The California Department of Public Health’s (CDPH) September 6, 2024, All Facilities Letter (AFL) reaffirms the independent practice authority of Certified Registered Nurse Anesthetists (CRNAs). Despite this reaffirmation, misinterpretations of nurse anesthesiology scope of practice continue to disrupt anesthesia services in general acute care hospitals throughout California. Various articles have purported to claim that CDPH has imposed limits on CRNA scope of practice even though CDPH does not determine the scope of practice of any advanced practice nurse in the state. The California Board of Registered Nursing (BRN) is the only state agency that may define or interpret the practice of CRNAs.1
California Hospital Surveys Have Misinterpreted Nurse Anesthesiology Scope
There have been five recent CDPH surveys where hospital administrators and providers have reported facing pressure from surveyors to reduce the scope of nurse anesthesiology practice, including at Stanislaus Surgical Hospital, Doctors Medical Center of Modesto, Emmanuel Medical Center, Community Regional Medical Center, and South Coast Global Medical Center.2 This pressure has encompassed everything from (1) demanding that operating surgeons order the type of anesthesia and any changes needed during the surgery; (2) asking physicians to create a list of medications from which CRNAs may order anesthesia and related symptom management medications; (3) requiring physician supervision at a ratio of 1 to 4; and/or (4) imposing the removal of CRNAs from the medical staff and replacement with physician anesthesiologists.3
At two of the hospitals, the CDPH survey team reportedly demanded immediate reduction of nurse anesthesiology scope of practice upon the threat of issuing an “immediate jeopardy,” which carries with it a hefty fine and reputational consequences that most hospital administrators attempt to avoid.4 The recent demand for removal of CRNAs from another hospital resulted in that hospital unnecessarily canceling, delaying, or transferring more than 1,000 surgeries.5 Eyewitnesses have noted that many of these surveys stemmed from unrelated and/or anonymous complaints about a CRNA, which may have been intended to trigger this survey team’s actions, at least one member of which is physician anesthesiologist named Dr. Chante S. Buntin whose CDPH survey team appears to have subjected CRNAs to intimidating questions and discriminatory case reviews.6
Notably, CDPH does not have survey authority over nurse anesthesiology scope of practice. In apparent acknowledgement of BRN’s authority, CDPH’s official surveyor documentation states that CDPH surveyors consulted the BRN for input on scope of practice.7 However, at Stanislaus, CDPH surveyors never spoke with the BRN prior to determining that CRNAs were practicing outside their scope by ordering and administering medications without a DEA registration and by becoming credentialed to perform anesthesia without physician supervision.8
These practices are within the nurse anesthesiology scope and are aimed at increasing patient safety by increasing the number of highly skilled anesthesia providers available to cover surgeries, particularly in rural areas where CRNAs fill 80% of the needed positions.9 But CDPH concluded otherwise and then found, without any cited evidence of patient harm, that the hospital’s failure to comply with scope of practice regulations is “likely to cause serious injury, harm, impairment, or death.”10
The CDPH survey team then accepted a Stanislaus Plan of Correction that included terminating all CRNAs from the medical staff and replacing them with physician anesthesiologists as of January 18, 2024.11 These actions were done without notice or opportunity to be heard.12 Hospital administrators and medical staff leaders summarily changed hospital and medical staff policy in a manner that entirely excluded CRNA input.13 According to the Stanislaus survey reports, CRNAs had actually been absent from the hospital for approximately six months when the final inspection report in July 2024 resulted in the hospital’s termination of Medicare enrollment – it’s therefore incorrect to state that the hospital closed as a result of the care provided by CRNAs.14
California and Federal Laws Do Not Require Physician Supervision
California CRNAs have practiced independently for decades. Starting in the 1980s, the Nursing Practice Act15 within California Business & Professions Code (BPC) 272516 authorized CRNAs to provide anesthesia services ordered by a physician, dentist, or podiatrist, in accordance with community practice and policies of the organized health care system in which the service is provided. A 1988 letter by the California Board of Registered Nursing states that, “performing surgery and performing anesthesia, although collaborative, are separate functions. The surgeon is responsible for performing the surgery and evaluating the patient’s response to the surgical procedure, while the CRNA is responsible for selecting and administering the anesthetic agent and monitoring the patient’s response thereto.”17
The Nursing Practice Act clearly outlines the independent scope of CRNA practice. Article 2, section 2725(b)(2) states: “Direct and indirect patient care services, including, but not limited to, the administration of medications and therapeutic agents, necessary to implement a treatment, disease prevention, or rehabilitative regimen ordered by and within the scope of licensure of a physician, dentist, podiatrist, or clinical psychologist, as defined by Section 1316.5 of the Health and Safety Code.”18 This statutory authorization is universally understood to include the administration of all forms of anesthesia. In fact, the California Attorney General has specifically concluded that this language “provides express authority for a registered nurse to administer an anesthetic.”19
