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California Society of Anesthesiologists et al v. the Superior Court of the City and County of San Francisco

March 15, 2012

CALIFORNIA SOCIETY OF ANESTHESIOLOGISTS ET AL., PLAINTIFFS AND APPELLANTS,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, DEFENDANT AND RESPONDENT; EDMUND G. BROWN, JR., AS GOVERNOR, ETC., REAL PARTY IN INTEREST AND RESPONDENT; CALIFORNIA ASSOCIATION OF NURSE ANESTHETISTS ETC., INTERVENOR AND RESPONDENT.



Trial Court: San Francisco Superior Court Trial Judge: Hon. Peter J. Busch (San Francisco City & County Super. Ct. No. CPF-10-510191)

The opinion of the court was delivered by: Ruvolo, P. J.

CERTIFIED FOR PUBLICATION

I.

Introduction

In order for hospitals, ambulatory surgical centers, and critical access hospitals to receive reimbursement under Medicare when a certified registered nurse anesthetist (CRNA) administers anesthesia, federal regulations require that the CRNA must be supervised by a physician. (42 C.F.R. §§ 482.52(a)(4), 416.42(b)(2), 485.639(c)(2).) However, other federal regulations provide that a state's governor has the discretion to make a request on behalf of the state to opt out of the physician supervision requirement after concluding, among other things, that the opt out is "consistent with State law." (42 C.F.R. §§ 482.52(c)(1), 416.42(c)(1), 485.639(e)(1).) On June 10, 2009, former Governor Arnold Schwarzenegger (the Governor) exercised his discretion under federal law and opted California out of the federal physician supervision Medicare reimbursement requirement.*fn1

Eight months later, the California Society of Anesthesiologists and the California Medical Association (collectively, appellants) filed a petition for writ of mandate and request for declaratory relief contending that the Governor "acted contrary to California laws that prohibit CRNAs from administering anesthesia without physician supervision." Appellants requested that a writ of mandate issue "commanding [the Governor] to withdraw the 'opt-out' letter" and for the trial court to declare that "opting-out of the requirement that CRNAs be supervised by physicians was not and is not consistent with California law." Appellants' writ petition was followed by a motion for summary judgment making the same arguments.

The trial court declined to issue a writ of mandate or to grant appellants' motion for summary judgment, concluding that the Governor did not abuse his discretion in determining that the opt out was consistent with state law. As the trial court recognized, the controlling statutory provision on the scope of practice of CRNA's in California does not require them to administer anesthesia under physician supervision. Instead, it permits CRNA's to administer anesthesia "ordered by" a physician. (Bus. & Prof. Code, § 2725, subd. (b)(2).)*fn2 We agree that the plain meaning of section 2725, subdivision (b)(2) does not require physician supervision of CRNA's. (§ 2725, subd. (e).) Consequently, we affirm the trial court's judgment.

II.

Facts and Procedural History

This case presents no material issues of disputed fact. Fundamentally, it involves the scope of practice of CRNA's in California. CRNA's are both registered nurses and anesthesia specialists. In order to be certified as CRNA's, they must complete an undergraduate degree in nursing and have two to three years of postgraduate education, including hundreds of hours of clinical work, and "the performance of direct patient care by completing cases encompassing a wide variety of anesthesia experiences." In addition, CRNA's must pass a national certification exam, and complete a continuing education program every two years.

In the underlying litigation, undisputed evidence has been presented that in many California medical facilities, especially in rural and underserved areas, CRNA's have been routinely administering anesthesia for decades pursuant to a physician order but without physician supervision. Their function is described as follows: "Typically, a surgeon (who is responsible for directing the patient's care) orders the anesthesia On receiving that order, the anesthesia provider, whether CRNA or anesthesiologist, performs the pre-anesthesia evaluation, administers the anesthetic to the patient, monitors the patient's reaction during surgery, and conducts the post-anesthesia evaluation after the patient recovers. . . ." The record does not reflect that any disciplinary action has ever been taken against a CRNA for administering anesthesia without physician supervision.

