NURSES PROVIDING ANEsmESIA NOT A "LAUGHING" 
MATTER: WHY INDIANA SHOULD NOT OPT OUT OF 

FEDERAL PHYSICIAN SUPERVISION OF CERTIFIED NURSE 
ANESTHETISTS REQUIREMENTS 

Kyle K. Fairchild* 

I. INTRODUCTION ...........••..••••......•.....•••.....••.•..•••••.•..•••.....••..••..•.•..••......•.. 282 
A. The Issue ................................................................................. 282 
B. Roadmap ................................................................................. 284 

II. HISTORY AND BACKGROUND OF CERTIFffiD REGISTERED NURSE 
ANESTHETISTS •....••••..•••....••••.••.•.••.•••••••••...••••...••....••••••.•.••••••••••.•.••.•••••.•••• 285 

A. History and Development of the Nurse Anesthetist Practice .. 285 
B. Educational/Certification Requirements and Statutory 
Recognition ................................................................................... 286 
C. Reimbursement ofCRNA Service ........................................... 289 

ill. ANALYSIS OF RECENT NURSE ANESTHETIST STUDIES ....................... 290 
A. Anesthesiologist Direction and Patient Outcome ................... 290 
B. Cost Effectiveness Analysis of Anesthesia Providers .............. 292 
C. No Harm Found when Nurse Anesthetists Work Without 
Supervision by Physicians ............................................................ 296 

N. OPT-OUT STATE REQUIREMENTS, STATUTES, AND REGULATIONS 
VERSUS CURRENT SIMILAR INDIANA LAW ............................................... 298 

A. Opt-Out Requirements ............................................................ 299 
B. Challenged State Regulations or Opt-Out Decisions ............. 300 

1. State Law Challenges .......................................................... 300 
C. Similarly Situated Opt-Out States Contrasted to Indiana ....... 306 

1. Rural Setting and Hospital Analysis ................................... 306 
2. Statutory or Code Regulation Comparison of Similarly 
Situated States .......................................................................... 307 

V. PROBLEMS ARISING IF INDIANA WERE TO OPT OUT OF PHYSICIAN 
SUPERVISION ............................................................................................. 308 
VI. SOLUTIONS AND CONCLUSION: KEEP THE STATUS QUO REGARDING 
SUPERVISION IN INDIANA .......................................................................... 309 

* J.D. Candidate, 2012, Indiana University Robert H. McKinney School of Law; B.S.B.A., 
2008, Xavier University. 



282 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

I. INTRODUCTION 

Nearly a decade ago, Dr. Barry Gleimer, an orthopedic surgeon in 
New Jersey, performed arthroscopic knee surgery on a twenty-eight year 
old man.1 Arthroscopy is a common surgical procedure where incisions are 
made, and a pencil-sized camera is inserted through those incisions after 
utilizing local, regional, or general anesthesia? Shortly after Dr. Gleimer 
performed the knee arthroscopy, the presiding nurse anesthetist-who at 
first failed to notice the patient turning blue from lack of oxygen-struggled 
to insert a breathing tube and quickly sought help from a nearby anesthesi­
ologist.3 Due to the nurse anesthetist's inability to treat the patient during 
his desperate time, Dr. Gleimer's patient currently suffers from short-term 
memory loss.4 The resulting harm in the described procedure is conspicu­
ous; however, the medical knowledge disparity between certified registered 
nurse anesthetists (CRNAs) and anesthesiologists, in cases such as Dr. 
Gleimer's, is far more noteworthy than the memory loss itself. 

A. The/ssue 

Anesthesiologists and nurse anesthetists commonly work together in 
operating rooms to sedate patients and ease pain, but cooperation between 
the two groups ends once outside the hospital doors.5 For years, these two 
interconnected medical professions have fought a bitter political battle over 
who should be sedating patients, under whose supervision, and for what 
compensation. 6 The battle intensified when, just before his term ended in 
2001, President Bill Clinton, whose mother coincidently served as a nurse 
anesthetist for thirty-five years, wanted to remove supervision require­
ments. 7 As a result, President Clinton approved a government rule giving 
more autonomy to nurse anesthetists.8 President Clinton's approval was in 
response to a 1997 proposal by the Health Care Financing Administration 

1. Suzanne Sataline, Doctors Oppose a Nursing Push: New Jersey May Ease Seda­
tion Oversight, WALL ST. J. (Oct. 23, 2010), http://online.wsj.com/article/SB10001424052 
7023043541 04575568093578513032.html. 

2. Knee Arthroscopy, AM. ACADEMY OF ORTHOPEDIC SURGEONS, AAOS.COM, http:!/ 
orthoinfo.aaos.org/topic.cfm?topic=a00299 (last updated Mar. 201 0). 

3. Sataline, supra note 1. 
4. Sataline, supra note 1. 
5. Personal Business; In This Doctor-vs.-Nurse Debate, Long, Deep Breaths, N.Y. 

TIMES (Oct. 8, 2000), http://www.nytimes.com/2000/l0/08/business/personal-business-in­
this-doctor-vs-nurse-debate-long-deep-breaths.h1ml. 

6. Id.; Rhonda Rowland, U.S. Ruling Expected in Bitter Anesthesia Battle, CNN.COM 
(May 16, 2001 ), http://articles.cnn.com/2001-05-16/healtb/anesthesia.debate _l_ nurse­
anesthetists-physician-anesthesiologists-patient-safety? _s=PM:HEAL TH. 

