Vital Times 2020 - 89

California, the Business and Professions Code (BPC)
Section 2052 makes it illegal to diagnose, treat, or
operate for any physical or mental condition without
a valid physician and surgeon's certificate. It is this
diagnosis and treatment that most would agree defines
the practice of medicine, and is also what the State of
California declares it to be in law.

California's Opt-Out, and the Fallacy
of " Independent Practice "
How exactly did California opt out of Centers for
Medicare & Medicaid Services (CMS) requirements for
physician supervision for nurse anesthetists (CMS Code
of Federal Regulations 482.52)? Put simply, all that is
required is for the Governor to submit a letter to CMS
stating that he has concluded it is in the best interest
of the state's citizens to opt-out, and that the opt-out
is consistent with state law. The law governing this in
our state is the Nursing Practice Act in the California
Business and Professions Code (BPC):
Section 2725 (b)(2) Direct and indirect patient
care services, including, but not limited to, the
administration of medications and therapeutic
agents, necessary to implement a treatment, disease
prevention, or rehabilitative regimen ordered by and
within the scope of licensure of a physician, dentist,
podiatrist, or clinical psychologist, as defined by
Section 1316.5 of the Health and Safety Code.
Interestingly, the barebones requirements above
from CMS for the Governor to opt-out do not say
that the Governor has to be correct in his conclusion
that it is consistent with state law. It is at his or her
discretion. Subsequently, the joint California Society of
Anesthesiologists (CSA)/California Medical Association
(CMA) legal challenge to the opt-out back in 2009-2012
was based on arguing that Governor Schwarzenegger's
submission of the opt-out letter to CMS was, in fact,
inconsistent with this state law. The argument was that
the above law meant that nurses required supervision in
order to administer anesthesia.

Ultimately, this argument failed because, as is strictly
true and as the appellate courts stated, " California
does not require [nurse anesthetists] to administer
anesthesia under physician supervision. Instead, it
permits [nurse anesthetists] to administer anesthesia
ordered by a physician. " Nowhere does it say that they
require physician supervision. They go on, " 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 [nurse anesthetists], or
whether [nurse anesthetists] 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. "
And so, this one appellate ruling clarifies two important
things:
1.	 The opt-out was a reimbursement decision, not
one of scope. It made it so that facilities could still
receive Medicare payments for anesthesia services
if not supervised by an anesthesiologist...but did
not say it was appropriate for nurses to practice
unsupervised.
2.	 It clarifies that the term " independent practice " is
a misnomer. According to both state law and the
appellate court, for a nurse anesthetist to administer
anesthesia, they require an order from a physician.
(What sufficiently constitutes an " order, " however, is
not entirely clear.)
Please take note, California state law per BPC 2725(b)(2)
says that nurses cannot administer medications without
an order by a physician. Stated another way, our law says
that nurse anesthetists cannot administer anesthesia
without a physician order. Nurse anesthetists do not, in
fact, have " independent practice " rights in California, and
we would do well to emphasize this and move away from
this terminology.

Annual Publication 2020

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Vital Times 2020

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https://www.nxtbook.com/allen/csvt/vital-times-2021
https://www.nxtbook.com/allen/csvt/2020
https://www.nxtbook.com/allen/csvt/2019
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https://www.nxtbook.com/allen/csvt/2017
https://www.nxtbook.com/allen/csvt/2016
https://www.nxtbook.com/allen/csvt/2015
https://www.nxtbook.com/allen/csvt/2014
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