Although California CRNAs do not have the authority to write prescriptions, CRNAs do have the authority to select and order the anesthetic and any pre- and post-anesthetic medications that ensure the safety and comfort of the patient.2 Ordering anesthesia related medications during the course of surgery and in the recovery room is not akin to writing a prescription. Federally, the U.S. Drug Enforcement Administration (DEA) has exempted CRNAs from registering with the DEA in all 50 states since the early 1980s in accordance with the Code of Federal Regulations Title 21, Section 1301.22 when engaging in usual and customary clinical anesthesia practice.20
In 2008, California’s “opt out” of the physician supervision requirement for CRNAs21 authorized acute care hospitals, critical access hospitals, and ambulatory surgery centers to be exempt from Medicare regulations requiring physician supervision, which enabled hospitals and surgery centers to utilize CRNAs within their full scope of practice while remaining eligible for Medicare reimbursements. Meanwhile, California’s Medi-Cal program opted out of CRNA supervision two decades before in 1988.22 The fact that, in 2024, anyone is raising questions about the ability of California CRNAs to perform anesthesia without supervision speaks more to their personal motivations and opinions, as there is no valid legal basis.
An “Order” for Anesthesia Does Not Imply Supervision
In California Society of Anesthesiologists v. Brown, physician trade groups sued the Governor over California’s opt out of physician supervision and argued that the word “order” necessarily implied supervision.23 The California Court of Appeal disagreed, holding that CRNAs do not require physician supervision to administer anesthesia in California.24 A physician’s “order” is defined as authorization for anesthesia care, not as a mandate for “supervision.”25 The ruling affirms that once a physician orders anesthesia as part of a treatment plan, CRNAs may independently provide anesthesia services, including preoperative, intraoperative, and postoperative care.26 The Court also found “on independent review that the Governor‘s attestation was, in fact, accurate because it was consistent with the language and structure of the controlling statute, the legislative history, other extrinsic evidence, and prior cases and [Attorney General] opinions.”27
Several regulatory barriers do exist, such as a regulation requiring a physician oversee the anesthesia department of an acute care hospital.28 California regulation also limits medical staff membership to physicians, dentists, and psychiatrists, even though state law does not.29 These regulations apply to CRNAs who may be the only anesthesia provider credentialed at a rural hospital. These structural barriers place an undue burden on hospital medical staffs and in some cases are even inconsistent with California law, including a state statute which expressly granted Nurse Practitioners the right to join the medical staff as of January 1, 2023.30
When Practicing Independently, Nurse Anesthesiologists Are Reimbursed the Same as Physician Anesthesiologists
According to the Federal Provider Non-Discrimination provision, healthcare payors cannot discriminate on the basis of professional licensure status with respect to participation under plan coverage or with respect to provider reimbursement. Provider Non-Discrimination means that CRNAs may not be paid less on the basis of licensure status. CRNAs also cannot be denied access to insurance contracts on the basis of licensure status. This Federal Law is broadly applicable to health insurance, health plans, ERISA Plans, Medicare Advantage, and Medicare+Choice.31 Recently, Anthem Blue Cross Blue Shield published an updated Professional Anesthesia Services Reimbursement Policy announcing that as of November 1, 2024, it will cut CRNA reimbursements by 15% for independent CRNA services in at least 14 states. Last year, CIGNA announced a similar 15% cut for CRNAs. Both policies have been challenged by a lawsuit from the American Association of Nurse Anesthesiology.32
Nurse Anesthesiologists Are Trained Alongside Physician Anesthesiologists
CRNAs are extensively educated advanced practice nurse specialists. They are required to complete six to seven years of education in a nationally-accredited program, thousands of hours of clinical work, and a minimum of 650 anesthetics before they qualify to sit for their national certification examination.33 Only after passing their board examination are CRNAs eligible to become licensed anesthesia providers in California.34 In California, all CRNAs will graduate with a doctoral degree by the year 2025.35 In many nurse anesthesia programs, didactic and clinical training of student nurse anesthesia residents takes place side by side with physician anesthesia residents.36 Licensed CRNAs are liable for their own practice, just like licensed physicians.37
Conclusion
For decades, CRNAs have provided safe and effective anesthesia care without physician supervision. For more information on the legal frameworks governing CRNA practice, contact the California Board of Registered Nursing.