7. Todd S. Purdum, Virginia Clinton Kelley, 70, President's Mother, Is Dead, N.Y. 
TIMES, Jan. 7, 1994, at A22; Amy Goldstein, HHS Delays Rule on Anesthesia Oversight; 
Clinton Measure Gave Nurses Autonomy, WASH. PosT, May 18, 2001, at A29. 

8. Purdum, supra note 7; Goldstein. supra note 7. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTIIETISTS 283 

requesting that nurses be able to work by themselves, without doctor super­
vision, if allowed by state-specific law.9 

Upon Clinton's departure from office, the Bush administration de­
layed the Clinton-approved nurse autonomy rule and planned to write a new 
rule reverting back to the requirement that nurse anesthetists could only 
administer anesthesia when supervised by a doctor.10 The possible rever­
sion sparked lobbying before Congress from former Senate majority leader, 
Robert J. Dole, and former Democratic representative, Tom Downey, on 
behalf of the anesthesiologists, while former House Speaker-designate, Bob 
Livingston, lobbied for the nurse-anesthetists.11 Ultimately, the anesthesi­
ologists' representatives convinced President Bush of the possible safety 
hazards and risks involved with nurses independently administering anes­
thesia.12 However, both Tommy G. Thompson, who was the Secretary of 
Health and Human Services, and President George W. Bush were strong 
advocates for state autonomy; therefore, the Bush administration crafted a 
supervision rule giving governors the option to avoid the supervision re­
quirement.13 

The Centers for Medicare and Medicaid Services' (CMS) final rule 
that was published in the Federal Register in November 2001 now allows 
state governors to opt out of reimbursement for CRNA activity, permitting 
CRNAs to practice without supervision if the opt-out is consistent with state 
law.14 Thus, under the CMS amended opt-out rule, patients, like Dr. Glei­
mer' s arthroscopic knee patient, may not have physician supervised CRNAs 
in hospitals, ambulatory surgical centers, or critical access hospitals/5 

which could lead to more severe injuries than just short-term memory loss 
due to the nurse and doctor knowledge disparity. 

Interestingly, recent studies have challenged the knowledge gap be­
tween anesthesiologists and nurse anesthetists by concluding that there is 
not a significant difference in the quality of care administered by CRNAs as 
compared to anesthesiologists.16 After evaluating six years of Medicare 
data, two analysts at the Research Triangle Institute, an independent, non­
profit research institute, recently recommended that nurse anesthetists 

9. Goldstein, supra note 7. 
10. Goldstein, supra note 7; Rowland, supra note 6. 
11. Goldstein, supra note 7. 
12. Interview with Barry Glazer, Anesthesiologist, St. Francis Hospital & Health Cen­

ters, in Indianapolis, Ind. (Jan. 28, 2011 ). 
13. Goldstein, supra note 7. 
14. Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthe­

sia Services, 66 Fed. Reg. 56,762, 56,763 (Nov. 13, 2001) (to be codified at 42 C.F.R. pts. 
416, 482, 485). 

15. Fact Sheet Concerning State Opt-Outs and November 13, 2001 CMS Rule, AM. 
AsS'N NURSE ANESTIIETISTS, http://www.aana.com/advocacy/stategovemmentaffairs/Pages/ 
Fact-Sheet-Conceming-State-Opt-Outs.aspx (last updated Sept. 201 0). 

16. Editorial, Who Should Provide Anesthesia Care?, N.Y. TIMEs, Sept. 7, 2010, at 
A22. 



284 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

should be able to administer anesthesia without any surgeon or anesthesiol­
ogist supervision.17 Jerry Cromwell, the study's co-author and health eco­
nomics fellow at' the Research Triangle Institute, said, "[t]his study shows 
that patient safety is not compromised by the opt-out policy. Using nurse 
anesthetists more broadly could save on health care costs because they typi­
cally earn less than anesthesiologists."18 The study's recommendation is 
based on a lack of evidence to confirm that opti:J;lf out of CRNA supervision 
has increased inpatient deaths or complications.1 

Currently, sixteen states, including five of interest in this Note (Cali­
fornia, Colorado, Iowa, Washington, and Wisconsin), have elected to opt 
out of reimbursement from CMS for nurse anesthetist activity as of October 
2010?0 As a result of the two most recent national studies dealing with 
CRNA safety and cost-effectiveness, state governors now have unequivocal 
evidence to persuade state medical and nursing boards to support a move to 
accept unsupervised nurses.21 Nevertheless, under the 2001 CMS amend­
ment, governors still need to discern and balance the quality of care given to 
anesthesia patients, cost-effectiveness of not having physician supervision, 
and patient access in rural settings.22 Even if these factors are appraised, 
and opting out decreases state budgets, which is presently necessary in 
many states, the preemptive steps may not be enough to relieve patients of 
the risk of death or grave harin when a nurse anesthetist's treatment ability 
is challenged like that of the nurse in the aforementioned anecdote. 

