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HUSCH BLACKWELL
Fred Miles
Partner
Peggy E. Kozal
Senior Counsel
1700 Lincoln Street, Suite 4700
Denver, CO 80203
Direct: 303.749.7288
Fax: 303.749.7272
peggy.kozal@huschblackwell.com
May 20, 2015
CONFIDENTIAL: ATTORNEY-CLIENT COMMUNICATION
VIA E-MAIL
Sarah Fredriksson, CRNA, DNAP
President
Colorado Association of Nurse Anesthetists
149 Kimball Avenue
Golden, Colorado 80401
Re:
Teaching Anesthesia Core Clinical Curriculum to Anesthesiologist Assistant
Students by CRNAs
Dear Ms. Fredriksson:
We are writing to respond to the request by Colorado Association of Nurse Anesthetists
("CoANA") that we provide our opinion as to whether Certified Registered Nurse Anesthetists
("CRNAs"), under the scope of their advanced nursing practice license pertaining to anesthesia
care may, within the scope of that license, legally teach the core clinical curriculum pertaining to
anesthesia care to Anesthesiology Assistant students ("AA students") in Colorado. For the
reasons discussed below, it is our view that under the statutory and regulatory provisions that
govern CRNAs' scope of practice, they may not supervise, delegate functions or teach AA
students in a clinical, as opposed to didactic, setting where AA students would be required to
provide anesthesia care to a patient as part of this instruction. We base our opinion on applicable
Colorado statutory, regulatory and common law, as well as relevant guidance provided by the
State Board of Nursing ("the Board").
I.
State Board of Nursing Guidance
In a November 7, 2011 written response to questions from CoANA regarding
circumstances pertaining to the delegation of anesthesia care to an AA by a CRNA, the Board
made it clear that CRNAs may not delegate their advanced practice functions to an AA. Exhibit
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A. Specifically, in response to these questions regarding the acceptable scope of practice for
CRNAs with respect to interacting with AAs, the Board voted unanimously that there is no
provision within the Colorado Nurse Practice Act, C.R.S. §12-38-101, et seq. ("NPA"), that
authorizes CRNAs to delegate advance practice functions to an AA. Similarly, the Board voted
unanimously that a physician must be present at a handoff where a patient is left within an AA's
care, since a CRNA cannot delegate this function to an AA.
It is axiomatic that such principles would be applicable to AA students and instruction by
CRNAs of that part of the educational program that pertains to the core clinical curriculum
involving anesthesia care. It is not accurate to posit that simply because the NPA does not
explicitly address the "teaching" of AA students, that it is permissible for CRNAs to do so. See
E-470 Public Highway Authority v. Revenig, 140 P.3d 227, 230 (Colo. App. 2006) (holding that
a court "may not read into a statute an exception that its plain language does not suggest,
warrant, or mandate"). Rather, it is the absence of express authorization that is of concern and
here, the Board's written analysis is instructive. The Board's interpretation relies on the finding
that there is no provision within the statute permitting CRNAs to delegate advanced practice
functions to an AA, accordingly they cannot do so. It is therefore just as persuasive that because
there is no provision within the statute permitting CRNAs to delegate, as part of teaching a core
clinical curriculum, to unlicensed AA students in a clinical setting, they cannot do so.
There is no practical distinction between the terms "delegate" and "teach" in the context
of a CRNA providing instruction in a clinical setting to unlicensed personnel. Where a CRNA is
required to be present while an AA student performs a return demonstration of an anesthesia care
task to a patient, and no supervising physician is present, the semantics of the terminology used
to describe the CRNA's interaction with the AA student is inconsequential. The AA student is
taught by means that would include the ability to perform the anesthesia care function. Indeed,
under such an example, the CRNA is delegating to the unlicensed AA student the authority to
perform clinical functions of anesthesia care after having demonstrated or instructed the AA
student in how to do the task. Accordingly, the Board's written response is authoritative and
binding on its licensees with respect to this question when applied to these circumstances.
