Was Governor Ducey's 2020 letter opting Arizona out of the federal CRNA-supervision rule valid, and did it change Arizona's scope-of-practice rules?
Plain-English summary
Federal CMS regulations require certified registered nurse anesthetists (CRNAs) to administer anesthesia under the supervision of the operating physician or an anesthesiologist as a condition of receiving Medicare and Medicaid payments. In 2001, CMS amended those regulations to allow individual states to opt out of that supervision requirement, provided the Governor (1) consults with the State Boards of Medicine and Nursing, (2) concludes the opt-out is in the citizens' best interests, and (3) certifies the opt-out is consistent with state law.
In March 2020, Governor Ducey sent CMS an opt-out letter for Arizona. Representative Robert Meza later asked whether that opt-out was actually valid given how the consultation was performed (the Governor's office spoke with the Executive Directors of the Boards rather than the Boards themselves), whether it conflicted with Arizona law, and whether it modified Arizona's CRNA scope of practice.
The AG concluded:
- Consultation likely satisfied. CMS expressly declined to specify how Governors must consult, and the federal preamble said Governors should be given "maximum flexibility." Talking with the Executive Directors of each Board, who are statutorily authorized to act on the Boards' behalf, was probably enough.
- Opt-out consistent with Arizona law. Arizona's CRNA-supervision rule (A.R.S. § 32-1634.04(A)) is broader than the federal rule. The federal rule requires the operating practitioner or an anesthesiologist; Arizona law allows any physician or surgeon. Removing the narrower federal rule did not conflict with the broader state rule.
- Opt-out did not change state law. CRNAs in Arizona still must comply with A.R.S. § 32-1634.04(A). The Governor's letter only removed a federal supervision overlay; it did not amend or expand the state scope of practice.
What this means for you
If you operate a hospital, ASC, or critical access hospital in Arizona
Your CRNAs are no longer subject to the CMS rule that requires supervision specifically by the operating practitioner or an anesthesiologist. They still must be supervised under Arizona's own statute, A.R.S. § 32-1634.04(A), which allows any "physician or surgeon" connected with the patient's preoperative, intraoperative, or postoperative care to provide that supervision. Make sure your facility policies, credentialing, and billing systems track to the state requirement, not to a memory of the pre-2020 federal rule.
If you are a CRNA practicing in Arizona
Nothing about your scope of practice changed because of the opt-out. The Governor's letter removed the narrower federal standard, but Arizona's supervision requirement still applies. Continue to administer anesthesia under the direction of and in the presence of a physician or surgeon as A.R.S. § 32-1634.04(A) requires.
If you are an anesthesiologist or operating physician
The federal rule that previously named you specifically as the supervisor no longer applies in Arizona facilities. The state-law supervision continues to be a "physician or surgeon" connected with the case, which can but need not be the anesthesiologist. Check your hospital's medical staff bylaws and policies: many facilities continue to require physician anesthesiologist or operating-practitioner supervision as a matter of internal policy even though the federal rule no longer compels it.
If you are a hospital compliance officer
Three layers of rules now apply: state law (A.R.S. § 32-1634.04(A)), CMS conditions of participation (which still require state-law compliance under 42 C.F.R. §§ 482.11(c), 485.608, 416.40), and your facility's own policies. The opt-out simplified the federal layer, but the others did not move.
Common questions
Q: What is a CRNA?
A: A Certified Registered Nurse Anesthetist is an advanced practice registered nurse who has additional training in anesthesia delivery. CRNAs administer anesthesia in surgical, obstetric, and pain-management settings.
Q: Why does CMS care who supervises CRNA-administered anesthesia?
A: CMS attaches the supervision requirement to the conditions of participation in Medicare and Medicaid. A facility that does not meet the conditions cannot bill those programs for the services. The supervision rule is one of many conditions hospitals, critical access hospitals, and ambulatory surgical centers must satisfy.
Q: What did the opt-out actually change?
A: Before the opt-out, an Arizona facility billing Medicare needed CRNA supervision specifically from the operating practitioner or an anesthesiologist. After the opt-out, the facility's CRNA supervision is governed by Arizona law, which allows any physician or surgeon involved in the patient's care to supervise.
Q: Does this mean CRNAs can practice independently in Arizona?
A: No. Arizona still requires direction-and-presence supervision by a physician or surgeon under A.R.S. § 32-1634.04(A). The opt-out is about removing a federal overlay, not eliminating supervision.
Q: Why did consulting with the Executive Directors count as consulting with the Boards?