1 California Business & Professions Code § 2725(e), available at
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC§ionNum=2725 (last accessed September 30, 2024).
2 Based on reports made to the California Society of Anesthesiology.
3 June 18, 2024 Letter from Assemblymembers Heath Flora, Juan Alanis, and Alvarado Gill to Dr. Mark Ghaly, as Secretary for the California Health and Human Services Agency, with a copy to Tomas J. Aragon, MD, DrPH as Director of the California Department of Public Health et al. (“Dr. Ghaly Letter”). See also January 18, 2024 CDPH Survey Report and Plan of Correction for Stanislaus Surgical Hospital, as reflected on CMS Form 2567, available upon Public Records Act request (“PRA Response”).
4 Dr. Ghaly Letter. See also California Health & Safety Code § 1280.3 (noting fines for immediate jeopardy range from $75,00 up to $125,000), available at https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-1280-3.html (last accessed September 30, 2024).
5 Dr. Ghally Letter.
6 Dr. Ghally Letter.
7 PRA Response, as stated in the February 5, 2024 Statement of Deficiencies.
8 Id. The author independently confirmed this fact directly with the Board of Registered Nursing on or about September 20, 2024.
9 August 7, 2024, Francesca Matthews, “5 Things to Know About the Anesthesia Shortage” available at
https://www.beckersasc.com/anesthesia/5-things-to-know-about-the-anesthesia-shortage.html#:~:text=The%20shortage%20of%20anesthesia%20providers,ASCs%20and%20hospitals%20are%20affected (last accessed October 1, 2024). See also California Society of Anesthesiologists v. Brown, 204 Cal. App. 4th 390, 396-97 (Mar. 5, 2012) (cert. denied June 13,2012), available at
https://www.westlaw.com/Document/I8e0342aa6ee511e196ddf76f9be2cc49/View/FullText.html?transitionType=Default&contextData(sc.Default)& VR=3.0&RS=cblt1.0 (last accessed September 30, 2024).
10 PRA Response, as noted in the June 12, 2024 Plan of Correction.
11 Id.
12 February 2, 2024 Letter from Wesley Kinzie, MD, Chief of Staff and Board Member, Stanislaus Surgical Hospital to “Active CRNA Staff Stanislaus Surgical Hospital” (noting that “Stanislaus Surgical Hospital has made the difficult decision to suspend the practice of CRNAs at the facility. . . ”). See also January 19, 2024 Letter from Stanislaus CEO Kristine Kassahn on
behalf of Chief of Staff Dr. Wesley Kinzie, M.D. (falsely claiming that “CRNA[s] do not have the authority to place orders according to the Board of Registered Nursing.”).
13 Id.
14 PRA Response, as noted in the July 12, 2024 Statement of Deficiencies.
15 California Business & Professions Code §§ 2700 et seq. (the “Nursing Practice Act”), available at https://www.rn.ca.gov/practice/npa.shtml (last accessed September 30, 2024).
