On June 1, 2015 the Colorado Supreme Court issued its long awaited decision in the case of Colorado Medical Society et al. v. Hickenlooper, et al. This lawsuit was brought by the Colorado Medical Society and the Colorado Society of Anesthesiologists (“the Societies”) to challenge the so-called “Opt-out” determination by Governors Ritter and Hickenlooper from a federal Medicare condition of participation for hospitals and other providers that would require the delivery of anesthesia in these facilities only under the supervision of a physician. However, these same federal regulations also allow a state to “opt-out” of the physician supervision requirement and allow administration by Certified Registered Nurse Anesthetists (“CRNAs”) if the governor of that state advises the federal agency administering Medicare of that intention based upon the governor’s determination that opting out would not violate state law and is in the best interests of the citizens of that state. In September of 2010, then Governor Ritter made the decision to opt-out of the Medicare requirement for the state’s critical care access hospitals and other designated rural hospitals. Upon his election, Governor Hickenlooper endorsed the opt-out and it remained in effect.
The Societies challenged the Opt-out determination by filing a lawsuit claiming that this determination violated state law—namely that the Nurse Practice Act prohibited CRNAs from providing anesthesia care without physician supervision. The Governor’s Office, through the Attorney General, contended otherwise and was joined in the suit by the Colorado Association of Nurse Anesthetists, the Colorado Nurses Association and the Colorado Hospital Association. The position of these parties defending against the Societies’ claim was that the Nurse Practice Act, consistent with the long-standing interpretation of the State Board of Nursing, permits CRNAs, who are advance practice nurses, to render anesthesia care without physician supervision. This interpretation was also consistent with a regulation of the State Board of Health for general hospitals which allows the delivery of anesthesia by either a qualified physician or CRNA.
Following the decisions of two lower courts that upheld the Governors’ opt-out determination on the grounds that the Nurse Practice Act permits CRNAs to deliver anesthesia care without physician supervision, the case was reviewed by the Colorado Supreme Court. Its decision, unanimous among the six justices hearing the case, affirmed the Court of Appeals decision dismissing the lawsuit filed by the Societies. However, it did so on other grounds—holding that the Opt-out determination, to the extent that it is based on the Nurse Practice Act, was not a binding interpretation of Colorado law, but an opinion of the Governor made for the purposes of the federal Medicare participation regulations. Accordingly, the Supreme Court ruled that the Opt-out determination is reviewable by a court only upon whether the Governor committed a “gross abuse of discretion,” as opposed to whether the Governor’s interpretation of the Nurse Practice Act was a correct interpretation of Colorado law. Since the Societies’ did not allege “abuse of discretion” grounds in their lawsuit, the Supreme Court ordered that their case be dismissed. The Colorado Society of Anesthesiologists asked the Court to reconsider its decision, but its Petition was denied on June 22, 2015 ending the proceedings in this case.
What is clear from the litigation is that CRNAs may continue to provide anesthesia care without physician supervision in the hospitals affected by the Opt-out determination and the State Board of Nursing’s interpretation of the Nurse Practice Act remains unchanged. Additionally, the State Board of Health’s regulation permitting CRNAs to deliver anesthesia care without physician supervision in the all of the state’s general hospitals remains intact. Finally, while not binding, the interpretations by the lower courts in the Opt-out litigation that the Nurse Practice Act permits CRNAs to deliver anesthesia care without physician supervision confirm that these interpretations by the Governors and state boards are correct.
Obviously, this case has important ramifications for the advance practice of nursing and the scope of that practice in the State of Colorado. The Colorado Nurses Association is to be commended for its participation in this case and its continued active support of the independent practice of nursing.