Does Oklahoma's 2020 nursing law (SB 801) and the Governor's federal Medicare opt-out letter let certified registered nurse anesthetists (CRNAs) practice independently of physicians?

Plain-English summary

Representative Marcus McEntire asked whether Oklahoma's 2020 nursing-law amendment and the Governor's Medicare opt-out letter allow certified registered nurse anesthetists (CRNAs) to practice independently. The Attorney General answered no. Senate Bill 801 changed the state-law relationship from physician supervision to collaboration, but a CRNA must still practice under an agreement with a licensed medical doctor, osteopathic physician, podiatric physician, or dentist performing or directly involved in the procedure.

The statute defines collaboration as working jointly toward a common goal for the same patient, with both parties formulating, discussing, and agreeing on the anesthesia plan. The collaborator must remain available for timely onsite consultation during anesthesia delivery. The opinion says the statute does not specify whether the agreement must be written or how detailed it must be.

The Governor's November 2020 letter opted Oklahoma out of a federal Medicare physician-supervision condition. The opinion says this removed a federal constraint on applying the state law, but did not itself change the state-law relationship. It partially withdraws a 2012 Attorney General opinion insofar as that earlier opinion required physician oversight under the old supervision wording. Its analysis of timely onsite consultation remains relevant.

What this means for you

If you are a CRNA

Work with a licensed collaborator who performs or is directly involved with the patient's procedure. The opinion says the CRNA and collaborator must jointly formulate and agree on the anesthesia plan; unilateral administration without the collaborator's assent is not independent practice authorized by the statute. Ensure timely onsite consultation is available during delivery. The opinion does not impose a written-agreement requirement, although it identifies an agreement as necessary.

If you are a collaborating clinician

The former supervision requirement no longer makes you responsible for oversight of the CRNA as that term was used in the 2012 opinion. The collaboration provision still calls for joint planning and agreement on the anesthesia plan, and for your availability for timely onsite consultation. The opinion treats what counts as timely as dependent on the medical scenario and medical judgment; it gives no fixed distance or response-time rule.

If you administer a hospital or surgical facility

The federal Medicare opt-out did not replace Oklahoma's collaboration requirement. When reviewing CRNA arrangements, distinguish the federal reimbursement condition from the state-law agreement, joint anesthesia planning, and onsite-consultation requirements addressed here. The opinion also identifies parallel federal opt-out rules for critical access hospitals and ambulatory surgical centers.

Common questions

Can a CRNA administer anesthesia without a collaborating physician, dentist, or podiatrist?

No. The opinion says SB 801 did not permit independent practice. A CRNA must operate under the collaboration agreement described in 59 O.S.2021, § 567.3a(10)(h).

Must the collaboration agreement be in writing?

The opinion says SB 801 "did not delineate whether the agreement should be written" or how specific it must be. It does require an agreement and joint formulation, discussion, and approval of the anesthesia plan.

Must the collaborator stay in the procedure room?

The opinion requires availability for timely onsite consultation, but does not set a location or minute count. It incorporates the 2012 opinion's view that timeliness depends on the medical scenario and medical judgment.

Did the Governor's Medicare opt-out letter change Oklahoma nursing law?

No. The letter removed the federal Medicare physician-supervision constraint; Oklahoma's Nursing Act still defines the CRNA's state-law practice relationship. The opinion cites Colorado Medical Society v. Hickenlooper in a footnote for the point that a governor's attestation of consistency with state law was the governor's legal opinion and did not itself alter state law.

What part of the 2012 Attorney General opinion remains useful?

Its physician-oversight analysis conflicts with SB 801 and is withdrawn to that extent. Its discussion of "timely onsite consultation" remains relevant and is incorporated by reference.

Did SB 801 eliminate physician involvement?

No. It eliminated the statutory supervision and oversight requirement, while retaining collaboration, joint anesthesia planning, and availability for timely onsite consultation.

Background and statutory framework

Before SB 801, the Nursing Act required a CRNA administering anesthesia to be under physician supervision. The 2020 amendment substituted "in collaboration with" and added a definition in § 567.3a(10)(h). The definition names licensed physicians, podiatric physicians, and dentists and requires their involvement with the procedure, agreement on the plan, and availability for timely onsite consultation.

The federal regulation at 42 C.F.R. § 482.52 permits a governor to request an opt-out from the Medicare supervision condition. Oklahoma's Governor did so in November 2020. The Attorney General separates that federal action from the duties the amended Nursing Act places on CRNAs and collaborators.

