Did Idaho's Board of Nursing need to get the Board of Medicine's joint approval before adopting rules for certified registered nurse anesthetists?
Plain-English summary
The Idaho Board of Medicine asked the Attorney General whether Idaho's Board of Nursing needed Board-of-Medicine approval before adopting rules for Certified Registered Nurse Anesthetists (CRNAs). The dispute had a long history: from 1979 to 1984 the Boards had jointly adopted CRNA rules under the nurse-practice rules, then the Board of Nursing repealed them unilaterally in 1984. The Board of Nursing in May 1985 began drafting new CRNA rules and submitted them to the Board of Medicine for review. After two years of joint work, in November 1986 the Board of Nursing concluded that joint promulgation was not legally required and proceeded unilaterally. New rules became effective August 31, 1987. The Board of Medicine challenged the Board of Nursing's authority to act alone.
The AG concluded the Board of Nursing was right. The pivotal statute, Idaho Code § 54-1402(d), defined a "nurse practitioner" as a licensed professional nurse with specialized skill, knowledge, and experience authorized "by rules and regulations jointly promulgated by the Idaho state board of medicine and the Idaho board of nursing and implemented by the Idaho board of nursing, to perform designated acts of medical diagnosis, prescription of medical therapeutic and corrective measures and delivery of medications." If a CRNA fell within that definition, joint rulemaking was required.
The AG concluded a CRNA does not fall within that definition. CRNAs do not engage in the "designated acts" of medical diagnosis, prescribing, or delivering medications in the way the nurse-practitioner statute contemplates. Instead, CRNAs administer anesthesia under the supervision and direction of a physician or dentist. That distinction had long been recognized in case law. Chalmers-Francis v. Nelson (Calif. 1936) held that nurses administering anesthesia "in the surgery during the preparation for and progress of an operation are not diagnosing or prescribing within the meaning of the Medical Practice Act." Magit v. Board of Medical Examiners (Calif. 1961) reaffirmed that licensed registered nurses could administer general anesthetics under the immediate direction and supervision of the operating surgeon. The Ninth Circuit in Bhan v. NME Hospitals (1985) said: "in administering anesthesia a nurse must act at the direction of, and under the supervision of, inter alia, a physician."
The Board of Nursing's new rules continued the supervision requirement. IDAPA 23.04.C.7.b.ii defined a registered nurse anesthetist as one providing anesthesia care services "under the direction of a physician or dentist authorized to practice in Idaho." The AG read "direction" interchangeably with "supervision," consistent with the position statement of the American Association of Nurse Anesthetists, which observed that the terms "are used interchangeably in licensing laws and nurse practice acts."
So the new CRNA rules did not expand CRNA practice into the nurse-practitioner zone. They preserved the historic role: CRNAs administer anesthesia under physician supervision, distinct from the medical-diagnosis-and-prescription role of the nurse practitioner. Joint promulgation was not required.
Currency note
This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Idaho's Nurse Practice Act first identified the nurse practitioner in 1971 (1971 Idaho Sess. Laws, chs. 17 and 85), and the 1977 amendments (ch. 132) gave the role its current definition: a licensed professional nurse "authorized, by rules and regulations jointly promulgated by the Idaho state board of medicine and the Idaho board of nursing and implemented by the Idaho board of nursing, to perform designated acts of medical diagnosis, prescription of medical therapeutic and corrective measures and delivery of medications." That joint-promulgation requirement was the structural feature that made the question of CRNA classification matter so much: if a CRNA fell within the definition, the Board of Medicine had to participate.
The role of the nurse anesthetist had been settled in case law for decades. The California Supreme Court's 1936 decision in Chalmers-Francis v. Nelson established the framework: nurses administering anesthesia under physician supervision were not engaged in the "illegal practice of medicine." The 1961 Magit decision refined the rule: the special status of "licensed nurses" was the doctrinal hook, and the practice was always under "the immediate direction and supervision of the operating surgeon and his assistants." The Ninth Circuit's 1985 Bhan v. NME Hospitals opinion confirmed the principle in the antitrust context: a CRNA must act at the direction of a physician.
The Board of Nursing's new IDAPA 23.04 rules incorporated the supervision requirement. The AG noted that the choice between "direction" and "supervision" is not legally significant; the terms are used interchangeably in licensing law. The American Association of Nurse Anesthetists position statement quoted in the opinion confirmed: "The terms supervision and direction are used interchangeably in licensing laws and nurse practice acts. These terms are often undefined and are to be interpreted in the context of the reality of practice."
Common questions
What is the difference between a nurse practitioner and a nurse anesthetist?
A nurse practitioner under Idaho Code § 54-1402(d) is authorized to perform medical diagnosis, prescribe therapeutic and corrective measures, and deliver medications, under jointly-promulgated rules of the Boards of Medicine and Nursing. A CRNA administers anesthesia under physician or dentist supervision, and does not engage in independent medical diagnosis or prescribing.
Why did this matter for rulemaking?
If a CRNA were a nurse practitioner, the Board of Medicine had to jointly approve the rules. The AG concluded a CRNA is not a nurse practitioner, so the Board of Nursing could act alone.
