2008 SUMMARY OF STATE ACTIVITIES 1 Prepared by Lisa Percy Albany, J.D. Manager, ASA State Legislative & Regulatory Issues.

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1 2008 SUMMARY OF STATE ACTIVITIES 1 Prepared by Lisa Percy Albany, J.D. Manager, ASA State Legislative & Regulatory Issues OPT-OUTs To date, the last opt-out was three years ago. Fourteen states have opted out of the federal requirement that a nurse anesthetist administer anesthesia under the supervision of the operating practitioner or anesthesiologist who is immediately available if needed. The list includes: Iowa, Idaho, Nebraska, Minnesota, New Hampshire, New Mexico, Kansas, North Dakota, Washington, Alaska, Oregon, Montana, South Dakota and Wisconsin. However, Utah and Colorado remain on an opt-out watch list. Nurse anesthetists in Utah have brought this issue to the attention of the lieutenant governor. While Utah Hospital Association opposes an opt-out, a subcomponent of rural hospitals has expressed concern regarding the ability to meet the definition of immediately available as found in CMS Interpretive Guidelines. Utah Society of Anesthesiologists has met with rural hospital administrators to discuss those concerns. Most recently, a joint hearing of the nursing, medical and osteopathic boards was held to vote on whether or not the governor should opt-out. The medical and osteopathic boards unanimously opposed the opt-out. Additionally, the public member of the nursing board opposed the opt-out. 486 comment letters were submitted. Of those letters, 483 opposed an opt-out; 3 supported an opt-out. Colorado remains on the opt-out watch list after being on the list during the former governor s term. The lawsuit brought by Colorado Society of Anesthesiologists (CSA) in 2002 against the previous governor successfully prevented an opt-out during his term. As Governor Ritter begins his first term, he has been informally approached by nurses and rural hospitals. CSA has met with the governor s health aide to express its opposition. CSA is also monitoring efforts to weaken nurse anesthetist scope of practice (see next section). NURSE ANESTHETIST SCOPE of PRACTICE Colorado Governor Ritter issued an Executive Order commissioning the Collaborative Scopes of Care Study and created the Collaborative Scopes of Care Advisory Committee (the "Advisory Committee"). The Executive Order states that health manpower studies reveal that there are insufficient numbers of providers, especially physicians and dentists, to meet the current needs of Coloradans. This problem is especially acute in rural and other underserved communities, where many individuals simply have no access to health care regardless of whether they are insured or can otherwise afford care. 1 This document is a summary of state legislative, regulatory and judicial activities; it is not a comprehensive list of the issues being tracked.

2 The Committee will look at the approach adopted by other states, which is to examine the potential collaborative roles of other health care providers, including advanced practice nurses, physician assistants, and dental hygienists in order to meet the medical and dental needs in communities. A representative of CSA serves on the Advisory Committee. Additionally, CSA is monitoring opportunities to expand nurse anesthetists scope of practice via the sunset review of the Nurse Practice Act and a proposal by the nursing board related to prescriptive authority of APNs. Iowa In 2007, Iowa Medical Society s House of Delegates adopted a resolution stating that interventional pain management and fluoroscopic evaluation are the practice of medicine. Additionally, Iowa Nursing Board adopted a position statement concluding that it is not within the scope of practice of a registered nurse to administer propofol, but rather limits its administration to trained anesthesia providers (including nurse anesthetists). Subsequently, the Iowa Board of Nursing issued a proposal that would have prohibited RNs or ARNPs, with the exception of nurse anesthetists, from administering anesthetic agents (propofol, ketamine) during any operative invasive or diagnostic procedure in any setting. However, the Board rescinded its proposal and 2007 position statement regarding propofol and plans to review the comments the Board received. Iowa Society of Anesthesiologists continues to monitor this issue. Louisiana The Louisiana Society of Anesthesiologist and ASA continues to monitor the lawsuit in Louisiana regarding interventional pain management. The Louisiana State Board of Nursing and Louisiana Association of Nurse Anesthetist (LANA) appealed the trial court s January ruling, which issued a declaratory judgment that: 1) the practice of interventional pain management is not within the scope of practice of a nurse anesthetist; 2)the practice of interventional pain management is solely the practice of medicine; 3) the advisory opinion issued by the nursing board is an effort to substantively expand nurse anesthetist scope of practice and is an improper attempt at rulemaking; 4) a permanent injunction issue prohibiting the nursing board from enforcing the statement. Plaintiffappellee Spine Diagnostics Center of Baton Rouge, Inc. and American Society of Interventional Pain Physicians filed a brief in response to the nurses appeal of the trial court s ruling. In their brief, the parties argue that the trial court did not abuse its wide discretion in issuing a declaratory judgment and that a permanent injunction was reasonable in light of the evidence and testimony presented at trial. The Court of Appeal has not yet issued a ruling. Additional information concerning the lawsuit can be found at: Maryland The nursing board issued a proposal that would have eliminated all references to anesthesiologists in the nurse anesthetist scope of practice regulations. The proposal would have eliminated language requiring that a nurse anesthetist collaborate and consult with a physician who has special training in the field of anesthesiology, who administers anesthesia on a regular basis and who devotes a substantial portion of his or her medical practice to the practice of anesthesiology. The nurse anesthetist need only collaborate with a physician or dentist who may have no knowledge of the practice of anesthesiology. The Maryland Society of Anesthesiologist (MSA) opposed the proposal