B. Roadmap 

This Note discusses the CMS final rule allowing for unsupervised 
nurse anesthetists to administer aneSthesia if their state of practice has opted 
out of Medicare reimbursement for such service. In order to facilitate a bet­
ter understanding of the nurse aneSthetist practice, Section ll explains the 
history and development of the certified registered nurse anesthetist prac­
tice, sets out the educational requirements necessary for certification as a 

17. Brian Dulisse & Jerry Cromwell, No Harm Found When Nurse Anesthetists Work 
Without Supervision By Physicians, 28 HEALTH AFF. 1469, 1469 (2010}; Press Release, RTI 
International, Nurse Anesthetists Working Without Doctor Supervision Provide Safe Care 
(Aug. 3, 2010}, available at http://www.rti.orglpage.cfm?objectid=l9731DCD-C437-
DCAA-5DE995F6C1D7E6FC. 

18. RTI International, supra note 17. 
19. Dulisse & Cromwell, supra note 17. 
20. AM. AsS'N NURSE ANESTHETISTS, supra note 15. 
21. Press Release, American Association of Nurse Anesthetists, Colorado Becomes 

16th State to Opt Out of Physician Supervision Requirement for Nurse Anesthetist (Sept. 28, 
201 0}, available at http:/ /www.aana.com/newsandjournai/News/Pages/09281 O-Colorado­
becomes-16th-State-to-Opt-Out.aspx. 

22. See Press Release, American Association of Nurse Anesthetist, Iowa Becomes 
First State to Opt Out of Federal Anesthesia Requirement (Dec. 13, 2001), available at 
http://www.aana.com/news.aspx?id=714. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTIIETISTS 285 

CRNA, examines how nurse anesthetists are dealt with in Indiana, and pro­
vides CRNA reimbursement basics. Section m analyzes the major, recent 
studies proposing eliminating supervision· of nurse anesthetists based on 
cost effectiveness and quality of care, while also providing the responses 
given by the American Society of Anesthesiologists to these. controversial 
studies. Section IV introduces the requirements for a state to opt out of 
nurse anesthetist supervision and compares opt-out states' .. administrative 
code or statutes dealing with anesthesia regulation to Indiana's correspond­
ing statutes. In particular, this section focuses on opt-out states' decisions 
that have been legally challenged for being inconsistent with state law, al­
lowing for a prediction of the consistency of Indiana regulations if they 
were challenged. Also, in addition to looking at state law consistency is­
sues, Section IV analogizes a CRNA scope of practice challenge to further 
highlight the disparity in anesthesiologist and nurse anesthetist training. 
Finally, Sections V and VI lay out problems that would arise if Indiana opt­
ed out of reimbursement and concludes Indiana should keep the status quo 
for nurse anesthetist supervision, or in the alternative should ramp up 
recognition or certification requirements of certified registered nurse anes­
thetists. 

II. HISTORY AND BACKGROUND OF CERTIFIED REGISTERED NURSE 
ANESTHETISTS 

In order to determine whether Indiana should opt out of nurse anesthe­
tist supervision, an understanding of the development of the profession it­
self is essential. This section explains the practice of CRNAs in general, 
how the practice of nurse anesthetists developed, what educational and ex­
perience requirements are necessary to become certified as a nurse anesthe­
tist, different methods of recognizing the nurse anesthetist practice, and, 
finally, offers rudimentary background on CRNA reimbursement. 

A. History and Development of the Nurse Anesthetist Practice 

Nurses, not anesthesiologists, were the first professional group to ad­
minister anesthesia in the United States, which led to the recogl!ition in the 
late 1800s of the first clinical nurse specialty, nurse anesthesia?3 For over 
150 years, beginning with providing anesthesia to wounded soldiers during 
the Civil War, nurses have been administering anesthesia in the United 
States?4 In addition to caring for soldiers, the development of the nurse 

23. AM. Ass'N NURSE ANEsTIIETISTS, NuRsE ANEsTHETIST: ADVANCING PATIENT 
SAFETY AND ExCELLENCE IN ANEsTHESIA (2010), available at http://www.aana.com/ 
aboutus/Documentsllegalissuesnap.pdf (citing the History of Nurse Anesthesia Practice sec­
tion of the compilation). 

24. Certified Registered Nurse Anesthetists (CRNA.s) at a Glance, AM. Ass'N NURSE 



286 INDIANA HEAL Til LAW REVIEW [Vol. 9:1 

anesthetist occupation was also a response to surgeons' search for a solution 
to the high death rate during anesthesia in the late 1800s, as medical resi­
dents wanted to observe surgery, not give undivided attention to the admin-
istration of anesthesia?5 · 

By 1908, Cleveland-based surgeon George Crile asked a nurse, Aga­
tha Hodgins, to become his anesthetist. 26 Hodgins became an expert at ad­
ministering anesthesia and began informally teaching others the anesthesia 
process, including English and French nurses who provided care to Allied 
Forces during World War 1.27 Upon Hodgins's return from the war, she 
established the Lakeside Hospital School of Anesthesia in Cleveland, Ohio, 
a center that sent graduates across the country to provide nurse anesthesia 
care.28 Soon thereafter, in 1931, Hodgins brought her alumnae to Cleve­
land and founded the National Association of Nurse Anesthetists, which in 
1939 became the American Association ofNurse Anesthetists (AANA) and 
remains as such today. 29 At present, greater than ninety percent' of the na­
tion's nurse anesthetists0 of which over forty-one percent are men, are 
members of the AANA. 3 