16 California Business & Professions Code § 2725, available at
https://www.rn.ca.gov/pdfs/regulations/npr-i-15.pdf (last accessed September 30, 2024).
17 October 11, 1988 Letter from the Board of Registered Nursing to Interested Persons entitled “Practice of the CRNA” available at https://canainc.org/compendium/pdfs/A%204.4%20BRN%2011.11.1988.pdf (last accessed September 30, 2024).
18 California Business & Professions Code § 2725(b)(2), available at
https://www.rn.ca.gov/pdfs/regulations/npr-i-15.pdf (last accessed September 30, 2024).
19 April 5, 1984 Opinion of John K. Van De Kamp, Attorney General, and Jack R. Winkler, Assistant Attorney General, Office of the Attorney General of the State of California, 67 Ops. Cal. Atty. Gen. 122 (No. 83-1007), available at https://oag.ca.gov/system/files/opinions/pdfs/83-1007.pdf (last accessed September 30, 2024).
20 Code of Federal Regulations, Title 21, Section 1301.22. https://www.govinfo.gov/content/pkg/CFR-2023-title21-vol9/xml/CFR-2023-title21-vol9-part1301.xml
21 Letter from Governor Schwarzenegger to CMS opting California out of the Medicare supervision requirement for anesthesia services provided by a CRNA. https://canainc.org/compendium/pdfs/C%201%20CA%20opt%20out%20letter.pdf (June 10, 2009).
22 California Code of Regulations. Title 22. Section 51326. Nurse Anesthetist Services.
https://govt.westlaw.com/calregs/Document/I5C2A63C35B6111EC9451000D3A7C4BC3view Type=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1
23 California Society of Anesthesiologists v. Brown, 204 Cal. App. 4th at 403-04.
24 Id.
25 Id.
26 Id. at 403.
27 Id. at 405-08.
28 42 C.F.R. § 482.52.
29 See California Code of Regulations, Title 22, §§ 70529(b), 70701(a)(1)(e), and 70703(a)(1) but see California Business & Professions Code §§ 2282(b) and 2283(a).
30 California Business & Professions Code § 2837.104(a)(2), available at
https://codes.findlaw.com/ca/business-and-professions-code/bpc-sect-2837-104/ (last accessed October 23, 2024).
31 See Public Health Service Act § 2706(a); Employee Retiree Income Security Act (ERISA) Act § 715(a)(1); Internal Revenue Code § 9815(a)(1); Social Security Act § 1852(b)(2).
32 American Association of Nurse Anesthesiology v. Becerra, Case No. 1:24-cv-01657-PAB, available at https://www.courthousenews.com/wpcontent/uploads/2024/09/anesthesia-nurse-hhs-lawsuit.pdf (last accessed October 23, 2024).
33 Counsel on Accreditation, “Guidelines for Counting Clinical Experiences” (updated Jan. 2021), available at https://www.coacrna.org/wpcontent/uploads/2021/03/Guidelines-for-Counting-Clinical-Experiences-Jan-2021.pdf
(last accessed October 1, 2024).
34 California Business & Professions Code §§ 2825 et seq. (the “Nurse Anesthetists Act”), available at https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=2.&title=&part=&chapter=6.&article=7 (last accessed October 1, 2024).
35 Counsel on Accreditation, “Standards for Accreditation of Nurse Anesthesia Educational Programs” (updated May 2022) available at https://www.coacrna.org/wp-content/uploads/2022/06/2004-Standards-for-Accreditation-of-Nurse-Anesthesia-Educational-Programs-revised-May-2022.pdf (last accessed October 1, 2024).
36 Based on reports made to the California Society of Anesthesiology.
37 California Business & Professions Code § 2828 (“Notwithstanding any other provision of law, a nurse anesthetist shall be responsible for his or her own professional conduct and may be held liable for those professional acts.”), available at
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BPC&division=2.&atitle=&part=&chapter=6.&article=7 (last accessed September 30, 2024).
