About one year ago, a post where I mentioned a study of CRNA safety brought the most comments I have had on my blog. Well, the CRNA issue is back in a California Court ruling in California Society of Anesthesiologists v. Brown, 204 Cal. App. 4th 390. All quotes included herein are from the ruling and internal citations are omitted.
On June 13th, the California Supreme Court denied a Petition for Review from the California Medical Association and the California Society of Anesthesiologists appealing a ruling from the California First Court of Appeals. That ruling dealt with a challenge to California’s opting out of a direct physician supervision requirement for Medicare reimbursement for anesthesia services. In that matter, the appeals court held that former California Governor Arnold Schwarzenegger did not abuse his discretion when he certified to Medicare that “Having 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.”
There are three matters which the Governor was required to certify with this statement. It is interesting, however, that the challenge only concerned itself with the ‘consistent with state law’ certification from the Governor. In my previous CRNA posts and in the article they referenced, the argument centered on patient safety issues – arguable the ‘in the interests of the people’ certification made by the Governor – rather than any state law issues. In fact, the appeals court allowed an amicus brief on the matter from The San Diego Center for Patient Safety, but curtly dismissed the issue as moot because the appellant didn’t bring the issue up at the trial court or on appeal:
“Neither in the trial court nor on appeal have appellants challenged the other attestations made by the Governor—including that the opt out was in the best interests of the state’s citizens. Consequently, we need not and do not address concerns raised by amicus curiae about patient safety if CRNA’s administer anesthesia without physician supervision.”
By failing to challenge the issue of safety, the physician groups driving the appeal missed their opportunity to overturn the lower court as the appeals court issued a rather sharply worded holding that found the Governor’s certification was not an abuse of discretion and was supported by California law:
In the final analysis, 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 CRNA’s are allowed to administer anesthesia in California without physician supervision. Specifically, the Nursing Practice Act, by express statutory language, allows CRNA’s to administer anesthesia in California on a physician’s order but without physician supervision. This conclusion has also been reached on numerous occasions by the Board of Registered Nursing, the agency with expertise in CRNA scope of practice matters, and is consistent with the determination of other relevant state agencies and officials, including the Attorney General. The contrary authority cited by appellants to support a supervision requirement is insufficient to render the Governor’s actions “palpably unreasonable and arbitrary” so as “to indicate an abuse of discretion as a matter of law.” Consequently, the Governor’s attestation to the Centers for Medicare and Medicaid Services that the opt out is consistent with California law did not constitute an abuse of discretion. (italics in original)
Score one for the CRNA’s as this keeps California as one of sixteen states that allow CRNA’s to practice without direct supervision – the rest are Washington, Oregon, Iowa, Nebraska, Idaho, Minnesota, New Hampshire, New Mexico, Kansas, North Dakota, Alaska, Montana, South Dakota, Wisconsin and Colorado.