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.


Nurses score victory

Nurses score victory as doctors wage battle over anesthesia

By Katie Kerwin McCrimmon

A battle that has pitted doctors against nurse anesthetists has resulted in a win in the Supreme Court for the nurses and for rural Colorado hospitals.

Kathy Akers, a nurse anesthetist, works with a patient. Source: Colorado Association of Nurse Anesthetists











“This is a victory for the citizens of Colorado with respect to access to health care,” said Lisa Pearson, president-elect for the Colorado Association of Nurse Anesthetists, and one of about six anesthetists staffing the operating rooms without doctor supervision at St. Thomas More Hospital in Canon City.

Pearson said there are more than 470 nurse anesthetists serving patients throughout the state. In rural areas, nurse anesthetists are allowed to practice without a doctor’s supervision. In urban areas, Pearson said it’s typical for a nurse anesthetist to staff most surgeries with supervision from an anesthesiologist.

“The nurse anesthetist is the one putting you to sleep, keeping you asleep, watching over you and waking you up,” Pearson said.

Doctors in Colorado, however, have waged a major battle against the anesthetists since 2010 when then-Gov. Bill Ritter allowed rural and critical care hospitals to get waivers that would allow them to collect Medicare payments if nurse anesthetists practiced without a doctor’s supervision. Gov. John Hickenlooper has continued to allow the nurses to practice without formal doctor supervision in rural areas, and the state and the Colorado Hospital Association joined the nurses in fighting the doctor groups. The Supreme Court ruling, however, doesn’t appear to be ending the fight for the doctors.

“Unfortunately, we are not done yet,” Dr. Randall M. Clark, Colorado’s representative on the board of the American Society of Anesthesiologists, said in a statement after Monday’s ruling.

He vowed to press on with legal battles and insisted that the “safety” of Colorado citizens is at stake.

“The safety of Colorado’s citizens undergoing anesthesia requires the underlying legal questions to be resolved,” Clark said.

Both nursing groups and hospital officials say there’s no evidence that patients get lower quality care from nurse anesthetists than they do from doctors.

“We’ve not had any patient safety issues and we’re still able to offer services in rural areas so people don’t have to drive from Salida to Pueblo for a colonoscopy,” said Gail Finley, vice president of rural health and regulatory policy for the Colorado Hospital Association.

“It’s not like in these rural communities, we’re doing liver transplants and brain surgeries.

“The big win out of this is that everything we put in place in 2010 is fine,” Finley said.

Consumers should not notice any differences in care, and rural facilities can still opt to use nurse anesthetists if they wish, Finley said.

John Gardner, CEO of the Yuma District Hospital, a small facility on Colorado’s eastern plains that relies solely on nurse anesthetists, said the attacks on nurses are petty.

“There certainly has not been a queue of anesthesiologists chomping at the bit to wait for these anesthetists to get kicked out,” Gardner said. “I would characterize it as a turf battle.”

Lisa Pearson, president-elect for the Colorado Association of Nurse Anesthetists, works at a hospital in Canon City that uses nurse anesthetists exclusively.

His hospital has just 15 beds and primarily offers basic surgeries including colonoscopies and hysterectomies.

“It’s been really frustrating that this has even been at risk. From an economic perspective, it never made sense for an anesthesiologist to come out and practice in a rural area because the volume just isn’t there.”

Gardner called the Supreme Court ruling “a great relief.”

“We’ll keep serving the community the way we always have. This hospital has been here since the late ’40s and has never had an anesthesiologist,” he said.

“We use CRNAs (certified registered nurse anesthetists) exclusively in our surgery …. It’s the standard for anesthesia in most rural hospitals.”

Like the anesthesiologists, the Colorado Medical Society sent out a statement regarding the Supreme Court ruling that made it sound like they had won, claiming that nurse anesthetists are not allowed to practice independently in Colorado even though they are already doing so.

“Colorado Medical Society recognizes CRNAs as valuable members of the surgical care team,” Dr. Tamaan Osbourne-Roberts said in a written statement. “However, their training is shorter in duration, narrower in scope and less comprehensive than the medical training of physicians.”

Osbourne-Roberts and the Medical Society’s lawyer claimed that the governor’s interpretation of Colorado law was wrong.

The Supreme Court ruling centered on whether Ritter had abused his powers by allowing the opt-outs.

Two lower courts had ruled on the issue previously and had found that under Colorado’s Nurse Practice Act, nurse anesthetists are allowed to practice independently.

John Conklin, a lawyer for the Colorado Medical Society, contends that the Supreme Court ruling did not confirm that nurses are allowed to practice on their own and therefore implied that the Supreme Court ruling won’t be the final word on this issue.

“The Medical Society has always felt that the law requires physician supervision,” Conklin said.

He acknowledged that nurse anesthetists already practice independently across the state, but insisted “it’s a decision to be made on a case by case basis depending on a participating hospital.”

“Where physician supervision is available, it should be in place. Where it’s not available, that’s up to the facility how they want to handle it.”

So, unless more litigation surfaces or the doctor groups try to mount a challenge through new laws at the state legislature, nurse anesthetists are free to keep practicing on their own in underserved parts of the state.

“There so much pressure on us to keep people in our communities and keep taking good care of them,” said Gardner of the hospital in Yuma. “This helps us keep doing that.”

Supreme Court Upholds Opt-Out

June 1, 2015

In a resounding victory for state nurse anesthetists, the Colorado Supreme Court has upheld the legality of Colorado’s 2010 opt-out from Medicare’s facility reimbursement rule requiring physician supervision of Certified Registered Nurse Anesthetists (CRNAs), effectively ending the legal challenges by the Colorado Society of Anesthesiologists (CSA) and Colorado Medical Society (CMS).

The Supreme Court, following the decisions by the trial and appellate courts to uphold former Gov. Bill Ritter’s opt-out from the Medicare reimbursement rule, denied the appeal brought by the CSA and CMS. The lower courts had held that CRNAs who administer anesthesia are conducting independent nursing functions within the scope of nursing standards, and the state had the authority to opt out of the Medicare reimbursement rule.

“Colorado's scope of practice has always allowed for the independent administration of anesthesia by CRNAs,” said Sarah Fredrikkson, DNAP, CRNA, president of the Colorado Association of Nurse Anesthetists. “We are pleased that the Colorado Supreme Court has upheld the continued independent practice of CRNAs,” Fredrikkson said, emphasizing that the opt-out ensures patient access to safe, cost-effective anesthesia care for all Coloradoans, especially in rural and other medically underserved communities.

The opt-out was strongly supported by the Colorado Hospital Association and the Colorado Nurses Association. It is consistent with a 2010 Institute of Medicine report recommending the removal of scope of practice barriers so that advanced practice nurses can practice to the full extent of their education and training. The opt-out also alleviates the misperception held by some physicians that  their liability is increased when working  with CRNAs.

A 2010 national study evaluating anesthesia outcomes in opt-out states demonstrated no statistically significant differences in mortality or morbidity when anesthesia is provided by a CRNA working independently, an anesthesiologist working independently, or a CRNA and anesthesiologist working together.