Last week, Governor Bill Ritter announced that Colorado will become the 16th state to opt-out of a federal Medicare rule that requires physician supervision of certified registered nurse anesthetists (CRNAs) in hospitals. States have the authority to opt-out of the supervision requirement by notifying CMS in writing when the governor consults with the state’s boards of medicine and nursing, determines that opting out is consistent with state law, and decides that invoking the supervision exemption is in the best interests of the state’s citizens. 66 Fed. Reg. 56762 (Nov. 13, 2001), codified at 42 CFR § 482.52(c). The letter was submitted following recent determinations by the Colorado Boards of Medicine and Nursing, respectively.
Governor Ritter’s letter was submitted to the Centers for Medicare and Medicaid Services (CMS) on September 28, 2010, making the opt-out effective immediately for rural and Critical Access Hospitals in Colorado. These hospitals must still comply with the Medicare Conditions of Participation, but may now do so and receive Medicare reimbursement for anesthesia service provided by unsupervised CRNAs.
Later that same day, however, the Colorado Medical Society and the Colorado Society of Anesthesiologists filed a complaint in Denver District Court challenging the CRNA opt‑out and seeking declaratory and injunctive relief. The lawsuit contends that the opt-out would jeopardize patient safety and is contrary to state law, arguing that the administration of anesthesiology is within the scope of medical rather than nursing practice. It also contends that the opt-out decision violates the state’s “captain of the ship” doctrine, which puts surgeons in charge of operating room personnel and makes them potentially liable for the negligence of those individuals. The physician groups seek to compel the Governor to rescind his letter to CMS, reinstating the physician supervision requirement for CRNAs.
The Colorado Hospital Association strongly supported the Governor’s action, believing the opt-out will promote better access to quality health care in many rural communities. The opt‑out was also supported by the Colorado Nurses Association and the Colorado Association of Nurse Anesthetists, among others.
Since the opt-out became available under federal law in 2001, at least two other states have litigated the issue. The State of Montana prevailed in litigation, and in California, the state’s opt-out decision is currently being disputed in court. What ultimately transpires in Colorado now awaits further developments in court. We will continue to post updates regarding the litigation on this blog as appropriate.
For a copy of the letter submitted by Governor Ritter to CMS, click here, and a copy of the pending complaint, please click here.
Speak Your Mind