3 because Maryland law requires any amendment regarding scope parameters to be approved jointly by both the nursing and medical boards. Subsequently, the nursing board rescinded the proposal. MSA continues to monitor this issue. Missouri There has been a continued effort for the past few years to grant prescriptive authority for controlled substances to advanced practice registered nurses (APRNs). APRNs include nurse anesthetists, nurse practitioners, nurse midwives, and nurse specialists. This effort continued in S.B. 724 authorizes APRNs, excluding nurse anesthetists, who 1) hold a certificate of controlled substance prescriptive authority from the nursing board and 2) who is delegated the authority to prescribe controlled substances under a collaborative practice arrangement to prescribe any controlled substances listed in Schedules III, IV and V. Schedule III narcotic controlled substance prescriptions must be limited to a 120-hr supply without refill. A collaborative practice arrangement may delegate to an APRN the authority to administer, dispense, or prescribe controlled substances listed in Schedules III-V except that the arrangement cannot delegate the authority to administer such controlled substances for the purpose of inducing sedation or general anesthesia for therapeutic, diagnostic, or surgical procedures. A nurse anesthetist must be permitted to provide anesthesia services without a collaborative practice arrangement provided that the nurse is under the supervision of an anesthesiologist or other physician, dentist, or podiatrist who is immediately available if needed. However, this bill does not prohibit or prevent a nurse anesthetist from entering into a collaborative practice arrangement, except that the arrangement may not delegate the authority to prescribe any controlled substances listed in Schedules III, IV, and IV. The nursing board may grant a certificate of controlled substance prescriptive authority to an APRN who has completed 1) an advanced pharmacology course that includes preceptorial experience in the prescription of drugs, medicines, and therapeutic devices; 2) a minimum of 300 hours of preceptorial experience in the prescription of drugs, medicines, and therapeutic devices with a qualified preceptor; and 3) a minimum of 1,000 hours of practice in an APRN category prior to application for a certificate of prescriptive authority. Lastly, controlled substance prescribing authority must be delegated in the collaborative practice agreement with a physician who has an unrestricted DEA number and who is actively engaged in a practice comparable in scope, specialty, or expertise to that of the APRN. Enacted. Additionally, Missouri State Board of Registration for the Healing Arts issued an opinion addressing whether state law allows the injection, under fluoroscopic control, of therapeutic agents around the spinal cord by APNs. The opinion of the board is that APNs currently do not have the appropriate training, skill or experience to perform these injections. Nebraska L.B. 928 expanded the scope of practice of a nurse anesthetist to include the use of fluoroscopy; however, this bill places restrictions on its use, which were not

4 included in last year s bill. L.B. 928 authorizes nurse anesthetists to use fluoroscopy in conjunction with a licensed medical radiographer and in connection with the performance of authorized duties and functions upon 1) successful completion of appropriate education and training as approved jointly by the Department of Health and Human Services and Board of Advanced Practice Registered Nurses; and 2) a determination regarding the scope and supervision of such use. The determination shall be the joint responsibility of the governing board of the hospital, medical staff, and nurse anesthetist personnel. Enacted. New Jersey Legislation would codify existing regulations governing the administration of anesthesia in the hospital, ambulatory surgical facility, and office setting. A.B would require the administration of general or regional anesthesia in a hospital or ambulatory surgical facility to be performed by an anesthesiologist or nurse anesthetist under the supervision of an anesthesiologist or physician who is privileged by a hospital to administer or supervise the administration of anesthesia services and who is immediately available during surgery. With respect to conscious sedation, the administration or monitoring would be performed by an anesthesiologist; physician who is privileged by a licensed hospital; nurse anesthetist under the supervision of an anesthesiologist or privileged physician and who is immediately available during the surgery; or registered professional nurse, for purposes of administering supplemental doses only. In the office setting, the administration or monitoring of general or regional anesthesia would be performed by an anesthesiologist or nurse anesthetist supervised by an anesthesiologist or physician privileged by a licensed hospital or medical board to provide general or regional anesthesia, who in either case is physically present during surgery. Additionally, A.B would allow for the administration and monitoring of conscious sedation by a physician who is privileged to provide conscious sedation; a nurse anesthetist who is supervised by such privileged physician and who is physically present during surgery; or by a registered professional nurse or physician assistant who is trained and has experience in the use and monitoring of anesthetic agents, at the direction of a physician privileged to provide conscious sedation. Such physician would be physically present during surgery. Withdrawn. Oklahoma The Attorney General issued an opinion in response to requests from the nursing and medical boards regarding the scope of practice of nurse anesthetists under the Oklahoma Nurse Practice Act. The Attorney General concludes that nurse anesthetists may administer anesthesia in any context, but may order, select and obtain anesthesia only in the perioperative and periobstetrical periods. Additionally, a doctor does not aid or abet the unauthorized practice of medicine if the doctor refers a patient to a nurse anesthetist or supervises a nurse anesthetist who administers anesthesia for pain management purposes outside the perioperative or periobstetrical period