H.
Colorado Statutes and Regulations
Colorado State Medical Board regulation 3 CCR 713-40, § 3.0 states that an AA may
only administer drugs and controlled substances under the supervision of a physician. There is
no similar statute or regulation that allows a CRNA to supervise an AA in this particular context
or more generally, in a clinical teaching situation or otherwise. As a result, it cannot be
persuasively argued that a CRNA can do so in the absence of express authorization.
Furthermore, 3 CCR 713-40, § 3.0 must be further qualified in that it requires that before any
anesthesia is administered, an individual has to be a licensed AA, and not an unlicensed student
in an AA educational setting.
The NPA, in a broader context, addresses delegation as follows:
Delegated tasks shall be within the area of responsibility of the delegating nurse
and shall not require any delegatee to exercise the judgment required of a nurse.
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C.R.S. § 12-38-132(2). C.R.S. § 12-38-132(1) similarly precludes a nurse from delegating to
another person the ability to select medications if the person is not independently authorized by
law to make the selection. Since administration of anesthesia care requires the judgment of an
advanced practice nurse, there is no authorization under Colorado statutory or regulatory law
which would authorize an unlicensed AA student to administer, for example, an anesthetic.
Accordingly, under the NPA, CRNAs have no discretionary ability to delegate such a task to an
unlicensed individual and requiring CRNAs to do so would force them to act outside of their
acceptable scope of practice.
If an anesthesiologist is outside of the direct presence of the AA student during his or her
return demonstration of a clinical task constituting anesthesia care, even if a CRNA were present,
such an activity would be without statutory or regulatory authorization. Section 2.C.5 of the
State Medical Board rules state that a "supervising physician must provide adequate means for
communication with the [AA] and remain immediately available throughout the anesthesia
service." 3 CCR 713-40, § 2.C.5. The Colorado Medical Board defines "immediately available"
as the physician being "in physical proximity that allows the physician to return to re-establish
direct contact with the patient in order to meet medical needs and address any urgent or emergent
clinical problems." Id. at § 2.C.5.b.
The State Board of Nursing has directly stated that the physician must be present at the
hand-off in its November 7, 2011 written response to CoANA. As a result, a CRNA's presence
while a licensed AA, much less an unlicensed student AA, is administering anesthetic is not an
acceptable substitute for that of the supervising physician's presence. Even more disconcerting
for those who may argue to the contrary is the fact that there is no mention, let alone express
authorization, in the AA licensing statute or regulations for supervision or instruction of an AA
by a CRNA.
III.
Common Law Authority
A case from the Georgia Court of Appeals, which was affirmed by the Supreme Court of
Georgia, contains a parallel analysis on this issue. In Central Anesthesia Associates, P.C., et al.
v. Worthy, et al., 173 Ga. App. 150 (1984), the husband of a woman who suffered brain damage
because of improper administration of anesthesia during a tubal ligation surgery brought a
medical malpractice action against a hospital, the attending surgeon, his assistant, an anesthetist
school, its managing physicians, an employee of the school and the student nurse. The
anesthesia care was provided by the student CRNA nurse, who was a registered professional
nurse and senior student nurse anesthetist enrolled in the hospital's school of anesthesia for
nurses training to become CRNAs. The student was supervised by a physician's assistant ("PA")
specializing in anesthesiology, who was also an employee of a corporation comprised of eight
physicians.
When considering liability, the Court examined a statute which stated that anesthesia care
could lawfully be administered by a CRNA "provided that such anesthesia is administered under
the direction and responsibility of a duly licensed physician with training or experience in
anesthesia." Id. at 152. The Court found that this statute set threshold qualifications which had
to be met before a person would be permitted under the law to provide anesthesia care. Id. at
153. In other words, the statute prohibited anyone not meeting those qualifications from
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performing anesthesia care services. Id. As a result, because the nurse had a duty not to practice
nursing beyond that which the law allowed, the Court granted summary judgment on the
plaintiffs negligence per se claim against her. In doing so, the Court determined that even
though the nurse was assigned by her superiors to administer anesthesia care during the
operation, she was not a CRNA and thus, violated the statute setting forth the minimum
qualifications for providing this anesthesia care. Similarly, summary judgment was granted
against the PA who was employed by the corporation which operated the anesthesia school,
since that PA supervised the unlicensed and therefore, unqualified student nurse.
