On November 17, 2010, the Alabama State Board of Medical Examiners (Medical Board) tabled a proposed rule that would likely have prohibited CRNA interventional pain management practice. See the proposed rule that was tabled. This means that the Medical Board has decided to indefinitely postpone dealing with the issue.
The proposed rule’s language was derived in part from the Louisiana State Board of Medical Examiners Position Statement that was a central aspect of the Louisiana pain management litigation. (See the Louisiana position statement.) The Alabama proposed rule stated, in section 540-X-15-.05, “Delegation Prohibited”:
Physicians who utilize these procedures for interventional pain management purposes may not delegate to non-physician personnel the authority to utilize such procedures to diagnose, manage or treat chronic pain patients. To do so would necessarily permit the non-physician to exercise independent medical judgment, perform diagnostic testing, render diagnoses, and provide treatment or recommendations for treatment of patients suffering with chronic pain. Such determinations are essentially diagnostic and treatment decisions that can have critical implications for the patient, are reserved solely to those licensed to practice medicine, and are not delegable to a non-physician by physician prescription, direction or supervision.
The Alabama Association of Nurse Anesthetists (ALANA) worked to defeat the rule, submitted written comments opposing the rule, and testified against the rule at an October 2010 Medical Board hearing. The AANA actively assisted ALANA with its efforts.
The FTC Cautions the Medical Board
Several other parties also weighed in on the issue. In particular, the Federal Trade Commission’s Office of Policy Planning, Bureau of Economics, and Bureau of Competition sent a letter to the Medical Board outlining its concerns with the proposed rule. You can read the FTC letter and the FTC press release concerning the letter, which are positive for CRNAs, (This takes you to the press release; on the right-hand side of the page under “Related Items” is a link to the FTC letter).
In part, the press release stated:
In a comment to the Alabama State Board of Medical Examiners, Federal Trade Commission staff said that the Board’s proposed rule – which would require that interventional pain management services be provided exclusively by doctors – appears overly restrictive and likely detrimental to Alabama patients. The proposed rule would prohibit certified registered nurse anesthetists (CRNAs) from performing, under physician supervision, many pain management procedures that CRNAs currently are allowed to provide under physician supervision, such as providing palliative care.
The comment explained that the proposed rule would reduce the availability and raise the prices of chronic pain management services. In particular, the proposed rule could be especially burdensome for some of the most vulnerable citizens of Alabama. For example, CRNAs disproportionately serve smaller, rural hospitals, and hospice and palliative care patients may depend on CRNAs for chronic care. FTC staff noted that the proposed rule provided no evidence that the current practice harms patients, and studies have found that CRNAs provide pain-management services safely.
[Please note that pursuant to Alabama facility regulations, CRNAs work under physician supervision in Alabama.]
The FTC press release also noted that the Commission voted unanimously to authorize FTC staff to submit the comments.
The FTC’s submission of this letter is a significant event – to our knowledge the FTC has never sent such a letter concerning a pending state legislative or regulatory issue concerning nurse anesthetists. An article highlighting the FTC letter appeared in the Birmingham News in November 2010. Please see FTC Urges Alabama Medical Panel to Not Adopt Rules on Who Can Give Pain Treatments.
While the FTC letter is important, it was just one of many submissions to the Medical Board. For example, the Medical Board received several letters opposing the proposed rule, including letters from the Alabama Board of Nursing, the Alabama Hospital Association, the Alabama Psychological Association, the Speaker of the Alabama House of Representatives, another current legislator, and the Alabama Nurses Association. Unsurprisingly, the American Society of Anesthesiologists submitted a letter supporting the Medical Board rule.
This proposed rule that has been tabled directly contradicted an earlier March 2010 Alabama Board of Nursing Declaratory Ruling concerning CRNA authority to perform pain management procedures under Alabama law. Please see 310 BON Declaratory Ruling.
The AANA’s position is that management of both acute and chronic pain is within the professional scope of practice of CRNAs and is not exclusively the “practice of medicine.” (See AANA Position Statement Number 2.11 Pain Management, and Considerations; Scope and Standards for Nurse Anesthesia Practice)
Please note that Louisiana continues to be the only state in the nation to prohibit all CRNA “interventional” pain management practice. The Louisiana litigation is not binding in any other state and directly affects CRNAs practicing in Louisiana only.