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?

Subject

Attorney General opinion concerning the physician supervision requirement of certified registered nurse anesthetists (CRNAs).

Plain-English summary

Oklahoma changed how nurse anesthetists work with physicians in 2020. SB 801 replaced the prior "supervision" model with a "collaboration" model. A representative asked the AG four related questions: (1) Did the Governor's federal Medicare opt-out letter to CMS modify the physician-CRNA relationship under Oklahoma law? (2) Can CRNAs now practice independently? (3) Must a collaborating physician oversee a patient's treatment plan and remain onsite during anesthesia delivery? Plus an implicit fourth: Is 2012 OK AG 21 still good law?

The AG's answers:

1. The Governor's letter did not change state law. It removed a federal regulatory constraint on Medicare billing, but the physician-CRNA relationship is governed by Oklahoma's Nursing Act, not by federal rules.

2. CRNAs cannot practice independently. SB 801 added a definition of "collaboration" (59 O.S. § 567.3a(10)(h)) that requires "an agreement" between a physician (or podiatrist or dentist) and the CRNA "working jointly toward a common goal" with "joint formulation, discussion and agreement of the anesthesia plan by both parties." A CRNA can't go solo.

3. Physicians no longer must "supervise" CRNAs in the old sense, but must remain available for timely onsite consultation. The shift from supervision to collaboration removed the prior physician oversight duty (under 2012 OK AG 21), but the timely-onsite-consultation requirement survives in the new statute. To that extent, 2012 OK AG 21 is partially withdrawn.

The opinion notes a counterintuitive consequence: the change from supervision to collaboration "falls more on practicing physicians than on CRNAs." Physicians lose the prior supervision duty but gain a co-equal joint-planning duty. CRNAs gain no new independence but still need a collaborating physician.

What this means for you

For certified registered nurse anesthetists in Oklahoma

You cannot administer anesthesia independently. You need a written or otherwise documented collaboration agreement with a medical doctor, osteopathic physician, podiatric physician, or dentist licensed in Oklahoma. That collaborator must be available for "timely onsite consultation" during the delivery of anesthesia. Your prescriptive authority and ability to order Schedule II-V controlled substances during the perioperative or periobstetrical period depends on having that collaboration agreement in place and on Board of Nursing rules implementing 59 O.S. § 567.3a(10).

Practical points: get the collaboration agreement in writing, even though SB 801 does not expressly require writing. Document the joint planning, including how the anesthesia plan was formulated, who agreed to it, and when. The opinion makes clear that "joint formulation, discussion and agreement" is a defining feature; a CRNA who unilaterally develops the plan and presents it for rubber-stamping may not be operating within the statute's collaboration model.

For physicians, dentists, and podiatrists collaborating with CRNAs

Your old supervision duty is gone, but your collaboration duty is not lighter: it's different. You must (a) be performing the procedure or directly involved with it, (b) jointly develop and agree to the anesthesia plan with the CRNA, and (c) remain available for timely onsite consultation during anesthesia delivery. "Available for timely onsite consultation" is fact-specific; the AG's 2012 opinion's analysis on what that means is incorporated by reference and remains relevant.

Your liability exposure may shift. Under the supervision model, you could be on the hook for failing to oversee the CRNA's work. Under the collaboration model, you may face liability for failing to be jointly involved in the plan or for being unavailable when consultation was needed.

For hospitals, surgery centers, and other facilities

The Governor's CMS opt-out (effective November 2020) means the federal physician-supervision requirement no longer blocks Medicare reimbursement of CRNA-administered anesthesia in your facility. But state law still requires the physician-CRNA collaboration relationship. Your medical staff bylaws, anesthesia services contracts, and credentialing should reflect the collaboration model and the timely-onsite-consultation requirement.

Federal regulations applicable to critical access hospitals (42 C.F.R. § 485.639) and ambulatory surgical centers (42 C.F.R. § 416.42) have parallel opt-out provisions; the Governor's letter covered those too.

For the Oklahoma Board of Nursing and Board of Medical Licensure

This opinion clarifies that the supervision model (and 2012 OK AG 21's interpretation of it) is partially superseded by SB 801. Update guidance documents, model collaboration agreements, and disciplinary review standards to reflect the collaboration framework. The "timely onsite consultation" standard from 2012 OK AG 21 remains good law.

Common questions

What changed when the Governor sent the CMS opt-out letter in November 2020?

Federal regulation 42 C.F.R. § 482.52(c) lets a state opt out of the federal physician-supervision requirement for CRNA-administered anesthesia in Medicare-billing hospitals. The Governor attested that opt-out was consistent with Oklahoma law (because SB 801 had eliminated the supervision requirement). On submission, the opt-out became effective. But this opt-out is purely a federal billing matter; it doesn't change the Oklahoma state law governing how CRNAs and physicians work together.