Later, in 1956, the official credential of certified registered nurse anes­
thetist was bom?1 Beirig recognized as one of the first specialties within 
nursing, CRNAs acted with a high level of independence, accountability 
and responsibility.32 According to the AANA, over 42,000 CRNAs across 
the country provide about thirty-two million anesthetics to patients each 
year.33 

B. Educational/Certification ·Requirements and Statutory Recognition 

In order to become a CRNA and be able to provide anesthetics, special 
education and experience reqUirements must be met. 34 These requirements 
include:35 

1) Earning a Bachelor of Science in Nursing or other appropriate hac-

ANES1HETISTS, http://www.aana.com/ataglance.aspx (last visited Jan. 7, 2012). 
25. AM. Ass 'N NURSE ANESTHETISTS, supra note 23 (citing the History of Nurse An­

esthesia Practice section of the compilation). 
26. Id (citing the History of Nurse Anesthesia Practice section of the compilation). 
27. See The History of Nurse Anesthetists, AM. Ass'N NURSE ANES1HETisTS, 

http://www.anesthesiapatientsafety.com/na_glancelhistory.asp (last visited Jan. 7, 2011 ). 
28. AM. Ass'N NURSE ANESTHETISTS, supra note 23 (citing the History of Nurse An-

esthesia Practice section of the compilation). 
29. Id (citing the History ofNurse Anesthesia Practice section of the compilation). 
30. AM. Ass'N NURSE ANESTHETISTS, supra note 24. 
31. Id. 
32. See Qualifications and Capabilities of the Certified Nurse Anesthetist, AM. Ass'N 

NURSE ANEsTHETISTS, http:/lwww.aana.com/ceandeducationlbecomeacma/Pages/ Qualifica­
tions-and-Capabilities-of-the-Certified-Registered-Nurse-Anesthetist-.aspx (last visited Jan. 
8, 2012). 

33. Id 
34. Id 
35. AM. Ass'NNURSB ANESTHETISTS, supra note 24. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 287 

calaureate degree; 
2) Holding a current license as a registered nurse; 
3) Serving at least one year of experience as a registered nurse in an 

acute care setting or facility; 
4) Graduating with at least a master's degree from a Council on Ac­

creditation of Nurse Anesthesia Educational Programs accredited nurse an­
esthesia educational program;36 

5) Passing the national certification examination following graduation; 
and 

6) Recertifying on a biennial basis, which requires a current nursing 
license, forty hours of continuing education, certification that the nurse has 
been engaged in anesthesia practice for the previous two years, and verifica­
tion of no other problems that could adversely affect their practice of anes­
thesia.37 

Although these requirements are virtually standard nationwide, states 
may have different regulations or certifications that alter or eliminate such 
obligations.38 For example, Indiana and Michigan are the only two states 
that claim nurse anesthetists do not require additional certification in order 
to practice.39 In Indiana, a CRNA "is properly certified by successfully 
completing the certification examination administered by the Council on 
Certification of Nurse Anesthetists or its predecessor."40 The Indiana As­
sociation of Nurse Anesthetists interprets this certification provision as 
simply a definition, not a requirement to be additionally certified after pass­
ing the national examination by the Council on Certification of Nurse Anes­
thetists or other nationally recognized certifying body, as is required in all 
other states if a nurse wants to practice as a CRNA.41 

Indiana nurse anesthetists are also distinct because "Indiana does not 
specify a specific method or process by which it authorizes nurse anesthe­
tists to practice,"42 whereas CRNAs are a type of"advanced practice nurse" 
or "advanced registered nurse practitioner" in the majority of states in this 
country.43 Under Indiana's Advance Practice Nurse Act, which deals with 
nurses obtaining additional skills through a specialized program to provide 
patient care in collaboration with the health care team, only nurse practi-

36. AM. Ass'N NURSE ANESTIIETISTS, supra note 32. 
37. Id. 
38. See generally Requirements, AM. Ass'N NURSE ANEsTHETISTS, http://www. aa-

na.com/ceandeducationlbecomeacmaiPages/Requirements.aspx (last visited Jan. 8, 20 12). 
39. Id. 
40. IND. CODE§ 25-23-1-1.4 (2011 ). 
41. AM. Ass'N NURSE .ANEsTIIETISTS, supra note 38. 
42. AM. Ass'N NURSE ANESTHETISTS, STATIJTORY/REGULATORY NURSE ANESTHETIST 

REcOGNITION, available at http://www.aana.com/advocacy/stategovemmentaffairs 
/Documents/recognition. pdf. 

43. Seeid. 



288 INDIANA HEALrn LAW REVIEW [Vol. 9:1 

tioners, nurse midwives, and clinical nurse specialists are mentioned.44 Be­
cause of their exclusion, nurse anesthetists believed the stricter collabora­
tion requirements required of advance practice nurses would not apply to 
the~ which would give them more autonomy to practice without supervi­
sion. 5 However, under the Indiana Code, a CRNA may only administer 
anesthesia "[i]f the certified registered nurse anesthetist acts under the di­
rection of and in the immediate presence of a physician.'.46 Therefore, even 
though Indiana has not statutorily established an advanced practice nurse 
label akin to most states, the scope of the nurse anesthetist practice in Indi­
ana is still collaborati,ve due to the supervision requirement. 

