs to administer anesthesia without physician supervision. On appeal to the California First District Court of Appeals, the appellate court likewise found that the plain language of the Nursing Practice Act authorizes CRNAs to administer anesthesia without physician supervision. The appellate court also relied on the conclusion reached by the Board of Registered Nursing and other agencies and officials, including the State Attorney General and denied the challenge by California Society of Anesthesiologists and the California Medical Association.

Fifteen other states have opted out of the Medicare requirement requiring CNRAs to be supervised by a physician while administering anesthesia: Washington, Oregon, Iowa, Nebraska, Idaho, Minnesota, New Hampshire, New Mexico, Kansas, North Dakota, Alaska, Montana, South Dakota, Wisconsin, and Colorado.

For more information regarding this and related issues, please Abby Pendleton, Esq. at (212) 734-0128 or visit the HLP website.

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