California Judge Issues Order Upholding Opt Out from Federal Anesthesia Rule
Lower court order dismisses lawsuit filed by state's physicians to block Gov. Schwarzenegger's Action
Park Ridge, Ill. - The California Superior Court in San Francisco has issued a final written order
declaring that California state law does not require nurse anesthetists to be supervised by a physician. The court also ruled that the governor acted within his rights by opting out of the federal physician supervision requirement for these advanced practice registered nurses. The final order, issued late last month, rules in favor of then-Gov. Arnold Schwarzenegger and the California Association of Nurse Anesthetists (CANA).
The final order confirms in writing the court’s October 8, 2010 verbal ruling that granted summary judgment in favor of Gov. Schwarzenegger and CANA, affirming California’s opt out of the federal supervision requirement for nurse anesthetists in July 2009. The presiding judge, Peter J. Busch, found that the governor did not abuse his discretion in concluding that the opt-out was consistent with state law, an important requirement for seeking an opt-out from the Centers for Medicare & Medicaid Services (CMS).
The ruling goes against the California Society of Anesthesiologists (CSA) and the California Medical Association (CMA), who filed the lawsuit in February 2010. The CSA and CMA are reviewing their options, including appealing the ruling. Meanwhile, California’s opt-out remains in effect.
In the final order, Judge Busch said that while the CSA and CMA seemed to suggest that the opt-out creates safety risks for patients, they “did not present any evidence on that point nor did they substantively rebut the evidence presented by [CANA] demonstrating that the opt-out does not present safety risks.” Evidence presented by CANA included two national anesthesia studies published in 2010 that confirmed the safety and cost-effectiveness of nurse anesthetists.
The final order states that the court “cannot say that as a matter of law the Governor abused his discretion by telling CMS that the opt-out is consistent with California law.” Moreover, the order states that “irrespective of the scope of the Governor’s discretion, the Court independently finds that California law does not require CRNAs to administer anesthesia under physician supervision.”
Judge Busch’s order concluded that the governor’s opt-out was “consistent with the language and structure of the controlling statute [California’s nursing law], the legislative history, other extrinsic evidence, and prior cases and AG [Attorney General] opinions.”
Certified Registered Nurse Anesthetists (CRNAs) are advanced practice registered nurses who personally administer approximately 32 million anesthetics to patients across the United States each year. CRNAs practice in every type of setting in which anesthesia is delivered and are the sole anesthesia professionals in most rural hospitals. Their safety record, supported by research data, is exceptional.
The federal supervision rule, however, is not a regulatory measure designed to ensure patient safety; in reality it is a requirement that hospitals must meet in order to receive Medicare reimbursement for anesthesia services, unless a state chooses to opt out of the rule as California has done.
California was the 15th state to opt out of the federal rule, following Iowa, Nebraska, Idaho, Minnesota, New Hampshire, New Mexico, Kansas, North Dakota, Washington, Alaska, Oregon, Montana, South Dakota, and Wisconsin. In September 2010, Colorado became the 16th opt-out state.
In the Interests of the People
When California opted out in July 2009, Gov. Schwarzenegger informed CMS of the opt-out in a letter that stated that after “[h]aving consulted with the California Board of Medicine and California Board of Registered Nursing and having determined that this exemption is consistent with state law, I have concluded that it is in the interests of the people of California to opt out of this requirement.”
The CSA and CMA lawsuit had requested that the court require the governor “to withdraw the ‘opt-out’ letter” and “to take no further action to effect” an opt-out of the federal regulation, and that the court “declare that, under California law, a CRNA is not authorized to administer anesthesia except under the supervision of a physician.” The court ultimately denied the physicians’ requests.
In the early stages of the lawsuit, the American Association of Nurse Anesthetists filed a declaration in the case in support of the governor’s and CANA’s position.
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