April 27, 2023

Our state statutes and regulations governing the scope of practice for CRNAs does not require them to be supervised.  But, we are not on CMS’s opt-out list.  Why?  What does that mean?  Does that make any sense?

The Centers for Medicare & Medicaid Services (“CMS”), through the Conditions of Participation for Hospitals, requires anesthesia services provided by a CRNA to be supervised by an anesthesiologist or the operation practitioner, with the supervisor being immediately available – unless the services are provided in an “opt-out state.”  Opt-out states are those where the state governor has specifically and in writing requested to opt out of the CRNA supervision requirements.

According to the American Association of Nurse Anesthesiology (AANA) website, “[to] date, 22 states and Guam have opted out of the federal physician supervision requirement, including Iowa, Nebraska, Idaho, Minnesota, New Hampshire, New Mexico, Kansas, North Dakota, Washington, Alaska, Oregon, Montana, South Dakota, Wisconsin, California, Colorado, Kentucky, Arizona, Oklahoma, Utah, Michigan, and Arkansas.”

If your state is not an opt-out state, then the standard rule applies; that is, CRNA services provided in the hospital must be provided with an anesthesiologist or the “operating practitioner” immediately available (in the same operating suite, not just on the premises of the hospital).

Of course, if you are a sensible person (and we presume you are!), you are probably wondering why on Earth CMS would require a governor to request an opt-out, rather than simply deferring to state law on the matter of scope of practice and supervision of CRNAs.  How does the opt-out process make any sense?

The reasoning can be found in the original rule that created the opt-out exception.  If you read the preamble to the final rule (https://www.govinfo.gov/content/pkg/FR-2001-11-13/html/01-28439.htm), you will see that, originally, CMS proposed to modify the Conditions of Participation to simply defer to state law regarding supervision of CRNAs (on the basis that states generally handle scope of practice regulation and CMS could not find persuasive evidence that it was necessary to have a federal rule requiring greater supervision of CRNAs than allowed under state law).

However, after receiving comments, CMS delayed implementation of the rule and made changes prior to finalization.  In the final rule, CMS retained the rule requiring supervision of CRNAs, but allowed governors to opt out after consulting with the state boards of nursing and medicine.  According to CMS, this change was made to account for the fact that states, when drafting their scope of practice laws, might have been relying on the fact that CMS had a stringent supervision requirement and, therefore, if CMS removed that requirement suddenly, some states might be surprised to find that CRNAs were free to practice independently (emphasis added below):

The final rule was published on January 18, 2001 (66 FR 4674) and was to have been effective March 19, 2001.  In accordance with the proposed rule, the January 2001 final rule changed the physician supervision requirement for CRNAs furnishing anesthesia services in hospitals, ASCs, and CAHs.  Under that rule, State laws would control which professionals would be permitted to administer anesthesia and the level of supervision required for CRNAs.  It did not prohibit, limit, or restrict in any way the practice of medicine by a physician or anesthesiologist.  Hospitals, ASCs, and CAHs retained the ability to exercise stricter standards than those required by State law.

On March 19, 2001, the effective date was delayed 60 days in accordance with the memorandum to the President from the Chief of Staff, dated January 20, 2001, and published in the Federal Register (see 66 FR 15352).  On May 18, the rule was further delayed for 180 days, until November 14, 2001, in order to explore alternatives for implementation (see 66 FR 27598).  In reviewing the January 2001 final rule, we identified two important questions that were not raised and thus not addressed previously.

One question concerned the States’ reliance on Medicare physician supervision requirements in establishing State scope-of-practice laws and monitoring practices.  In some cases, State laws and regulations may have been written with the assumption that Medicare would continue its longstanding policy requiring physician supervision of the anesthesia care provided by CRNAs.  Eliminating Medicare requirements now could change supervision practices in some States without allowing States to consider their individual situations.  In the absence of Federal regulations, we were concerned that States might have promulgated different laws or different monitoring practices.

* * * Both were legitimate implementation questions; thus, in addition to delaying the effective date of the January final rule, we published a new proposed rule on July 5, 2001 (66 FR 35395), which proposed an alternative method for implementing the independent practice proposal in lieu of proposing an immediate removal of the requirement.  Our alternative proposal was to – (1)        Establish an exemption from the physician supervision requirement by recognizing a Governor’s written request to us attesting that, after consultation with the State’s Boards of Medicine and Nursing on issues related to access to and the quality of anesthesia services, and consistent with State law, he or she is aware of the State’s right to an exemption from the requirement and has determined that it is in the best interests of the State’s citizens to exercise this exemption….

As you can see, even though a state may not require CRNA supervision through its own statutes and regulations, until the governor of that state requests to “opt out” of the supervision requirement of the Medicare Conditions of Participation, supervision is still required in hospitals.