5 ANESTHESIOLOGIST ASSISTANTS Oklahoma becomes the twelfth jurisdiction to license anesthesiologist assistants (AAs). Oklahoma joins Alabama, District of Columbia, Florida, Georgia, Kentucky, Missouri, New Mexico, North Carolina, Ohio, South Carolina, and Vermont. New Mexico S.B. 485 would have expanded who could be licensed as an AA. Exiting AA licensure law defines AAs as persons employed by a university in New Mexico with a medical school and anesthesiologists as employees of the Department of Anesthesiology of a medical school in New Mexico. S.B. 485 would have eliminated both limitations found in those definitions so that AAs could practice in facilities beyond the university setting. Moreover, S.B. 485 would have expanded the number of AAs who could be supervised by an anesthesiologist. Current law limits the number to three AAs, except in emergency cases. Under this bill, the number would have been the maximum number of supervised providers permitted by the Centers for Medicare and Medicaid Services (1:4). Died in Committee. Oklahoma Under the direct supervision of an anesthesiologist, AAs may obtain a comprehensive patient history and present the history to the supervising anesthesiologist. AAs may pretest and calibrate anesthesia delivery systems and monitor, obtain and interpret information from those systems and monitors. The AAs may assist the anesthesiologist with the performance of epidural and spinal anesthetic procedures, as well as assist with the implementation of monitoring techniques. The AA may place special peripheral and central venous and arterial lines for blood sampling and monitoring as appropriate. After unanimously passing the House, S.B was enacted into law, effective November 1, Utah H.B. 477 would have licensed and authorized AAs to administer anesthesia under the supervision of a physician specializing in anesthesia. The supervising anesthesiologist would have been actively engaged in clinical practice and immediately available on site to supervise the AA. The practice of an AA would have been defined by administrative rule. H.B. 477 would have created an AA licensing board that consists of four people licensed in accordance with the AA Licensing Act and one member of the general public. The Division of Occupational Health and Professional Licensing could have issued a temporary license to an AA who had not yet passed the certification examination offered by the National Commission for Certification of Anesthesiologist Assistants, but who had met the statutory requirements concerning temporary licenses. Died in Committee. OFFICE-BASED SURGERY The medical boards in Arizona and Indiana adopted office-based surgery regulations. 24 states regulate the office-based surgery setting via statute, regulation, or guidelines. Draft guidelines and regulations are currently being developed in Michigan and Washington, respectively.