What about the supervision/direction distinction?
The AG read the terms as interchangeable, consistent with the AANA position statement and the case law. The CRNA's defining feature is acting under physician oversight, regardless of whether the rule says "supervision" or "direction."
Did the new rules expand CRNA practice?
The AG read them as preserving the historic role, not expanding it. The list of permitted acts in IDAPA 23.04.C.7.b.ii fell within "those traditionally encompassed by that specialty and recognized by the courts."
What if a CRNA performs medical diagnosis or prescribes medications?
That would fall within the nurse-practitioner zone and would require Board-of-Medicine approval through joint rulemaking. The AG concluded this was not the case for the new rules.
Citations
Idaho statutes and rules: Idaho Code § 54-1402(d); 1971 Idaho Sess. Laws, chs. 17 and 85; 1977 Idaho Sess. Laws, ch. 132; IDAPA 23.03.D; IDAPA 23.04.C.7.b.ii.
Cases: Chalmers-Francis v. Nelson, 57 P.2d 1312 (Calif. 1936); Magit v. Board of Medical Examiners, 17 Cal. Rptr. 488, 366 P.2d 816 (1961); Bhan v. NME Hospitals, Inc., 772 F.2d 1467 (9th Cir. 1985).
Other authority: 55 Journal of the American Association of Nurse Anesthetists 103 (1987).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-12.pdf
Original opinion text
ATTORNEY GENERAL OPINION NO. 87-12
TO: Jean Uranga
Attorney at Law
P.O. Box 1678
Boise, Idaho 83701-1678
Per Request for Attorney General's Opinion
QUESTION PRESENTED:
Is a Certified Registered Nurse Anesthetist (CRNA) a "nurse practitioner" as defined by Idaho Code § 54-1402(d) which section, if applicable, would require that rules be jointly promulgated by the boards of medicine and nursing?
CONCLUSION:
No. The CRNA is not a nurse practitioner under the definition of Idaho Code § 54-1402(d) and joint promulgation of rules governing the conduct of the CRNA is not required.
ANALYSIS:
In your letter of July 17, 1987, you seek an opinion on behalf of the Board of Medicine concerning several questions relating to nurse practitioners, Certified Registered Nurse Anesthetists (CRNA), and the authority of the Board of Nursing to adopt rules and regulations without the joint participation by the Board of Medicine. By agreement with counsel for the Board of Nursing, the issue to be addressed was limited solely to the question as set forth above. In order to answer the question, it is necessary to review the history of the nurse practitioner in Idaho and the role of the CRNA in general.
The nurse practitioner was first identified by statute in Idaho in 1971 Idaho Sess. Laws, ch. 17, p.30 and ch. 85, p.187. That function was further clarified and given its present definition and title in 1977 Idaho Sess. Laws, ch. 132, p.279 and now reads as follows:
"Nurse practitioner" means a licensed professional nurse having specialized skill, knowledge and experience authorized, by rules and regulations jointly promulgated by the Idaho state board of medicine and the Idaho board of nursing and implemented by the Idaho board of nursing, to perform designated acts of medical diagnosis, prescription of medical therapeutic and corrective measures and delivery of medications.
Idaho Code § 54-1402(d).
As required by this statute, the scope of practice of a nurse practitioner has been identified in rules jointly adopted by the Board of Nursing and Board of Medicine in IDAPA 23.03.D. These rules and regulations define not only the scope of practice, but also the "designated acts of medical diagnosis, prescription of medical therapeutic and corrective measures and delivery of medications" that may be engaged in by nurse practitioners. The role of the nurse practitioner is thus limited to those specifically identified areas contained within the jointly adopted rules and regulations of the Board of Nursing. These rules and regulations contain an effective date of February, 1980.
From 1979 to 1984, a separate section of the nurse practice rules and regulations was adopted and was in effect covering the conduct of the CRNA. These regulations were unilaterally repealed in 1984, presumably to permit the Board of Nursing to reevaluate the role of the CRNA and adopt new rules and regulations to govern the practice. During the history of both the nurse practitioner and the CRNA in Idaho, at no time were CRNA rules and regulations jointly adopted or approved by the Boards of Medicine and Nursing. In fact, the history indicates that CRNA rules and regulations were not considered a part of the nurse practitioner standards.
Commencing in May, 1985, the Board of Nursing drafted rules concerning the CRNA and submitted them to the Board of Medicine for its review. Over the next two years, the Boards of Nursing and Medicine jointly worked to review and clarify the role of the CRNA. In November, 1986, the Board of Nursing determined that the rules regulating the conduct of the CRNA did not require joint promulgation and proceeded to unilaterally adopt rules governing the CRNA. The rules became effective on August 31, 1987. The Board of Medicine now contends that the CRNA is a "nurse practitioner." If that contention is correct, Idaho Code § 54-1402(d) clearly requires the joint promulgation of rules governing CRNA practice.
