Victory in Illinois Office Anesthesia Litigation

We've just received great news from the Illinois Association of Nurse Anesthetists (IANA). On October 1, 2004, an Illinois trial court issued a decision permanently enjoining the Illinois Department of Professional Regulation (DPR) from enforcing a regulation requiring physicians who work with CRNAs in office settings to have anesthesia continuing medical education (CME) or hospital or ambulatory surgical center (ASC) anesthesia privileges. The decision is effective immediately. This is a major victory for Illinois CRNAs.

In 2001, various CRNAs, assisted by the IANA, sued the DPR because of this detrimental regulation. Subsequently, an office-based surgeon who works with CRNAs joined the lawsuit as a plaintiff. The regulation discriminates against CRNAs who work in physician offices by requiring that a CRNA "may only provide anesthesia services if the physician has training and experience in the delivery of anesthesia services to patients." Physicians could choose among two alternatives to meet this "training and experience" requirement. The physician could maintain hospital or ASC privileges in anesthesia (which usually only anesthesiologists possess). Alternatively, for conscious sedation only, the physician could complete eight hours of CME in the delivery of anesthesia including conscious sedation every three years, and for deep sedation, regional anesthesia, and/or general anesthesia, the physician could complete 34 hours of CME "in the delivery of anesthesia services" every three years.

In the lawsuit, the plaintiffs argued that the regulation could be invalidated on two grounds. First, the regulation is inconsistent with the authorizing statute (the Illinois Nursing and Advanced Practice Nursing Act). Secondly, even if the regulation is not inconsistent with the nursing act, the DPR's decision to impose these requirements was arbitrary and capricious.

Last month, the case finally proceeded to trial before a judge. The plaintiffs' witnesses included IANA members and representatives, various experts including Dr. Michael Pine, and Mitch. The DPR's witnesses included the former director of the DPR who was responsible for authorizing the regulation and one expert witness.

In the October 1 decision, the court invalidated the regulation as a matter of law. The court held that the regulation was inconsistent with the authorizing statute and therefore it did not need to evaluate whether the regulation was arbitrary and capricious. The court found "no enabling language in the Nursing and Advanced Practice Nursing Act granting the [DPR] the authority to impose additional anesthesia training on licensed physicians who work with CRNAs in an office setting." Moreover, there was no evidence that the legislature contemplated additional anesthesia training for physicians who work with CRNAs in office settings.

We will post an AANA Web site notification of this decision within the next few days. In addition, we will summarize this important development in the next AANA State Update.

We don't know yet whether the DPR will appeal this decision.

The Illinois decision means that no state in the country has a discriminatory law or regulation in effect that requires physicians who work solely with CRNAs in the office setting to have anesthesia CME or anesthesia privileges. Ohio requires surgeons who practice in the office setting to possess delineated anesthesia CME or hold hospital or ASC anesthesia privileges regardless of whether they work with CRNAs or anesthesiologists. As you know, New Jersey continues to have office regulations with detrimental and discriminatory requirements regarding the qualifications physicians must possess to work with CRNAs in the office setting, but those regulations are not in effect pending the outcome of litigation. We have described the New Jersey litigation in previous updates.

As always, please let Mitch or me know if you have any questions.

Barbara L. Anderson, JD
AANA State Legislative Affairs Associate
(847) 655-1133
(Fax) (847) 692-6968
blanderson@aana.com

Mitchell H. Tobin, JD
Director of State Government Affairs
American Association of Nurse Anesthetists
222 S. Prospect Avenue
Park Ridge, IL 60068-4001
Phone: (847) 655-1131
Fax: (847) 692-6968
mtobin@aana.com

AANA Web site: www.aana.com

(posted 10-7-2004)