Although any type of physician may collaborate with nurse anesthe­
tists while the nurse sedates patients, much of the time CRNAs and anesthe­
siologists work closely together in operating rooms to administer 
anesthesia.47 The American Society of Anesthesiologists (ASA) ''believes 
that nurse anesthetists are qualified to perform some, but not all, of these 
services [that an anesthesiologist can perform], and onr under the supervi­
sion of a physician, preferably an anesthesiologist.'.4 This sentiment is 
often rooted in the differing educational and training requirements of the 
two disciplines, with anesthesiologists believing their profession is prepared 
to make sudden medical judgments that nurse anesthetists never learn in 
their curriculum.49 .While a nurse anesthetist must gain a master's degree 
that usually takes two to three years (in addition to four years of nursing 
undergraduate work), anesthesiologists must complete twelve years of for-
mal schooling, including:50 · 

. four years of science-intensive pre-medical under­
graduate education; four years of medical school in 
which the individual gains knowledge of the funda­
mental science ofthe human condition (biochemistry, 
biophysics,· anatomy, pharmacology, physiology, and 
pathology) and receives extensive clinical instruction 
and experience in medical diagnosis and therapy; and 
four years of residency training that includes one year 

44. 848 IND. ADMIN. CODE 4-2-l (2011); 848 IND. ADMIN. CoDE 3-3-1 (2011); 848 
IND. ADMIN. CODE4-l-5 (2011). 

45; Interview with Barry Glazer, Anesthesiologist, St. Francis Hospital & Health Cen-
ters, in Indianapolis, Ind. (Jan. 28, 2011). 

46. IND. CODE§ 25-23-1-30 (2011). 
47. Personal Business, supra note 5; see RTI International, supra note 17. 
48. AM. Soc'Y ANESTIIESIOLOOISTS, THE SCOPE OF PRACTICE OF NURSE ANESTHETISTS 

1 (2004), available at http://www.asahq.org/For-Members/Advocacy/-/media/ 
For%20Members/Advocacy/Office%20ofYo20Govemmento/o20and%20Legal%20Affairsl 
nurseanesscope.ashx. 

49. Seeid. 
50. See AM. Ass'N NURSE ANESTHETISTS, supra note 32; AM. Soc'v 

ANEsTIIESIOLOOISTS, supra note 48, at 2. 



2012) PHYSICIAN SUPERVISION OF CERTIFffiD NURSE ANEsTHETISTS 

of clinical medicine, two years of clinical anesthesiol- . 
ogy and one year of concentrated study and experi­
ence in connection with the most serious 
complications. 51 

289 

It is clear that educational requirements for anesthesiologists and nurse 
anesthetists differ, which is one reason why the "ASA opposes the inde­
pendent practice of nurse anesthetists and views legislation and regulations 
designed to grant independent practice authority . . . as efforts to confer a 
medical degree by political means rather than by educational means.',s2 

Regardless of the ASA's contradicting view on nurse anesthetists' inde­
pendence, state governors are given the authority to "confer" more power to 
nurse anesthetists, despite educational differences, based on the November 
2001 CMS rule. 53 

C. Reimbursement ofCKNA Service 

Government programs, along with public and private health· plans4 
provide reimbursement to CRNAs for performing anesthesia to patients.5 

Medicare, a health plan for senior citizens and individuals with certain disa­
bilities, is the largest program for reimbursement directly to CRNAs.55 

Medicare uses a formula to determine reimbursement amounts: the sum of 
base units (which describe the complexity of the anesthesia procedure) and 
time units (where fifteen minutes equals one unit) multiplied by a conver­
sion factor (in dollars).56 In addition to CRNA reimbursement, anesthesiol­
ogists can be paid under Medicare for directin' administration of 
anesthesia, but only when certain conditions are met. 5 Under the Tax Eq­
uity and Fiscal Responsibility Act of 1982 (TEFRA), an anesthesiologist 
must carry out the following conditions in each case in order to be reim-
bursed under a claim for directing anesthesia:58 . 

1) Performance of a pre-anesthetic examination and evaluation; 59 

2) Preparation of an anesthesia plan;60 

51. AM. SOC'Y ANESTHESIOLOGISTS, supra note 48, at 2. 
52. /d. at7. 
53. See American Association ofNurse Anesthetists, supra note 21; Hospital Condi­

tions of Participation: Anesthesia Services, 66 Fed. Reg. 56,762, 56,763 (Nov. 13, 2001) (to 
be codified at 42 C.F.R. pts. 416,482, 485) (citing the governor's ability to exercise the ex­
emption so physician supervision is not required). 

54. AM. Ass'NNURSBANESTHETISTS, supra note 23 (citing Reimbursement ofCRNA 
Services section ofthe compilation). 

55. Id (citing Reimbursement ofCRNA Services section of the compilation). 
56. Id (citing Reimbursement ofCRNA Services section of the compilation). 
57. /d (citing Reimbursement ofCRNA Services section of the compilation). 
58. AM. Soc'y ANESTHESIOLOGISTS, supranote48, at9-10. 
59. Id at9. 
60. /d. 