A: CMS deliberately left the consultation procedures undefined to give Governors flexibility. The Executive Director of the Medical Board is statutorily authorized to "[r]epresent the board with the federal government, other states or jurisdictions of the United States, this state, political subdivisions of this state, the news media and the public" (A.R.S. § 32-1405(C)(19)). The Nursing Board's Executive Director can perform other duties as directed by the board (A.R.S. § 32-1605.01(5)). Together with CMS's flexibility statement, the AG concluded that consulting the Executive Directors was reasonable. The opinion expressly assumed each Executive Director had followed any internal Board procedures for that consultation.
Q: Could a future Governor reverse the opt-out?
A: Yes. The federal regulation does not say the opt-out is permanent. A Governor can opt back in by withdrawing the letter, which would re-impose the operating-practitioner / anesthesiologist supervision rule on Arizona facilities billing Medicare and Medicaid.
Background and statutory framework
CMS adopted three parallel conditions of participation for hospitals (42 C.F.R. § 482.52), critical access hospitals (42 C.F.R. § 485.639), and ambulatory surgical centers (42 C.F.R. § 416.42) requiring CRNA supervision by the operating practitioner or, in some forms, an anesthesiologist. In the 2001 final rule (66 Fed. Reg. 56762), CMS added the state opt-out option, requiring the Governor to attest to (i) consultation with the State Boards of Medicine and Nursing, (ii) a best-interests determination, and (iii) consistency with state law. The opt-out is "effective upon submission": no CMS approval required.
Arizona's CRNA statute (A.R.S. § 32-1634.04(A)) requires CRNAs to administer anesthesia "under the direction of and in the presence of a physician or surgeon in connection with the preoperative, intraoperative or postoperative care of a patient." The Arizona Medical Board (A.R.S. § 32-1401 et seq.) and Nursing Board (A.R.S. § 32-1601 et seq.) have parallel licensing and disciplinary jurisdiction.
The leading appellate case interpreting CMS opt-outs is Cal. Soc'y of Anesthesiologists v. Brown, 204 Cal. App. 4th 390 (2012), which held the California Governor's opt-out was consistent with state law because California only required a CRNA to be "ordered by a physician." The AG's opinion follows that approach, comparing the breadth of the federal rule with the state rule and concluding that opting out of the narrower federal rule does not conflict with the broader state rule.
Citations and references
Statutes:
- A.R.S. §§ 32-1401 et seq., 32-1405(C)(19), Arizona Medical Board
- A.R.S. §§ 32-1601 et seq., 32-1605.01(5), Arizona Nursing Board
- A.R.S. § 32-1634.04(A), CRNA supervision requirement
- 42 C.F.R. §§ 482.52, 485.639, 416.42, CMS CRNA supervision rules
- 42 C.F.R. §§ 482.11(c), 485.608, 416.40, state-law compliance conditions
- 66 Fed. Reg. 56762 (2001): CMS opt-out rulemaking
Cases:
- Cal. Soc'y of Anesthesiologists v. Brown, 204 Cal. App. 4th 390 (2012)
Source
- Landing page: https://www.azag.gov/opinions/i21-006-r21-009
- Original PDF: https://www.azag.gov/sites/default/files/2025-06/I21-006.pdf
Original opinion text
To:
The Honorable Robert Meza
Arizona House of Representatives
Questions Presented
Whether a brief, undocumented discussion with the Executive Director ("ED") of the Arizona Medical Board constitutes a "consultation" with the Board itself, and whether the ED of a licensing Board has the authority to act on behalf of the Board when neither the Board as a whole nor any of its members are even informed of the issue?
Whether the March 23 Opt Out Letter is "consistent with state law"?
Whether the Opt Out Letter modifies any aspect of existing Arizona law with regard to the scope of practice of certified registered nurse anesthetists ("CRNAs"), and if any such unilateral modification is permitted under state law?
Summary Answers
The Governor's consultations with the Executive Directors of the Arizona Medical Board and the Arizona Nursing Board likely satisfied the regulation.
The March 23 Opt Out Letter is consistent with state law.
The Opt Out Letter does not modify any aspect of existing Arizona law with regard to the scope of practice of CRNAs.
Background
The Centers for Medicare and Medicaid Services ("CMS") is the federal agency responsible for overseeing and administering the federal Medicare and Medicaid programs and is responsible for issuing federal guidelines outlining the conditions that medical providers must satisfy to participate in and receive payment for medical services rendered to recipients of medical care under Medicare and Medicaid.