Can my collaborating physician be in another building or just on call?

The statute requires the collaborator to be available for "timely onsite consultation." 2012 OK AG 21 read this as fact-specific, depending on the medical scenario. "On call from across town" probably doesn't satisfy "timely onsite." Practical reading: the collaborator should be in the facility or close enough to be present quickly during anesthesia delivery.

What's the difference between "supervision" and "collaboration"?

Supervision (pre-SB 801) implied physician oversight: a duty to supervise the care of the patient, with the physician potentially needing to be physically present based on circumstances. Collaboration (post-SB 801) means joint planning and shared responsibility: both the physician and CRNA must be involved in formulating and agreeing to the anesthesia plan, and the physician must remain available for timely onsite consultation.

Does this affect CRNAs in office-based dental anesthesia?

Yes. The statute lists "medical doctor, osteopathic physician, podiatric physician or dentist licensed in this state" as eligible collaborators. A CRNA providing anesthesia in a dental office can collaborate with the dentist if the dentist is the one performing or directly involved with the procedure.

Why did the Legislature make this change in SB 801?

The opinion doesn't speculate, but the change aligns with broader trends to expand advanced practice nursing scope while preserving physician involvement. The Governor's CMS opt-out indicates a goal of expanding rural anesthesia access, where stationed-physician supervision can be a constraint.

Background and statutory framework

The Oklahoma Nursing Act (59 O.S. §§ 567.1 et seq.) governs nursing licensure and practice. CRNAs fall under the umbrella of "advanced practice registered nurses" (APRNs). Pre-SB 801, the Act required CRNAs to administer anesthesia "under the supervision of" a physician. 59 O.S.2011 § 567.3a(10).

SB 801 (2020) made two key changes:

1. Replaced "under the supervision of" with "in collaboration with" in § 567.3a(10).
2. Added subsection (h) defining "collaboration" as an agreement between the CRNA and a physician (or podiatrist or dentist) "performing the procedure or directly involved with the procedure," involving "joint formulation, discussion and agreement of the anesthesia plan by both parties," with the collaborator available for timely onsite consultation.

The Governor's November 20, 2020 letter to CMS Administrator Seema Verma exercised Oklahoma's right to opt out of the federal Medicare physician-supervision requirement for CRNAs (42 C.F.R. § 482.52(c)). The Colorado Supreme Court in Colorado Medical Society v. Hickenlooper held that a similar gubernatorial attestation about consistency with state law is "the Governor's legal opinion and nothing more"; it didn't itself change state law.

The 2012 OK AG 21 opinion, on the supervision model, read "supervision" to require physician oversight, with the physician deciding whether physical presence was needed. SB 801 supersedes this on the supervision/oversight question, but preserves the timely-onsite-consultation requirement.

Citations

• 59 O.S. § 567.2(A)(1) (Nursing affects public health, subject to Board of Nursing regulation)
• 59 O.S. § 567.3a(10) (CRNA definition; collaboration with physician)
• 59 O.S. § 567.3a(10)(a)(2) (collaboration and timely onsite consultation requirement)
• 59 O.S. § 567.3a(10)(b) (CRNA prescriptive authority subject to collaboration)
• 59 O.S. § 567.3a(10)(h) (definition of collaboration)
• 59 O.S. § 567.5a (advanced practice registered nurse licensure)
• 59 O.S. § 567.14(A) (no person may practice nursing without compliance with Act)
• Senate Bill 801, 2020 Okla. Sess. Laws ch. 11, § 1
• 42 C.F.R. § 482.52, 482.52(c) (Medicare physician-supervision condition; opt-out procedure)
• 42 C.F.R. § 485.639 (critical access hospitals)
• 42 C.F.R. § 416.42 (ambulatory surgical centers)
• Leo v. Oklahoma Water Res. Bd., 2023 OK 96, 536 P.3d 939 (statutory construction)
• Rickard v. Coulimore, 2022 OK 9, 505 P.3d 920
• Colorado Medical Society v. Hickenlooper, 2015 CO 41, 349 P.3d 1133 (gubernatorial CMS attestation does not change state law)
• 2012 OK AG 21 (partially withdrawn to extent it requires physician oversight; timely-onsite-consultation analysis preserved)

Source

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

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-14

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

September 27, 2024

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.

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 ("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. 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.

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 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).

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). 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. The Legislature added a new paragraph h to section 567.3a(10) to define collaboration:

[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).

Nothing under section 567.3a(10)(h) expressly permits a CRNA to decide unilaterally without first consulting a collaborating physician. 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.

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 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.

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." 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.

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