The role and the authority of the nurse anesthetist (CRNA) has been a question of some dispute over the years. The test in Idaho, as elsewhere, has generally been whether the nurse anesthetist is engaged in diagnosing medical conditions, prescribing treatment and delivering medications. In the older cases, such conduct was seen as invading the province of the physician and therefore constituted the illegal practice of medicine. Here, the "designated acts" are restricted to nurse practitioners and thus would require joint regulation by both the Board of Medicine and the Board of Nursing.
As long ago as 1936, the California Supreme Court faced the problem of defining the role of nurse anesthetists. The court found that "nurses in the surgery during the preparation for and progress of an operation are not diagnosing or prescribing within the meaning of the Medical Practice Act." Chalmers-Francis v. Nelson, 57 P.2d 1312, 1313 (1936) (emphasis added). The court therefore concluded that nurse anesthetists were not engaged in "the illegal practice of medicine." Id.
A generation later, in 1961, the California Supreme Court revisited the question of who is authorized to administer anesthesia. As background, the court noted "that it is a common practice in California and elsewhere to permit persons not licensed as physicians to administer anesthetics," but emphasized that the practice was limited to "nurses and interns." Magit v. Board of Medical Examiners, 17 Cal. Rptr. 488, 366 P.2d 816, 818 (1961). The court noted that in California (as in Idaho) the statutes do not "specifically provide that one who administers anesthetics must have a license to practice medicine. . . ." Id. Reviewing its earlier decision in Chalmers-Francis, the court held that "[t]he decision was thus based on the special status of a licensed nurse" and could not be used by foreign-trained but unlicensed doctors to engage in anesthesiology. 366 P.2d at 820.
The case law further demonstrates that the nurse anesthetist at all times operates under the supervision and direction of a physician. See Chalmers-Francis v. Nelson, 57 P.2d at 1313 (nurse anesthetist acts "under the immediate direction and supervision of the operating surgeon and his assistants"); Magit v. Board of Medical Examiners, 366 P.2d at 819 ("licensed registered nurse should not be restrained from administering general anesthetics in connection with operations under the immediate direction and supervision of the operating surgeon and his assistants"); Bhan v. NME Hospitals, Inc., 772 F.2d 1467, 1471 (9th Cir. 1985) ("in administering anesthesia a nurse must act at the direction of, and under the supervision of, inter alia, a physician").
The question of this "supervision" or "direction" of nurse anesthetists is said to be the very crux of the Board of Medicine's concern over the new rules. We do not read the new rules as departing from the long-established tradition in Idaho and elsewhere of having nurse anesthetists function under the supervision and direction of physicians. In its definition of a "registered nurse anesthetist," the Board of Nursing states that such specialists may provide anesthesia care services only "as defined in these rules and under the direction of a physician or dentist authorized to practice in Idaho." IDAPA 23.04.C.7.b.ii (emphasis added). We do not ascribe any major significance to the choice of the word "direction" as opposed to that of "supervision" (or any combination of the two). The position statement of the foremost professional group of nurse anesthetists states:
The terms supervision and direction are used interchangeably in licensing laws and nurse practice acts. These terms are often undefined and are to be interpreted in the context of the reality of practice.
"Position Statement on Relationships Between Health Care Professionals," adopted by AANA Board of Directors, March 1, 1987, quoted in 55 Journal of the American Association of Nurse Anesthetists 103 (1987).
Looking at the historical role of the CRNA and the cited cases, it is clear that the nurse anesthetist does not engage in diagnosis, write prescriptions, or deliver medications as contemplated by Idaho Code § 54-1402(d). Rather, the CRNA works under the supervision and direction of a physician or dentist in administering anesthesia. The rules and regulations of the Board of Nursing are consistent with the historical role of the nurse anesthetist and do not violate those principles established early on in the cases discussing the CRNA; nor does the function of the CRNA impinge on that area reserved to the nurse practitioner. We do not read the list of acts enumerated by the Board of Nursing in IDAPA 23.04.C.7.b.ii as expanding the scope of practice of nurse anesthetists beyond that traditionally encompassed by that specialty and recognized by the courts. Thus, it is our opinion that the CRNA is not a nurse practitioner as defined by Idaho law and there is no requirement of joint promulgation of rules with the Board of Medicine governing the conduct of the CRNA.
AUTHORITIES CONSIDERED:
- Idaho Statutes and Administrative Rules
Idaho Code § 54-1402(d)
1971 Idaho Sess. Laws, chapters 17 and 85
1977 Idaho Sess. Laws, chapter 132
IDAPA 23.03.D
IDAPA 23.04.C.7.b.ii
- Cases
Chalmers-Francis v. Nelson, 57 P.2d 1312 (Calif. 1936)
Magit v. Board of Medical Examiners, 17 Cal. Rptr. 488, 366 P.2d 816 (1961)
Bhan v. NME Hospitals, Inc., 772 F.2d 1467 (9th Cir. 1985)
- Other
55 Journal of the American Association of Nurse Anesthetists 103 (1987)
DATED this 6th day of October, 1987.
ATTORNEY GENERAL
State of Idaho
JIM JONES
ANALYSIS BY:
JOHN J. McMAHON
Chief Deputy
DANIEL G. CHADWICK
Deputy Attorney General
Chief, Intergovernmental Affairs Division