Source

• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2024/AG%20Opinion%202024-14%202024%20OK%20AG%2014.pdf
• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2024/ag-opinion-24-14.html

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-14

Representative Marcus McEntire
September 27, 2024
Oklahoma House of Representatives, District 50
Oklahoma State Capitol
2300 N. Lincoln Blvd., Room 204B
Oklahoma City, OK 73105-4805

Dear Representative McEntire:

This office has received your request for an Attorney General Opinion in which you ask, in effect, the following questions:

1. Did the Governor’s decision to exempt the State from Medicare’s “physician-supervision requirement” modify the relationship between a physician and a certified registered nurse anesthetist (“CRNA”) as defined by the Oklahoma Nursing Practice Act (“Nursing Act”)?

2. Does the Nursing Act allow CRNAs to practice independently from a collaborating physician licensed by the State of Oklahoma?

3. Does the Nursing Act require the collaborating physician to oversee a patient’s treatment plan by remaining onsite for timely oversight and consultation during the delivery of anesthesia?

I.
SUMMARY

First, the Governor’s request for exemption letter did not modify the physician-CRNA relationship in Oklahoma. Oklahoma law governs the relationship between physicians and CRNAs. Second, Senate Bill 801, 2020 Okla. Sess. Laws ch. 11, § 1 (“SB 801”), which amended the Nursing Act, did not open the door for CRNAs to practice independently from a collaborating physician. To practice, the CRNA must operate under a collaboration agreement as described in title 59 section 567.3a(10)(h). Third, due to SB 801’s shift from supervision to collaboration, collaborating physicians are no longer required to oversee CRNAs. As a result, a 2012 opinion, 2012 OK AG 21 (the “2012 Opinion”) of this office is now partially withdrawn. Fourth and finally, SB 801 continues to require physicians working with CRNAs to be available for timely onsite consultation.

Representative Marcus McEntire
A.G. Opinion
Oklahoma House of Representatives, District 50 Page 2

II.
BACKGROUND

Pursuant to title 42, section 482.52(a)(4) and (c)(1) of the Code of Federal Regulations, the Governor submitted a letter 1 (“Governor’s Letter”) to Administrator Seema Verma for the Centers for Medicare and Medicaid Services on November 20, 2020, requesting an exemption from physician supervision of CRNAs providing anesthesia services in the state. 2 Under section 482.52(c)(1), the Governor’s Letter “must attest that he or she has consulted with [the] State Boards of Medicine and Nursing about issues related to access to and the quality of anesthesia services in the State and has concluded that it is in the best interests of the State’s citizens to opt- out of the current physician supervision requirement, and that the opt-out is consistent with State law.” 42 C.F.R. § 482.52(c)(1) (2008). The Governor’s Letter fulfilled the requirements of title 42, section 482.52(c) of the Code of Federal Regulations. In the letter, the Governor attested that he discussed the supervision requirement with the State Boards of Nursing and Medical Licensure and Supervision, and he then demonstrated the exemption’s congruity with state law by highlighting the recent passage of SB 801, which eliminated the supervision requirement in the Nursing Act. On submission, the Governor’s request for exemption became effective. Id. § 482.52(c)(2).

Prior to SB 801’s enactment, the Nursing Act required CRNAs administering anesthesia in Oklahoma to be under the supervision of a physician. 59 O.S.2011 § 567.3a(10). On becoming law, SB 801 shifted anesthesia nursing practice from supervision to collaboration. Now, section 567.3a(10), in pertinent part, states:

[A] “Certified Registered Nurse Anesthetist” is an Advanced Practice Registered Nurse who . . . administers anesthesia in collaboration with a medical doctor, an osteopathic physician, a podiatric physician or a dentist licensed in this state and under conditions in which timely onsite consultation by such doctor, osteopath, podiatric physician or dentist is available . . . A Certified Registered Nurse Anesthetist, in collaboration with a medical doctor, osteopathic physician, podiatric physician or dentist licensed in this state, and under conditions in which timely, on-site consultation by such medical doctor, osteopathic physician, podiatric physician or dentist is available, shall be authorized pursuant to rules adopted by the Oklahoma Board of Nursing, to order, select, obtain and administer legend drugs, Schedules II through V controlled substances, devices, and medical gases only when engaged in the preanesthetic preparation and evaluation; anesthesia induction, maintenance and emergence; and postanesthesia care. A

1
Letter of J. Kevin Stitt, Governor of Oklahoma, to Seema Verma, Administrator of the Centers for Medicare and Medicaid Services (Nov. 20, 2020) (on file with author). The Governor’s Letter actually cited to the final rule in the Federal Register.
2
Federal regulations establish the same physician-supervision requirement for critical access hospitals, 42 C.F.R. § 485.639 (2020), and ambulatory surgical centers, 42 C.F.R. § 416.42 (2020), to receive Medicare reimbursement for CRNAs who administer anesthesia. Both provisions have opt-out provisions identical to 42 C.F.R.
§ 482.52(c) (2008).