290 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

3) Personal participation in the most demanding parts in the anesthesia 
1 . 1 . du . d 61 p an, most Important y m ction an emergence; 

4) Assurance that a qualified anesthetist performed any part of the an­
esthesia plan not performed by himself or herself;62 

5) Frequent monitoring of anesthesia administration; 63 

6) Physical presence in case of emergency or need for immediate di­
agnosis;64 and 

7) Provide post-anesthesia care. 65 

Combining the reimbmsement of nurse anesthetists and the conditions 
for anesthesiologist payment, Medicare Part B reimburses in different 
ways.66 For "non-medically directed CRNA services," when an anesthesi­
ologist is not involved enough in a case to justifY payment for medical di­
rection, CRNAs are reimbursed one hundred percent of the Medicare fees 
according to the formula outlined above.67 When a physician fulfills the 
seven conditions under TEFRA, these so-called "medically directed CRNA 
services" are reimbursed according to the same Medicare formula, with fif­
ty percent of the fee going to the directing anesthesiologist and the remain­
ing fifty percent going to the CRNA. 68 When an anesthesiologist oversees 
multiple anesthesia cases, or ''medically supervised CRNA services," Med­
icare reimburses fifty percent of the fee to the CRNA and two or three base 
units to the anesthesiologist 69 If medically supervising, an anesthesiologist 
may be reimbursed for up to five simultaneous CRNA cases, as long as the 
seven TEFRA conditions are met. 70 

ill. ANALYSIS OF RECENT NURSE ANEsTIIETIST STUDIES 

A. Anesthesiologist Direction and Patient Outcome 

The first important study of anesthesiology that is relevant to the com­
parison between anesthesiologists and nurse anesthetists was performed in 
2000.71 The study compared outcomes of Medicare surgery patients whose 
anesthesia was performed, or medically directed, by an ·anesthesiologist to 

61. !d. at 10. 
62. Id 
63. Id 
64. Id 
65. Id at9-10. 
66. Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. No. 97-248, 96 Stat. 

324. 
67. AM. Ass'NNURSE ANEsTHETISTS, supra note 23 (citing Reimbursement ofCRNA 

Services section of the compilation). 
68. Id (citing Reimbursement ofCRNA Services section of the compilation). 
69. Id (citing Reimbursement ofCRNA Services section of the compilation). 
70. !d. (citing Reimbursement of CRNA Services section of the compilation). 
71. Jeffi'ey H. Silber et al., Anesthesiologist Direction and Patient Outcomes, 93 

ANESTHESIOLOGY 152, 152 (2000). 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 291 

outcomes that were not.72 The study sought to determine if elderly patients' 
general and orthopedic surgical outcomes differed based on anesthesiologist 
involvement in anesthesia delivery. 73 As mentioned above, when discuss­
ing reimbursement basics, in order to be directed, physicians or anesthesi­
ologists must fulfill the seven criteria that allow them to bill under 
Medicare Part B?4 The study included 194 430 directed and 23,010 undi­
rected cases in 245 Pennsylvania hospitals?~ The patient data studied was 
categorized into outcomes, which included death rate within thirty days of 
hospital admission, in-hospital complication rate (applying forty-one events 
defined by International Classification of Diseases), and the rate of death 
after complications (failure-to-rescue rate).76 In order to account for possi­
ble differences in hospital administration tactics and patient individuality, 
the study was adjusted using a list of eleven hospital and patient character­
istics that standardized results. 77 

After analysis, the study found "higher mortality and failure-to-rescue 
rates for patients who underwent operations without medical direction by an 
anesthesiologist."78 As shown below, percentages of death, complication, 
and failure-to-rescue were all higher in the study's undirected cases?9 The 
unadjusted results, based just on patient outcomes alone, were as follows. 80 

Importantly, medical direction did not explain adjusted complication 
rates in Medicare patients because these rates are inade<iuate gauges of 
quality of care due to inaccurate coding and billing records. 1 Nonetheless, 
after adjustment for patient and hospital characteristics, the odds ratios (the 
likelihood of an outcome occurring in the undirected group as opposed to 
the directed group) for death and failure-to-rescue were greater than 1, at 
1.08 and 1.10 respectively. 82 The death and failure-to-rescue odds ratios 
correspond to 2.5 excess deaths per 1,000 patients and 6.9 excess failure-to-

72. Id 
73. Id. at 153. 
74. Id 
75. Id. 
76. /d. at 154. 
77. Id at 155; see also AM. Soc'Y .ANEsTHEsiOLOGISTS, supra note 48, at 32-33. 
78. Silber et al., supra note 71, at 160. 
79. Id. at 157. 
80. /d. 
81. Id. at 160. 
82. Id. at 158; see also AM. Soc'y ANEsTIIESIOLOGISTS, supra note 48, at 32-33. 



292 INDIANA HEALTH LAW REvmw [Vol. 9:1 

rescue deaths after complications per 1,000 patients when an anesthesiolo­
gist did not perform or direct the care. 83 

· The results of this study may be easily skewed by hospital differences 
{for example, the number of beds over 200, the hospital's nurse-to-bed ra­
tio, or the percentage of anesthesiology staff that is board certified) or from 
basing conclusions on elderly Medicare patients; however, even after ad­
justing for both of these factors, the effect of an anesthesiologist providing 
care was still shown to benefit patients. 84 In concluding that mortality rates 
prior to and after complications were lower when anesthesiologists provid­
ed anesthesia, this study acknowledged a limitation of basing the findings 
on claims data and an inability to rule out the possibility conclusions could 
be based on differences in guality of direction, the lack of direction itself, or 
a combination of the two. 85 . 