Also compelling in this case was the finding by the Court that the corporation that
operated the anesthetist school was negligent per se. The corporation which provided anesthesia
services in the hospital and which operated the school that the student nurse was enrolled in
controlled her assignments and those of the physician assistant. Id. at 154. Given this role, the
Court found that as the operator of the school, the corporation had a duty not to assign students
to administer anesthesia care and not to assign a non-physician to supervise her. Id The
physicians who were in charge of the anesthetist school, as well as the hospital which allowed
the anesthetist school to operate on its premises by providing funding and services, were also
found to be negligent per se for failing to prevent a student nurse from administering the
anesthetic without the supervision of a physician. Id.
The facts of Worthy are remarkably similar to the instant situation. Colorado Medical
Board regulation 3 CCR 713-40 sets the threshold qualifications which have to be met prior to an
AA providing anesthesia care. The AA must be licensed and once licensed, the AA must be
supervised by a physician practicing in the field of anesthesia. Accordingly, to require a CRNA
to delegate functions, teach or supervise an unlicensed AA student during the administration of
anesthetic exposes the CRNA, the AA student, and potentially any involved educational
institution or hospital to liability should an injury occur.
IV.
Conclusion
In light of the Board's November 7, 2011 response to CoANA's inquiry and in the
absence of any Colorado statute or regulation giving express authorization, the supervision,
delegation of functions as part of teaching unlicensed AA students the core clinical, as opposed
to didactic, curriculum by CRNAs would, in our view, require them to perform acts outside of
their licensed scope of practice in Colorado.
Sincerely,
Fred Miles
Peggy E. Kozal
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Depattrnent 01. Regulatory AgeTtc*
Division of Registrations
Rosemary McCotli
Director
State Board of Nursing
Kennetha..hilieri
Program. Director
John W. Hickeniooper
Governor
Barbara I. Kelley
Executive
Director.
November 7, 2011
Ccilorado Association of Nurse Anesthetists
Lawrence Shovelton,
CRNA
1.6091 East Loyola. Place
Aurora, CO 80013
Dear
Shoveltcin:
On behalf of the State. Board of Nursing ("Board"), I am responding to your letter of August
31, 2011. In your letter, you requested input from the Board regarding an official opinion on
the issue of delegation of anesthesia care by CRNAs to Anesthesia Assistants.
At its meeting on October 26, 2011, you presented your letter and the -Board considered the
oral comment and discussed the three specific questions that you posed for the Board's
consideration,
The first question is, "Can a CRNA watch over and delegate to an anesthesia assistant?" In
response, the Board voted unanimously that there is no provision within the statute for CRNAs
to delegate.
The second question, "Can a CRNA be relieved for a break by an anesthesia assistant leaving
the patient in the anesthesia assistants care, also known as a handoffr In response, the Board
voted unanimously that there is no ability for the CRNA to delegate and the physician would
need to be present at the handoff.
The Board also considered your last question, "Are CRNAa to complete orders, including pre
op orders, written`by anesthesia assistants?" The'Board of Nursing voted unanimously that
they.have no jtuisdiction to address this question.
The Board appreciates the opportunity to respond to the questions posed.
Sincerely,
FOR THE STATE BOARD'OF NURSING
K.ennetha Julien
Program_Director
State Board of Nursing
1560 Broadway, Suite 1350
Fax
303.894.2821
Denver, Colorado 80202
www,dora.state.co.us
Phone 303.894.2430
711
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