HUSCH BLACKWELL Fred Miles Partner Peggy E. Kozal Senior Counsel 1700 Lincoln Street, Suite 4700 Denver, CO 80203 Direct: 303.749.7288 Fax: 303.749.7272 [email protected] May 20, 2015 CONFIDENTIAL: ATTORNEY-CLIENT COMMUNICATION VIA E-MAIL Sarah Fredriksson, CRNA, DNAP President Colorado Association of Nurse Anesthetists 149 Kimball Avenue Golden, Colorado 80401 Re: Teaching Anesthesia Core Clinical Curriculum to Anesthesiologist Assistant Students by CRNAs Dear Ms. Fredriksson: We are writing to respond to the request by Colorado Association of Nurse Anesthetists ("CoANA") that we provide our opinion as to whether Certified Registered Nurse Anesthetists ("CRNAs"), under the scope of their advanced nursing practice license pertaining to anesthesia care may, within the scope of that license, legally teach the core clinical curriculum pertaining to anesthesia care to Anesthesiology Assistant students ("AA students") in Colorado. For the reasons discussed below, it is our view that under the statutory and regulatory provisions that govern CRNAs' scope of practice, they may not supervise, delegate functions or teach AA students in a clinical, as opposed to didactic, setting where AA students would be required to provide anesthesia care to a patient as part of this instruction. We base our opinion on applicable Colorado statutory, regulatory and common law, as well as relevant guidance provided by the State Board of Nursing ("the Board"). I. State Board of Nursing Guidance In a November 7, 2011 written response to questions from CoANA regarding circumstances pertaining to the delegation of anesthesia care to an AA by a CRNA, the Board made it clear that CRNAs may not delegate their advanced practice functions to an AA. Exhibit DEN-62676-7 Husch Blackwell LLP HUSCH BLACKWELL A. Specifically, in response to these questions regarding the acceptable scope of practice for CRNAs with respect to interacting with AAs, the Board voted unanimously that there is no provision within the Colorado Nurse Practice Act, C.R.S. §12-38-101, et seq. ("NPA"), that authorizes CRNAs to delegate advance practice functions to an AA. Similarly, the Board voted unanimously that a physician must be present at a handoff where a patient is left within an AA's care, since a CRNA cannot delegate this function to an AA. It is axiomatic that such principles would be applicable to AA students and instruction by CRNAs of that part of the educational program that pertains to the core clinical curriculum involving anesthesia care. It is not accurate to posit that simply because the NPA does not explicitly address the "teaching" of AA students, that it is permissible for CRNAs to do so. See E-470 Public Highway Authority v. Revenig, 140 P.3d 227, 230 (Colo. App. 2006) (holding that a court "may not read into a statute an exception that its plain language does not suggest, warrant, or mandate"). Rather, it is the absence of express authorization that is of concern and here, the Board's written analysis is instructive. The Board's interpretation relies on the finding that there is no provision within the statute permitting CRNAs to delegate advanced practice functions to an AA, accordingly they cannot do so. It is therefore just as persuasive that because there is no provision within the statute permitting CRNAs to delegate, as part of teaching a core clinical curriculum, to unlicensed AA students in a clinical setting, they cannot do so. There is no practical distinction between the terms "delegate" and "teach" in the context of a CRNA providing instruction in a clinical setting to unlicensed personnel. Where a CRNA is required to be present while an AA student performs a return demonstration of an anesthesia care task to a patient, and no supervising physician is present, the semantics of the terminology used to describe the CRNA's interaction with the AA student is inconsequential. The AA student is taught by means that would include the ability to perform the anesthesia care function. Indeed, under such an example, the CRNA is delegating to the unlicensed AA student the authority to perform clinical functions of anesthesia care after having demonstrated or instructed the AA student in how to do the task. Accordingly, the Board's written response is authoritative and binding on its licensees with respect to this question when applied to these circumstances. H. Colorado Statutes and Regulations Colorado State Medical Board regulation 3 CCR 713-40, § 3.0 states that an AA may only administer drugs and controlled substances under the supervision of a physician. There is no similar statute or regulation that allows a CRNA to supervise an AA in this particular context or more generally, in a clinical teaching situation or otherwise. As a result, it cannot be persuasively argued that a CRNA can do so in the absence of express authorization. Furthermore, 3 CCR 713-40, § 3.0 must be further qualified in that it requires that before any anesthesia is administered, an individual has to be a licensed AA, and not an unlicensed student in an AA educational setting. The NPA, in a broader context, addresses delegation as follows: Delegated tasks shall be within the area of responsibility of the delegating nurse and shall not require any delegatee to exercise the judgment required of a nurse. 2 Husch Blackwell LLP 1-IUSCH BLACKWELL C.R.S. § 12-38-132(2). C.R.S. § 12-38-132(1) similarly precludes a nurse from delegating to another person the ability to select medications if the person is not independently authorized by law to make the selection. Since administration of anesthesia care requires the judgment of an advanced practice nurse, there is no authorization under Colorado statutory or regulatory law which would authorize an unlicensed AA student to administer, for example, an anesthetic. Accordingly, under the NPA, CRNAs have no discretionary ability to delegate such a task to an unlicensed individual and requiring CRNAs to do so would force them to act outside of their acceptable scope of practice. If an anesthesiologist is outside of the direct presence of the AA student during his or her return demonstration of a clinical task constituting anesthesia care, even if a CRNA were present, such an activity would be without statutory or regulatory authorization. Section 2.C.5 of the State Medical Board rules state that a "supervising physician must provide adequate means for communication with the [AA] and remain immediately available throughout the anesthesia service." 3 CCR 713-40, § 2.C.5. The Colorado Medical Board defines "immediately available" as the physician being "in physical proximity that allows the physician to return to re-establish direct contact with the patient in order to meet medical needs and address any urgent or emergent clinical problems." Id. at § 2.C.5.b. The State Board of Nursing has directly stated that the physician must be present at the hand-off in its November 7, 2011 written response to CoANA. As a result, a CRNA's presence while a licensed AA, much less an unlicensed student AA, is administering anesthetic is not an acceptable substitute for that of the supervising physician's presence. Even more disconcerting for those who may argue to the contrary is the fact that there is no mention, let alone express authorization, in the AA licensing statute or regulations for supervision or instruction of an AA by a CRNA. III. Common Law Authority A case from the Georgia Court of Appeals, which was affirmed by the Supreme Court of Georgia, contains a parallel analysis on this issue. In Central Anesthesia Associates, P.C., et al. v. Worthy, et al., 173 Ga. App. 150 (1984), the husband of a woman who suffered brain damage because of improper administration of anesthesia during a tubal ligation surgery brought a medical malpractice action against a hospital, the attending surgeon, his assistant, an anesthetist school, its managing physicians, an employee of the school and the student nurse. The anesthesia care was provided by the student CRNA nurse, who was a registered professional nurse and senior student nurse anesthetist enrolled in the hospital's school of anesthesia for nurses training to become CRNAs. The student was supervised by a physician's assistant ("PA") specializing in anesthesiology, who was also an employee of a corporation comprised of eight physicians. When considering liability, the Court examined a statute which stated that anesthesia care could lawfully be administered by a CRNA "provided that such anesthesia is administered under the direction and responsibility of a duly licensed physician with training or experience in anesthesia." Id. at 152. The Court found that this statute set threshold qualifications which had to be met before a person would be permitted under the law to provide anesthesia care. Id. at 153. In other words, the statute prohibited anyone not meeting those qualifications from 3 Husch Blackwell LLP HUSCH BLACKWELL performing anesthesia care services. Id. As a result, because the nurse had a duty not to practice nursing beyond that which the law allowed, the Court granted summary judgment on the plaintiffs negligence per se claim against her. In doing so, the Court determined that even though the nurse was assigned by her superiors to administer anesthesia care during the operation, she was not a CRNA and thus, violated the statute setting forth the minimum qualifications for providing this anesthesia care. Similarly, summary judgment was granted against the PA who was employed by the corporation which operated the anesthesia school, since that PA supervised the unlicensed and therefore, unqualified student nurse. Also compelling in this case was the finding by the Court that the corporation that operated the anesthetist school was negligent per se. The corporation which provided anesthesia services in the hospital and which operated the school that the student nurse was enrolled in controlled her assignments and those of the physician assistant. Id. at 154. Given this role, the Court found that as the operator of the school, the corporation had a duty not to assign students to administer anesthesia care and not to assign a non-physician to supervise her. Id The physicians who were in charge of the anesthetist school, as well as the hospital which allowed the anesthetist school to operate on its premises by providing funding and services, were also found to be negligent per se for failing to prevent a student nurse from administering the anesthetic without the supervision of a physician. Id. The facts of Worthy are remarkably similar to the instant situation. Colorado Medical Board regulation 3 CCR 713-40 sets the threshold qualifications which have to be met prior to an AA providing anesthesia care. The AA must be licensed and once licensed, the AA must be supervised by a physician practicing in the field of anesthesia. Accordingly, to require a CRNA to delegate functions, teach or supervise an unlicensed AA student during the administration of anesthetic exposes the CRNA, the AA student, and potentially any involved educational institution or hospital to liability should an injury occur. IV. Conclusion In light of the Board's November 7, 2011 response to CoANA's inquiry and in the absence of any Colorado statute or regulation giving express authorization, the supervision, delegation of functions as part of teaching unlicensed AA students the core clinical, as opposed to didactic, curriculum by CRNAs would, in our view, require them to perform acts outside of their licensed scope of practice in Colorado. Sincerely, Fred Miles Peggy E. Kozal 4 Husch Blackwell LLP Depattrnent 01. Regulatory AgeTtc* Division of Registrations Rosemary McCotli Director State Board of Nursing Kennetha..hilieri Program. Director John W. Hickeniooper Governor Barbara I. Kelley Executive Director. November 7, 2011 Ccilorado Association of Nurse Anesthetists Lawrence Shovelton, CRNA 1.6091 East Loyola. Place Aurora, CO 80013 Dear Shoveltcin: On behalf of the State. Board of Nursing ("Board"), I am responding to your letter of August 31, 2011. In your letter, you requested input from the Board regarding an official opinion on the issue of delegation of anesthesia care by CRNAs to Anesthesia Assistants. At its meeting on October 26, 2011, you presented your letter and the -Board considered the oral comment and discussed the three specific questions that you posed for the Board's consideration, The first question is, "Can a CRNA watch over and delegate to an anesthesia assistant?" In response, the Board voted unanimously that there is no provision within the statute for CRNAs to delegate. The second question, "Can a CRNA be relieved for a break by an anesthesia assistant leaving the patient in the anesthesia assistants care, also known as a handoffr In response, the Board voted unanimously that there is no ability for the CRNA to delegate and the physician would need to be present at the handoff. The Board also considered your last question, "Are CRNAa to complete orders, including pre op orders, written`by anesthesia assistants?" The'Board of Nursing voted unanimously that they.have no jtuisdiction to address this question. The Board appreciates the opportunity to respond to the questions posed. Sincerely, FOR THE STATE BOARD'OF NURSING K.ennetha Julien Program_Director State Board of Nursing 1560 Broadway, Suite 1350 Fax 303.894.2821 Denver, Colorado 80202 www,dora.state.co.us Phone 303.894.2430 711 V/TDD LE:KOMI consumer Riptection A
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