Did the SC AG decide whether hospital nurses could administer propofol under federal anesthesia rules?

Plain-English summary

In 2010, the South Carolina Society of Anesthesiologists asked the Attorney General to revisit a June opinion about nurses administering propofol. The AG kept its earlier state-law conclusion: South Carolina law generally allowed registered nurses to administer prescribed medications, including propofol, subject to stated regulatory exceptions. The new opinion identified a federal hospital anesthesia regulation and a CMS memorandum that might conflict with that state-law conclusion.

The office said only a court could decide whether the federal rule preempted state law. It found no decision resolving the precise conflict and suggested a declaratory judgment to settle it. Thus the opinion did not decide that the federal regulation actually displaced the state rule.

Currency note

This opinion was issued in 2010. 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.

Common questions

Did the AG withdraw its earlier reading of South Carolina nursing law? A: No. It said the June 2010 conclusion under state law stood because that earlier request had not raised federal regulations.

What new federal issue did the opinion identify?
A: It examined federal hospital anesthesia staffing rules and a CMS memorandum concerning propofol, and said they appeared to conflict on their face with the state-law reading.

Did the AG make a final preemption ruling?
A: No. It said only a court could determine whether the federal rule preempted state law and found no decision on the precise question.

Background and statutory framework

The June opinion concerned South Carolina's nursing statute. In response to this request, the AG added 42 C.F.R. § 482.52, which identified categories of people authorized to administer anesthesia in hospitals, and the related CMS guidance. It distinguished its state-law answer from the unresolved federal preemption question.

Citations and references

The opinion discussed S.C. Code § 40-33-20(48)(f), 42 C.F.R. § 482.52, and the CMS February 5, 2010 interpretive guidelines.

Official title

Review of nurse-administered propofol under state and federal anesthesia rules

Requester

Jennifer Root, M.D., President, South Carolina Society of Anesthesiologists

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-29-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/root-j-os-9103-11-29-10-review-prior-opinion-administer-medications-propofol.pdf

Original opinion text

HENRY MCMASTER
AITORNEY GENERAL

November 29, 2010

Jennifer Root, M.D.
President, South Carolina Society of Anesthesiologists
PO Box 20189
Charleston, SC 29413

,·

Dear Dr. Root:
Pursuant to your request, this Office has reviewed the opinion written to Representative Tracy Edge on June 23, 20 I 0. After review, we conclude that, under state law, our conclusion stands. At the time the opinion was issued, the only question posed concerned state law. We were not made aware of the possible impact of any relevant federal regulations until subsequent questions were raised. Ordinarily, this Office does not opine on federal regulations. However, in researching whether our June 23, 2010 opinion is correct, it has come to our attention that 42 C.F.R. § 482.52, is germane to the issue presented. In relevant part, 42 CFR 482.52 which addresses hospital anesthesia service requirements, states as follows:

If the hospital furnishes anesthesia services, they must be provided in a well-organized manner under the direction of a qualified doctor of medicine or osteopathy. The service is responsible for all anesthesia administered in the hospital. (a)

Standard: Organization and staffing. The organization ofanesthesia services must be appropriate to the scope of the services offered. Anesthesia must be administered only by-(1) A qualified anesthesiologist; (2) A doctor of medicine or osteopathy (other than an anesthesiologist); (3) A dentist, oral surgeon, or podiatrist who is qualified to administer anesthesia under State law; (4) A certified registered nurse anesthetist (CRNA), as defined in§ 410 .69(b) of this chapter, who, unles~ exempted in accordance with paragraph (c) of this section, is under the supervision of the operating practitioner or of an anesthesiologist who is immediately available if needed; or (5) An anesthesiologist's assistant, as defined in§ 410.69(b) of this chapter, who is under the supervision of an anesthesiologist who is immediately available if needed.

REMBERTC. DENNIS B UILDING

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PoST OFFICE B ox 11549

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COLUMBlA,SC 29211 -1549

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TELEPHONE 803-734-3970

• FACSIMILE 803-253-6283

Dr. Root
Page 2
November 29, 2010

42 C.F .R. § 482.52 (emphasis added).
The Department of Health & Human Services' Centers for Medicare & Medicaid Services (CMS) issued a memorandum on February 5, 2010 entitled Revised Hospital Anesthesia Services Interpretive Guidelines in an attempt to clarify 42 CFR § 482.52. The memorandum issued by CMS essentially eliminated propofol 1 as an agent that can be used by nurses. Under 42 C.F.R. § 482.52, only 1) an anesthesiologist; 2) a doctor of medicine or osteopathy; 3) a dentist, oral surgeon, or podiatrist who is qualified to administer anesthesia under State law; 4) a certified registered nurse anesthetist (CRNA), or 5) an anesthesiologist's assistant (AA) can administer anesthesia. Under the S.C. Code of Laws, registered nurses may administer and deliver "medications and treatments prescribed by an authorized licensed provider." S.C. Code§ 40-33-20(48)(f). Exceptions where registered nurses are limited in their ability to administer sedation medication are carved out by S.C. Regulation 81-96, 2 in reference to office-based surgeries, and S.C. Regulation 61-12, 3 in reference to abortions. Nevertheless, State law is such that, in most instances, registered nurses may administer medications, including propofol. Accordingly, South Carolina state law, S.C. Code§ 40-33-20(48)(f), appears to be, on its face, in direct conflict with the federal regulation 42 C.F.R. § 482.52. Of course, only a court can determine if a state law is preempted by federal law. Moreover, there is a strong presumption against preemption; 4 however, it is well established that where a "state statute conflicts with, or frustrates,

1

Propofol is an "intravenous sedative-hypnotic agent for use in the induction and maintenance of anesthesia or sedation in a human patient." Astrazeneca Pharmaceuticals LP v. Mayne Pharma (USA) Inc., 2005 WL 2864666. Propofol administration is considered an anesthesia service. 2

S.C. Reg. 81-96 "prohibit[s] the administration of anesthetics, for sedation by [anyone] other than a qualified anesthesia provider" during office-based surgeries. S.C. Reg. 81-96 (statutory authority derived from S.C. Code§§ 40-1-70 and 40-47-10(I)(3)). 3

S. C. Reg. 61-12 explains that "[g]eneral anesthesia shall be administered only by a certified registered nurse anesthetist, anesthesiologist, or dentist anesthetist or physician anesthetist during an actual abortion procedure. S.C. Reg. 61-12. 4

See e.g .. Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644, 645, 123 S.Ct. 1855, 1858 (2003) ("there is a presumption that the state statute is valid").

Dr. Root
Page 3
November 29, 2010
federal law, [the] former must give way." 5 In this instance, we have located no decision addressing the preemptive effect of 42 C.F.R. § 482.52. Since only a court can determine if a state law is preempted, a declaratory judgment may thus be advisable in order to settle with finality the status of this question. Sincerely, Henry McMaster Attorney General

By:

Leigha Blackwell
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General

5

Quigley v. Rider, 593 S.E.2d 476 (2003). See, Weston v. Kim's Dollar Store, 684 S.E.2d 769 (2009) ("any state law that conflicts with federal law is without effect."); U.S.C.A. Const. Art. 6, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ).