Florida Appellate Court Invalidates Anesthesiologist Supervision Rule

Florida Certified Registered Nurse Anesthetists (CRNAs) may now administer anesthesia for Level III office surgery without anesthesiologist supervision. In July 2004, a Florida appellate court struck down a Florida Board of Medicine (BOM) rule for Level III office surgery requiring anesthesiologist supervision of CRNAs. On September 17, 2004, the court cleared the way for the July 2004 decision to take effect. (Level III means surgery that involves, or reasonably should involve, general anesthesia or major conduction anesthesia and pre-operative sedation. Level III also includes procedures in which IV sedation is used and the patient loses consciousness and vital reflexes.)

The Florida appellate court rulings concerned the legal challenge brought by Florida CRNA Victor Ortiz. The anesthesia rule, which was implemented in 2002, forced Ortiz and many other CRNAs who had previously provided anesthesia in physicians’ offices out of office practice. Most surgeons concluded that it was not economical or necessary to have both an anesthesiologist and a CRNA in their office.

The court’s July decision invalidating the restrictive rule held that the BOM exceeded its rulemaking authority by requiring an anesthesiologist to be present for Level III office surgery. The court noted that the Florida Nurse Practice Act authorizes CRNAs to provide anesthesia services in accordance with a protocol approved by the medical staff of the facility in which the services are performed. According to the court, the anesthesiologist supervision requirement also contravenes a medical practice act provision prohibiting the BOM from restricting services provided by a registered nurse under the supervision of a physician. Although the BOM argued that its rule does not restrict CRNAs, the court disagreed, stating, "[The BOM] has done indirectly what it cannot do directly."

The Florida Association of Nurse Anesthetists (FANA) previously challenged the anesthesiologist supervision requirement in a different lawsuit.  FANA won that case at the administrative law judge (ALJ) level, but a different appellate court reversed the decision. Although the appellate court in the FANA lawsuit ruled that the ALJ had used the wrong standard of review (a technical legal ground), that appellate court did not question the ALJ's factual findings.  In the Ortiz case, the appellate court specifically noted that the "parties agree that patient safety is not an issue in this proceeding." The appellate court in Ortiz also cited with approval the ALJ's factual finding in the FANA lawsuit that there was no evidence to indicate any significant difference in patient outcomes regardless of whether a CRNA or an anesthesiologist administered the anesthesia.

To review the appellate court's July 2004 ruling in the Ortiz case, go to: http://www.aana.com/legal/mt/ortiz.asp.

On Sept. 17, the court denied the BOM's motion for rehearing and the Florida Society of Anesthesiologists’ "friend of the court" motion for rehearing.

The BOM may seek to appeal the court's ruling to the Florida Supreme Court.  If the BOM appeals, it may also try to obtain a stay of the ruling pending the Florida Supreme Court's review of the case.  Unless and until a stay is issued, the BOM anesthesiologist supervision rule is void, and CRNAs are permitted to administer anesthesia for Level III office surgery without anesthesiologist supervision.

For years, Florida CRNAs have diligently fought this anesthesiologist supervision rule. No state currently has a law or regulation in effect that mandates anesthesiologist supervision of CRNAs.

Source: American Association of Nurse Anesthetists