B. Cost E.ffoctiveness Analysis of Anesthesia Providers 

Conversely, in a more recent 2010 study, the Lewin Group analyzed 
anesthesia administration models in order to determine if different anesthe­
sia delivery models affect quality and cost-effectiveness of anesthesia ser­
vices.86 The study used "independent" CRNAs to refer to nurses who 
provide anesthesia but are not medically directed or supervised. 87 As in 
other studies and costing models, the terms "medically directed" or "super­
vised" were used to define CRNAs who provide anesthesia under anesthe­
siologist oversight. 88 The first issue considered in this study was quality of 
care, which is an important aspect of using alternative anesthesia delivery 
models.89 

The authors of this study cite multiple reports that ''have found no sig­
nificant differences in rates of anesthesia complications or mortality be­
tween CRNAs and anesthesiologists or among delivery models for 
anesthesia that involve CRNAs, anesthesiologists, or both after controlling 
for other pertinent factors."90 However, impreciseness, the inability to dis­
tinguish between whether CRNAs or medical residents were being directed, 
and utilizing typical hospital practices instead of providers' specific practic-

83. Silber et al., supra note 71, at 158. 
84. Id at 152. 
85. Id 
86. Press Release, American Association of Nurse Anesthetist, Study Shows CRNA­

Only Anesthesia Delivery Most Cost Effective (June 21, 2010), available at http:// 
www.aana.com/news.aspx?id=26336&terms=lewin+study. 

87. Paul F. Hogan et al., Cost Effectiveness Analysis of Anesthesia Providers, 28 
NURSINGEcON.159, 160(2010). 

88. Id. 
89. Id. 
90. Id 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 293 

es are all mentioned as limitations of the past-cited $tudies.91 Then, the au­
thors conclude that it is "not surprising there are no studies that show a sig­
nificant difference between CRNAs and anesthesiologists in patient 
outcomes. "92 Although. the authors identified multiple flaws in such stud­
ies, and the aforementioned Silber study found differences in outcomes 
based on supervision, the authors quickly concluded that there is no differ­
ence in quality of care between anesthesiologists and nurse anesthetists and 
thus sweepingly generalized a point of utmost concern to the ongoing battle 
between these two relevant professions. 

In addition to literary data, the Ingenix national database that con­
tained integrated medical and financial claims data from commercial payers 
in 2008 was studied by the Lewin Group.93 Out of 52,636 anesthesia 
claims that were reviewed, no complications arising from anesthesia were 
found.94 On top oflngenix, the Healthcare Cost and Utilization Project Na­
tionwide Inpatient Sample, which compiled information from about eight 
million U.S. community hospital stays, was also observed.95 Even though 
anesthesia provider information was not included in the hospital stay data, 
this study based its quality of care conclusion on the fact that the complica­
tion percentage for the representative sample was 0.12%.96 

If quality of care is assumed to be equal regardless of who administers 
anesthesia, as the authors of this study portray to their readers, then the best 
anesthesia delive~ method for patients and facilities alike is the one that 
minimizes costs.9 In order to estimate costs and revenues under the differ­
ent delivery models, a model was developed to simulate costs for each type 
of delivery. 98 The user of the model must specify a number of key factors, 
such as: demand (number of patients seeking an operation in a day), char­
acteristics of the anesthesia procedure (a base unit complexity number and 
the time required to do the procedure), and a payer distribution (noting the 
type of payment for each patient).99 Further, the cost estimation model 
used the salary or annual earnings of anesthesiologists and CRNAs to de­
termine the final values.100 Results of the simulation when patient flow was 
sufficient to have four anesthesia procedures per day were as follows.101 

91. Id. 
92. Id. at 161. 
93. Id. 
94. Id. 
95. Id. 
96. Id. 
97. Id. 
98. Id. at 162. 
99. Id. 

100. Id. 
101. Id. at 163. 



294 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

Results of the simulation when patient flow was only two anesthesia 
procedures per day, when four were possible, were as follows.102 

This data showed the most cost-effective delivery model was CRNAs 
practicing alone, regardless of what level of demand is present.103 When 
demand was below average, which would include many rural areas of the 
United States, all delivery modes except CRNAs alone would require sub­
sidies to be a viable option.104 Overall, this study hypothesized that 
CRNAs · are less costly to train, provide higher revenues, and are inter­
changeable with anesthesiologists, as thecfs can perform the same anesthesia 
services as medical doctors for less pay.1 s 

After this bold conclusion regarding the cost effectiveness of nurse 
anesthetists was released, the American Society of Anesthesiologists was 
quick to respond.106 Dr. Alexander Hannenberg, President of the American 
Society of Anesthesiologist (ASA), offered seven reasons to question the 
cost-effectiveness study, including:107 

1) The scope of service given by an anesthesiologist and a CRNA is 

102. /d. at 164. 
103. /d. at 165. 
104. Id 
105. Id at 168. 
106. Rob Kurtz. ASA President Offers 7 Reasons to Question Anesthesia Cost­

Containment Study, BECKER's ASC REviEw (July 1, 2010}, http://www.beckersasc.com/ 
anesthesia/asa-president-offers-7-reasons-to-question-anesthesia-cost-containment­
study.html. 