2

Representative Marcus McEntire
A.G. Opinion
Oklahoma House of Representatives, District 50 Page 3

Certified Registered Nurse Anesthetist may order, select, obtain and administer drugs only during the perioperative or periobstetrical period.

59 O.S.2021, § 567.3a(10)(a)(2), (b) (emphasis added). From the changes to the Nursing Act and considering the Governor’s exemption letter to Administrator Verma, this office is asked (1) how, if at all, the Governor’s action modified the physician-CRNA relationship and (2) the extent to which SB 801 relaxed such relationship.

III.
DISCUSSION

A. Oklahoma’s Nursing Act governs the physician-CRNA relationship.

The Nursing Act governs the practice of nursing in Oklahoma. In fact, the Nursing Act prohibits any person from practicing or offering to practice any type of nursing if he or she has not complied with the act. 59 O.S.2021, § 567.14(A). Nursing education, certification licensure, and practice “affect the public health, safety and welfare and, in the public interest, [are] therefore subject to regulation and control by the Oklahoma Board of Nursing.” Id. § 567.2(A)(1). Title 59, section 567.5a of the Oklahoma Statutes establishes licensure requirements for advanced practice registered nurses (“APRNs”), which is the umbrella term CRNAs fall under. Section 567.5a(B) requires CRNA licensure applicants to complete necessary education and training, obtain certification recognized by the Oklahoma Board of Nursing, possess a registered nurse license, and submit to a criminal background check, among other prerequisites to licensure. The Board of Nursing also reviews applications for APRNs seeking prescriptive authority. Id. § 567.5a(D).

In contrast, the relevant federal regulation, 42 C.F.R. § 482.52, imposes a condition precedent on hospitals participating in Medicare and receiving federal reimbursement for providing anesthesia services. 3 The Code of Federal Regulations refers to these stipulations as conditions for participation. See generally 42 C.F.R. § 482 (2024). It also requires hospital personnel to be “licensed or meet other applicable standards that are required by State or local laws.” 42 C.F.R. § 482.11(c) (2020). Consequently, the Governor’s request to opt-out of the physician-supervision requirement for CRNAs under 42 C.F.R. § 482.52(b-c) did not modify the relationship between CRNAs and physicians but rather removed federal regulatory constraints affecting the application of SB 801. Withdrawal from the federal conditions of participation has no effect on the relationship between physicians and CRNAs with respect to Oklahoma law.

B. Oklahoma law does not permit a CRNA to practice independently from his or her collaborating physician.

While the Legislature did eliminate supervision from section 567.3a(10) in SB 801, it left no doubt that the physician-CRNA relationship should be retained. Prior to SB 801, the Legislature had not

3
See also Colorado Medical Society v. Hickenlooper, 2015 CO 41, ¶ 5, 349 P.3d 1133, 1135. In this case, the Colorado Supreme Court denied a challenge from medical groups opposing the same request for exemption letter sent by the state’s governor to CMS. The court concluded that the Governor’s attestation regarding consistency with state law only constituted his legal opinion and nothing more. Id. ¶¶ 15-16, 349 P.3d at 1137.

3

Representative Marcus McEntire
A.G. Opinion
Oklahoma House of Representatives, District 50 Page 4

defined the term “supervision.” However, the 2012 Opinion issued by this office construed “supervision,” as used in section 567.3a(10), to require physician oversight of CRNAs. 2012 OK AG 21, ¶ 6. This office concluded that oversight meant a physician owed a duty to supervise the care of their patients, and that this duty required the physician to competently determine whether their physical presence was necessary based on the particular medical circumstances of each patient. Id.

Conversely, in SB 801, the Legislature added a new paragraph h to section 567.3a(10) to define collaboration and its contours as:

[A]n agreement between a medical doctor, osteopathic physician, podiatric physician or dentist performing the procedure or directly involved with the procedure and the Certified Registered Nurse Anesthetist working jointly toward a common goal providing services for the same patient. This collaboration involves the joint formulation, discussion and agreement of the anesthesia plan by both parties, and the collaborating medical doctor, osteopathic physician, podiatric physician or dentist performing the procedure or directly involved with the procedure and that collaborating physician shall remain available for timely onsite consultation during the delivery of anesthesia for diagnosis, consultation, and treatment of medical conditions.