6 Arizona The Arizona Medical Board adopted regulations that govern the use of sedation in the office setting. Physicians who use general anesthesia in the office or outpatient setting that is not part of a licensed hospital or ambulatory surgical center must obtain a health care institution license as required by the Arizona Department of Health Services. The rules address the following: administrative procedures, procedure and patient selection, sedation monitoring standards; perioperative and patient discharge; emergency and transfer provisions. The physician who performs office-based surgery using sedation must establish, document, and implement written policies and procedures that cover patient s rights, informed consent, patient transfer, and patient care in an emergency. Additionally, such physician must ensure staff members who assist or health care professionals who participate in surgery have sufficient education, training, experience to perform the assigned duties and perform only those acts that are within their scope of practice. The physician must also ensure that the office has all equipment necessary for the physician and health care professional administering the sedation to rescue a patient should the patient enter into a deeper state of sedation than what was intended by the physician. During surgery, the physician performing surgery must be physically present in the room where the surgery is performed. After surgery, a physician must be at the office and sufficiently free of other duties to respond to an emergency until the post-sedation monitored is discontinued. If using deep, moderate or minimal sedation, the physician or a health care professional certified in ACLS, PALS must be at the physician s office and sufficiently free of other duties to respond to an emergency until discharge. For minimal sedation, the physician or healthcare professional can be BLS-certified. Prior to surgery, health care professionals and staff members must receive instruction in the policy and procedures for emergencies, office evacuation, and patient transfer. When performing surgery, the physician shall not use any drug or agent that would trigger malignant hyperthermia. The rules also provide for the type of equipment that must be available should an emergency occur. The physician performing the surgery must ensure that all the equipment is maintained, tested, and inspected according to manufacturer specifications. Indiana The Medical Licensing Board of Indiana unanimously adopted office-based surgery regulations, which mirror the regulation that had been adopted by the medical board in Shortly after its initial adoption, the rules were sent to the Attorney General for review; however, the Attorney General informed the medical board that he could not approve the regulations due to the failure of the board to provide the public with 21-day notice of a hearing as required by Indiana law. As a result, the medical board withdrew the regulations it had previously adopted and reissued the previously adopted regulation as a proposal. During a medical board hearing in February, Johnson & Johnson and Ethicon Endo- Surgery offered an amendment that would have carved out an exception of the propofol safeguards provided in the rule. The safeguards prohibit a health care provider from

7 administering or monitoring an anesthetic agent containing alkylphenols unless such provider is trained in the administration of general anesthesia and is not involved in the conduct of the procedure. The purpose of Johnson & Johnson s amendment was to accommodate their computer-assisted personalized sedation, or CAPS. The proposed amendment would have excluded the propofol safeguards if a registered nurse uses an FDA-approved delivery device to administer moderate sedation containing alkyphenols under the direct supervision of a physician. The medical board rejected the amendment. Testimony by the Indiana Society of Anesthesiologists (ISA) reminded the medical board that the FDA has approved drugs that subsequently were found to have posed unexpected problems. ISA requested that the board refrain from adopting Johnson & Johnson s amendment until further studies are completed concerning the device s safety in the hospital and surgical center settings before allowing its use in the office-based setting. PHYSICIAN PAYMENT California The California Society of Anesthesiologists continues to address balance billing at the legislative, regulatory, and judicial levels. Since 2006, the Department of Managed Health Care (DMHC) issued three sets of proposed regulations concerning balance billing. Each time, California Society of Anesthesiologist (CSA) submitted written comments and testified in opposition to the proposal. The first two proposals were withdrawn by DMHC. The most recent proposal has been adopted by DMHC and approved by the Office of Administrative Law. This regulation deems balance billing of emergency services by providers, including, but not limited to, hospital and hospitalbased physicians, as an unfair billing practice. California Medical Association and others have petitioned the court to seek an injunction of the regulations. In the petition, petitioners argue that the regulation is unlawful and unenforceable because 1) DMHC lacks the authority to regulate doctors; 2) DMHC did not meet a procedural requirements that require an analysis of a potential anti-competitive impact of the regulation; 3) California Legislature, not DMHC, has the sole authority to regulate this issue; and 4) the regulations are counter to the Knox Keene Act s intent to ensure that HMOs provide adequate networks of care for their policyholders. A hearing is scheduled for November 21, Enacted by the California Legislature and subsequently vetoed by the Governor, S.B. 981 would have prohibited balance billing by non-contracting emergency physicians who provide services at general acute care hospitals. The definition of emergency physicians would have included a non-physician health care practitioner who provides emergency services under the supervision of an emergency physician, but excluded physician specialist who are called into the emergency department. S.B. 981would have created a dispute resolution process for payment disputes between non-contracting emergency physicians and heath plans, or their contracting risk-bearing organizations. New York The New York State Insurance Department and New York State Department of Health held a joint hearing on Surprise Out-of-Network Medical Bills in

8 October. The New York State Society of Anesthesiologists testified and offered its support of legislation that would 1) hold health plans accountable to develop adequate networks and for contractual promises made to employers and patients; 2) allow the Insurance Department to regulate PPO Plans and provide the same protections to patients or employers that is afforded to HMO subscribers; 3) oppose rate setting by health plans for out-of--network physician and hospital payments; 4) uphold the right of anesthesiologists to set their rates for services at fair market value; 5) requires healthcare plans to reveal their methodology for handling out of network claims; and 6) requires the magnetic strip on health insurance cards to be utilized in conveying immediate information regarding network status and payment information. Texas Legislation enacted in 2007 directs the Texas Department of Insurance to appoint an advisory group to conduct a study of the adequacy of health plans facilitybased physician networks. A report of its findings must be submitted to the Texas Legislature by December 1, A representative of the Texas Society of Anesthesiologists serves on the advisory group.

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