Pursuant to that authority, CMS has issued at least three regulations providing the conditions under which certified registered nurse anesthetists ("CRNAs") must comply with to receive reimbursement.[1] Each regulation requires a CRNA to administer anesthesia under the supervision of the operating physician or an anesthesiologist.[2] In addition, the regulations also require medical personnel, including CRNAs, to comply with state licensing regulations and other state standards.[3]
In 2001, CMS amended each regulation to allow individual states to opt out of the supervision requirement. To do so, a state must submit a letter to CMS from the Governor attesting that: (1) "he or she has consulted with State Boards of Medicine and Nursing[;]" (2) "has concluded" that opting out of the supervision requirement "is in the best interests of the State's citizens[;]" and (3) "the opt-out is consistent with State law." See 42 C.F.R. §§ 482.52(c)(1), 485.639(e)(1), 416.42(c)(1). The request for exemption is "effective upon submission." 42 C.F.R. §§ 482.52(c)(2), 485.639(e)(2), 416.42(c)(2).
On March 23, 2020, Governor Ducey sent a letter to CMS Administrator Seema Verma "exercising the option available to states" to opt out of the federal supervision requirement. Letter from Doug Ducey, Governor of Arizona, to Seema Verma, Administrator Centers for Medicare and Medicaid Services (Mar. 23, 2020) (available at https://azgovernor.gov/sites/default/files/crna_opt-out_letter_03.24.2020.pdf). In addition to his statement that the "exception is consistent with Arizona law," Governor Ducey acknowledged that his office "consulted with the Executive Directors of both the Arizona Nursing Board and the Arizona Medical Board about this issue as it relates to both access to care and quality of services and is satisfied that this exemption is in the best interest of patients." Id. In light of the "heightened demands" on the healthcare system at that time, Governor Ducey believed that the exemption would enhance access to "high quality care" especially in rural areas, which is "in the best interest of the citizens of Arizona." Id. Pursuant to the regulations, once Governor Ducey submitted the letter, CRNAs in Arizona became exempt from the federal supervision requirement. See 42 C.F.R. §§ 482.52(c)(2), 485.639(e)(2), 416.42(c)(2).
Analysis
The Governor's Consultations With The Executive Directors Of The Arizona Medical Board And Nursing Board Likely Satisfy The Regulation.
As part of the opt-out process, the regulations require the Governor to attest that he has "consulted with the State Boards of Medicine and Nursing." 42 C.F.R. §§ 482.52(c)(1), 485.639(e)(1), 416.42(c)(1). When CMS amended these regulations, it received many comments specifically requesting "clarification and procedures detailing the means by which Boards of Medicine and Nursing act to advise the governor under the rule." 66 Fed. Reg. at 56764. In response, CMS declined to provide such procedures, noting instead that the failure to provide "detailed processes or steps that should be undertaken" to consult with the Boards was "purposeful." 66 Fed. Reg. at 56764. CMS further explained that "[t]he purposed consultation with the Boards of Medicine and Nursing is to ensure appropriate involvement of parties on both sides of the issue," and "Governors should be given the discretion and maximum flexibility to decide with whom they should consult." Id.
Arizona law details the authority of both the Arizona Medical and Nursing Boards, as well as their Executive Directors. See A.R.S. § 32-1401 et seq.; A.R.S. § 32-1601 et seq. The Executive Director of the Medical Board is authorized to "[r]epresent the board with the federal government, other states or jurisdictions of the United States, this state, political subdivisions of this state, the news media and the public." A.R.S. § 32-1405(C)(19). While there is no similar provision regarding the Executive Director of the Nursing Board, Arizona law permits the Executive Director to "[p]erform other duties as directed by the board." A.R.S. § 32-1605.01(5).
Ultimately, the regulation entrusts the Governor with the decision of whether to opt out of the supervision requirement. See 42 C.F.R. §§ 482.52(c)(1), 485.639(e)(1), 416.42(c)(1). As the regulation explains, the purpose of the consultation requirement is for the Governor to obtain information regarding what is best for the State in providing medical care. The consultation requirement does not contemplate that the Governor will receive approval from either Board. If Board approval were required, then mere consultation with the Executive Directors may be insufficient. But in the absence of an approval requirement, and in light of the "maximum flexibility" the regulations intentionally provide to the Governor when it comes to consultation, it is likely that the Governor's consultations with the Executive Directors of each Board satisfied the consultation requirement in the regulations. In reaching this conclusion, we assume that the Governor in fact consulted with the Executive Directors of each Board and that the Executive Directors of each Board followed any Board requirements for consulting with other government officials.
The Governor's Decision To Opt Out Is Consistent With State Law.