59 O.S.2021, § 567.3a(10)(h) (emphasis added).

SB 801 notably did not delineate whether the agreement should be written and how specific the agreement must or should be to define the relationship. Regardless, construing this provision requires the office to heed the Supreme Court’s instructions regarding statutory construction. “The fundamental purpose of statutory construction is to ascertain and give effect to the intent of the Legislature.” Leo v. Oklahoma Water Res. Bd., 2023 OK 96, ¶ 17, 536 P.3d 939, 947 (citing Rickard v. Coulimore, 2022 OK 9, ¶ 5, 505 P.3d 920, 923). This requires an examination of the statute’s language. Id. Here, the Nursing Act plainly requires an agreement between a physician and the CRNA to be in place. Nothing under section 567.3a(10)(h) expressly permits a CRNA to decide unilaterally without first consulting a collaborating physician. As stated under the definition of collaboration, the physician must either be “[(1)] performing the procedure, or [(2)] directly involved with the procedure.” 59 O.S.2021, § 567.3a(10)(h). By mandating that the CRNA and collaborating physician must “jointly” arrive at a “common goal,” a CRNA does not possess independent discretion when administering anesthesia or other drugs without a collaborating physician’s assent. 4

Counterintuitively, the impact of the change from supervision to collaboration falls more on practicing physicians than on CRNAs. Collaboration no longer includes a physician’s duty to

4
Although the Nursing Act permits a CRNA to seek and receive authorization to order, select, obtain and administer anesthesia and drugs, this authorization does not remove the requirement that the CRNA must have an agreement with a collaborating physician to practice as a CRNA. With the authorization to order, select, obtain, and administer anesthesia and drugs, the CRNA may work directly with the physician performing the procedure. Without such authorization, the CRNA will likely work under an agreement with an anesthesiologist.

4

Representative Marcus McEntire
A.G. Opinion
Oklahoma House of Representatives, District 50 Page 5

supervise CRNAs. Rather to comply with SB 801, a physician and a CRNA must formulate an agreement as described above. Thus, collaboration only removes a physician’s duty to supervise and the change in the statutory language does not grant a CRNA any more allowance to practice independently from a physician than they had when the statute required supervision.

Your request next asked whether the collaborating physician must be directly involved in a patient’s treatment plan. The plain language in SB 801’s definition of “collaboration” demonstrates that the physician will be involved as described in this section. Without the physician’s agreement and involvement, the treatment plan cannot be administered. Consequently, this office determines that an answer to this question is unnecessary as the answer is clear on the statute’s face.

C. The collaborating physician is not required to supervise or provide supervision to the CRNA. The physician is, however, required to be available for timely onsite consultation.

As mentioned previously, the 2012 Opinion issued by this office construed section 567.3a(10) to require physician oversight of CRNAs. 2012 OK AG 21, ¶ 6. Once SB 801 became effective, language under section 567.3a(10) no longer included “supervision.” As discussed above, the Legislature removed “supervision” and replaced it with “collaboration.” Giving effect to the Legislature’s intent in enacting SB 801 requires a reassessment of whether the 2012 Opinion accurately reflects the statutory change. This office concludes that it does not. Crucially, the 2012 Opinion and the new language under section 567.3a(10) conflict. As a result, SB 801’s shift in the relationship means that physician oversight over a CRNA is no longer required under Oklahoma law.

A second part to your fourth question addressed the meaning of “timely onsite consultation.” See 2012 OK AG 21, ¶¶ 8-12. The 2012 Opinion concluded that such consultation depends on the “medical scenario” and “implicates medical judgment.” Id. ¶ 12. Although the Legislature replaced supervision with collaboration, it did not remove its mandate on the collaborating physician to be available for “timely onsite consultation.” Because timely onsite consultation remains a requirement under section 567.3a(10), the 2012 Opinion’s analysis concerning timely onsite supervision remains relevant. Accordingly, such analysis is hereby incorporated by reference.

It is, therefore, the official Opinion of the Attorney General that:

1. Oklahoma law governs the physician-CRNA relationship. Instead of modifying such relationship, the Governor’s request for exemption letter to the Centers for Medicare and Medicaid Services from the physician supervision requirement under 42 C.F.R. § 482.52 removed federal regulatory constraints suppressing SB 801’s uniform application.
2. A CRNA must practice under a collaboration agreement as required by title 59, section 567.3a(10)(b, h), and therefore cannot practice independently.

5

Representative Marcus McEntire
A.G. Opinion
Oklahoma House of Representatives, District 50 Page 6

3. The passage of SB 801 shifted the physician-CRNA relationship from supervision to collaboration. Consequently, physician “oversight” of CRNAs is no longer required as the term “supervision” encompasses oversight. See 2012 OK AG 21, ¶ 6. To the extent that 2012 OK AG 21 conflicts with this opinion, it is expressly withdrawn.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

ASHLEY N. YOUNGBLOOD
ASSISTANT ATTORNEY GENERAL

6