The current dispute arises from the Governor's decision to opt out of three related federal Medicare regulations that require physician supervision of CRNA's as a condition of Medicare reimbursements. The first regulation applies only to hospitals, and requires CRNA's to administer anesthesia "under the supervision of the operating practitioner or of an anesthesiologist who is immediately available if needed." (42 C.F.R. § 482.52(a)(4).) The second and third regulations, applicable only to critical access hospitals and ambulatory surgery centers, require supervision by the operating physician or practitioner. (42 C.F.R. §§ 485.639(c)(2), 416.42(b)(2).)

Despite these requirements, another Medicare regulation provides that a state can opt out of these three federal regulations requiring physician supervision, thus enabling hospitals and surgery centers to remain eligible for Medicare reimbursements. To opt out of the physician supervision requirement, the state's governor must submit a letter to the Centers for Medicare and Medicaid Services*fn3 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).) The governor's request to opt out may be submitted or withdrawn at any time. It is "effective upon submission." (42 C.F.R. §§ 482.52(c)(2), 416.42(c)(2), 485.639(e)(2).)

California's governor determined that all three of the federal requirements had been met after reviewing information pertaining to the use of CRNA's in California medical facilities, responses from the California Board of Registered Nursing and Medical Board of California, and letters from numerous hospital executives, administrators, and surgeons. Eventually, the Governor sent a letter to the Centers for Medicare and Medicaid Services on June 10, 2009, stating, "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." As set forth in the federal regulations, the Governor's request was granted upon submission. At this point, California was the 15th state to opt out of the federal CRNA physician supervision requirement.*fn4

It is important at the outset to clarify the practical effect of the Governor's decision to opt out of the federal supervision requirement. Notably, appellants repeatedly make sweeping claims, such as the Governor "eliminated the physician supervision requirement from California law" by issuing the opt out, and that "[t]he effect of the decision, at least for purposes of those physicians, nurse anesthetists, patients, and hospitals that look to Medicare for reimbursement, will be to eliminate physician supervision of anesthesia services." In reality, the result of the opt out is that California hospitals, critical access hospitals, and ambulatory surgery centers are exempted from federal rules making physician supervision a prerequisite for Medicare reimbursements. Whether physicians should supervise CRNA's, or whether CRNA's should be used at all, are questions that have to be decided by each individual medical facility because "hospitals can always exercise stricter standards than required by State law." (66 Fed.Reg. 56762, 56765 (Nov. 13, 2001).) Accordingly, a hospital or other medical facility may require physician supervision of CRNA's if it deems it appropriate, irrespective of the state's opt out.*fn5 The Governor's opt-out decision merely gives California facilities the option of using CRNA's to administer anesthesia without physician supervision without jeopardizing their Medicare reimbursements.

On February 2, 2010, following the Governor's refusal to rescind the opt-out letter, appellants filed the present case seeking a writ of mandate directing the Governor to withdraw the opt out as inconsistent with California law. Appellants also sought a general declaration that California law requires CRNA's to administer anesthesia under physician supervision. After the California Association of Nurse Anesthetists was allowed to intervene, the parties filed cross-motions for summary judgment.

On December 23, 2010, the superior court issued an order denying appellants' writ petition and motion for summary judgment, and granting summary judgment for the Governor and the California Association of Nurse Anesthetists (collectively, respondents). The court's written decision began by observing that the "only actual conduct challenged by [appellants] is . . . the Governor's attestation to CMS [Centers for Medicare and Medicaid Service] that the opt-out is consistent with California law." The court emphasized that appellants' writ petition and motion for summary judgment did not challenge the other two attestations made by the Governor; namely, that he had: (1) consulted with the state's Board of Medicine and Board of Registered Nursing, and (2) determined that the opt out was in the bests interests of the state's citizens.

The trial court denied all of appellants' requested relief, observing that the federal government structured the federal opt-out rules to "assign[] the question of whether the opt-out is consistent with state law to the Governor's discretion, whom CMS [Centers for Medicare and Medicaid Service] viewed as 'best suited' to make that determination." Thus, the court determined that it "must respect that structure" and not ...


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