The regulations permit a Governor to opt out of the supervision requirement if "the opt-out is consistent with State law." 42 C.F.R. §§ 482.52(c)(1), 485.639(e)(1), 416.42(c)(1). While CMS declined to define what it means for the decision to be "consistent with State law," 66 Fed. Reg 56,764–65, it explained that "CRNAs would have to be supervised by a physician where such oversight is required by State law or hospital policy," id. at 56,765. Courts addressing this issue have looked to the state's laws to determine whether opting out would conflict with any of that state's physician supervision requirements. See, e.g., Cal. Soc'y of Anesthesiologists v. Brown, 204 Cal. App. 4th 390, 395 (2012) (holding that the Governor's decision to opt out was consistent with California's law because California only required a CRNA to be "ordered by a physician" to administer anesthesia).
Under the federal regulation, a CRNA is required to administer anesthesia under the supervision of the operating practitioner or an anesthesiologist. See supra note 2. The "operating practitioner" is the person "who is performing the procedure." U.S. Dep't of Health & Human Services, State Operations Manual: Appendix A – Survey Protocol, Regulations and Interpretive Guidelines for Hospitals, 2004 WL 4993168, * 341 (Feb. 21, 2020).
Arizona law, on the other hand, provides greater flexibility regarding who may supervise a CRNA. For example, Arizona law provides that a CRNA "may administer anesthetics under the direction of and in the presence of a physician or surgeon in connection with the preoperative, intraoperative or postoperative care of a patient[.]" A.R.S. § 32-1634.04(A). Because the federal regulation limits supervision to the operating practitioner or an anesthesiologist, and Arizona law allows supervision more generally by a physician or surgeon, Arizona law is broader. By opting out of the federal regulation, the Governor did not permit CRNA supervision that violates state law. Opting out of the federal regulation's supervision requirement, therefore, is not inconsistent with state law because, unlike the federal regulation, Arizona law does not require CRNA supervision to be performed solely by the operating practitioner or an anesthesiologist. See Cal. Soc'y of Anesthesiologists, 204 Cal. App. 4th at 395.
The Governor's Decision Did Not Alter State Law.
When CMS issued the new regulation, it acknowledged that "Congress has left this licensure function to States, and Medicare recognizes the scope of practice for which health care professionals are licensed by States." 66 Fed. Reg. at 56765. CMS also agreed that "[a]llowing States to make determinations about health care professional standards of practice . . . assures that those closest to, and who know the most about, the health care delivery system are accountable for the outcomes of that care." Id. Thus, CMS assured interested parties that "[w]e are not restricting or limiting the legislative or regulatory process at a State level." Id. CMS further recognized that under the final regulations CRNAs "have to be supervised by a physician where such oversight is required by State law or hospital policy," and are not allowed "to practice outside the scope of authority granted by State Law." Id.
As explained, exempting CRNAs in Arizona from the federal supervision requirement did not expand the types of supervision permitted under Arizona law; rather, it removed the more limited types of supervision required under federal law. Thus, the Governor's decision to opt out of the federal supervision requirement did not alter or modify any provision of Arizona law and CRNAs in Arizona are still required to comply with the supervision requirement contained in A.R.S. § 32-1634.04(A).
Conclusion
The Governor's consultations with the Executive Directors of the Medical and Nursing Boards likely satisfied the consultation requirement of the regulation. The Governor's decision to opt out of the federal supervision requirement is consistent with Arizona law. And the Governor's decision to opt out of the federal supervision requirement did not alter or amend any provision of Arizona law. Thus, CRNAs in Arizona must comply with the supervision requirement contained in A.R.S. § 32-1634.04(A).
Mark Brnovich
Attorney General
[1] Condition for Coverage–Surgical Services, 42 C.F.R. § 416.42; Condition of Participation: Anesthesia Services, 42 C.F.R. § 482.52; Condition of Participation: Surgical Services, 42 C.F.R. § 485.639.
[2] 42 C.F.R. § 482.52(a)(4) ("Anesthesia must be administered only by . . . [a CRNA] . . . under the supervision of the operating practitioner or of an anesthesiologist who is immediately available if needed[.]"); 42 C.F.R. § 485.639(c)(2) ("In those cases in which a CRNA administers the anesthesia, the anesthetist must be under the supervision of the operating practitioner[.]"); 42 C.F.R. § 416.42(b)(2) ("In those cases in which a non-physician administers the anesthesia, . . . the anesthetist must be under the supervision of the operating physician[.]").
[3] See 42 C.F.R. § 482.11(c) (hospitals must assure "that personnel are licensed or meet other applicable standards that are required by State or local laws."); § 485.608 ("All patient care services [must be] furnished in accordance with applicable State and local laws and regulations."); § 416.40 ("The [ambulatory surgical center] must comply with State licensure requirements.").