Working together

Tuesday, September 01, 2015 12:34 PM

CMS, CSA and a Supreme Court ruling

by Jan Gillespie, MD, Past President Colorado Society of Anesthesiologists; Board Member, Colorado Medical Society

As a past president of Colorado Society of Anesthesiologists (CSA) and board member of the Colorado Medical Society (CMS), I was glad to learn on June 1, 2015, that the Supreme Court overturned a far-reaching decision of a lower court that the governor “opting out” of Medicare physician supervision requirements for anesthesia delivered by CRNAs impacts only Medicare reimbursement and is not a determination of Colorado law.

CMS and CSA joined together in 2010 to challenge then-Gov. Bill Ritter’s decision that exempted Colorado’s rural hospitals from the federal regulation requiring a physician to supervise a nurse anesthetist delivering anesthesia during surgery. This is the type of collaboration that facilitates wins for patient safety and for doctors.

Colorado Medical Society and CSA brought suit against the governor arguing that the exemption was contrary to Colorado state law. A Colorado District Court ruled in 2011 that Colorado law permits independent practice by CRNAs and the Colorado Court of Appeals upheld the lower court decision in 2012, an interpretation with which CMS disagreed. The decisions by the lower courts threatened to create precedent highly detrimental to anesthesiologists throughout the state and resulted in CMS and CSA requesting review by the Colorado Supreme Court.

Although the June 1 Colorado Supreme Court decision did not erase the governor’s Medicare opt-out election, it does negate the major portion of the earlier rulings and reinforces the standing of CMS and CSA to challenge the Ritter decision, in order to protect patient safety in anesthesia care.

Because of the Supreme Court’s favorable rationale restricting application of its decision, CMS council did not feel it prudent to either risk a revised unfavorable decision or submit statements into the public court record. CSA council concluded it unlikely that the Supreme Court would even rehear the case, with the further concern that the court would then reach the same conclusion as the two lower courts. In addition, the Supreme Court justice most receptive to patient safety arguments retired in 2013 and the court’s opinions have trended since to be more legally technical in nature.

Considering all of these factors, CMS legal counsel felt this ruling clarifying that the governor’s decision is not a legal interpretation of either Colorado’s Medical or Nursing Practice Acts was very likely the best outcome that anesthesiologists could get. I, as an anesthesiologist, agree and support the decision not to seek a rehearing.

I am truly grateful for the productive and collegial collaboration between CMS and CSA that enabled the favorable ruling. It is extremely important that all in the house of medicine in Colorado continue to work together during this time of rapid change in health care. I applaud all of our partners who join us in championing patient safety now and in the future.