107. /d 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANEsTHETISTS 295 

not the same because an anesthesiolog!st provides critical care medicine, 
pain management, and on-call coverage.108 

2) The comparison of outcomes is invalid because the types of proce­
dures done "solo" by CRNAs are of lower complexity, since patients, sur­
geons, and facilities prefer physician care for the more serious 
procedures.109 

3) Only a few states are exempt from federal standards that make it 
necessary for a surgeon performing a procedure to supervise CRNAs; thus, 
defining CRNA services as "solo" is a misnomerY0 

4) Medicare fees for using CRNAs and anesthesiologists are equal, so 
overall costs may increase if the CRNA calls for medical assistance or con­
sultations. 111 

5) The wage estimations for CRNAs and anesthesiologists that are 
used assume equal work hours. Not only do the two professions not work 
the same hours, but also if CRNAs surpass the forty-hour week:, employ­
ment costs are considerably increased, which is not the case with anesthesi-
ologists! 12 . 

6) The Center for Disease Control concluded in 1980 that a compara­
tive outcomes study could not be done based on ,the infrequency of major 
adverse anesthesia events. As thirty years have passed with fewer adverse 
events, the study is substantially less accurate. Also, the Ingenix database 
that was used is ''fraudulent, discredited and outlawed."113 

7) In 2001, a study showed that seventy percent of all respondents 
would oppose a CRNA without supervision if a medical doctor could su­
pervise the procedure at no additional cost; thus, patients tend to prefer an-

tb . 1 . dmin' . th . 114 es esto ogtsts a tstenng anes esta. . 
Dr. Hannenberg closed by saying, 

108. Id 
109. Id 
110. Id 
111. Id 
112. Id. 
113. Id 
114. Id 

We [anesthesiologists] stand for access to safe and 
leading care for patients. We've gone through years 
and years of rigorous training in medical school, in­
ternships, residencies and fellowships. Anesthesiolo­
gists provide critical knowledge and expertise needed 
to keep total watch over the human body, to keep 
people stable and intervene when they are not. We 
are the leaders of anesthesia care teams which include 
CRNAs. The role of the anesthesiologist is to keep 



296 INDIANA HEALTH LAW REviEW 

watch over a patient's vital health when he/she is at 
his/her most wlnerable. We take pride in this role 
each and every day.115 

[Vol. 9:1 

C. No Harm Found when Nurse Anesthetists Work Without Supervision by 
Physicians 

In a 2010 article, researchers at the Research Triangle Institute, an in­
dependent, non-profit research institute, explored the change in the CMS 
supervision requirement by analyzing Medicare data for 1999-2005 in order 
to determine if the 2001 CMS policy had a negative impact on patient out­
comes.116 To show an effect on outcomes, the opt-out policy must actually 
change the way anesthesia is being provided and there has to be a difference 
in the outcomes linked to the new arrangement. 117 The study identified 
three arrangements for anesthesia being administered: anesthesiologists 
practicing solo, certified registered nurse anesthetists practicing solo, and 
team anesthesia where nurses were directed or supervised. 118 

Studied data resulted in 741,518 surgical discharges, but only two­
thirds possessed anesthesia claims. The 481,440 hospitalizations that re­
mained for anaiifsis included 412,696 in non-opt-out states and 68,744 in 
opt-out states.11 Similar to the first study discussed in this Note, inpatient 
mortality, measured by checking discharge abstracts, and complications, 
detected by identifyj.n~ seven possible problem indicators, were the two 
measured outcomes.12 To adjust for hospitals referring more difficult pro­
cedures to anesthesiologists, the statistics were controlled to deal with pa­
tient characteristics and procedure complexity.121 

Resulting data showed that solo practicing nurse anesthetists did in­
crease in opt-out states, 122 which is exactly what the CMS rule allows after 
2001; thus, the first conclusion of the study is not shockin9.' Next, the study 
presented results as follows of surgical inpatient mortality. 23 

115. /d. 
116. Dulisse & Cromwell. supra note 17, at 1470. 
117. /d. 
118. Id 
119. /d. at 1471; see also RTI International, supra note 17. 
120. Dulisse & Cromwell, supra note 17, at 1471. 
121. /d. at 1471. 
122. /d. at 1472. 
123. /d. at 1473. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 297 

"In non-opt-out states, mortality rates for the [two] anesthesia ar­
rangements followed a general downward trend throughout the seven-year 
period."124 However, of interest is the "general downward trend" in opt-out 
states. After increasing from 1999 to 2001, the rate decreased from 2001 to 
2005.125 Nevertheless, the rate did not significantly decrease between 2001 
and 2005; rather, it increased almost a quarter from 2002 to 2003 (one year 
after CMS opt-out inception) and increased again from 2004 to 2005.126 

Further, the study failed to note that the mortality rate was lower for solo 
MDA administration in three of five years after the supervision requirement 
was implemented; thus, allowing physicians to practice alone without 
CRNAs seems to be a safer alternative, regardless of the "decreasing trend" 
of CRNA solo practitioners.127 

As stated earlier, linking the amended CMS rule to patient outcome 
changes ''requires both that the proportion of surgical procedures for which 
certified registered nurse anesthetists alone provided anesthesia changed as 
a consequence of the policy change, and that the type of anesthesia provider 
affects the likelihood of in-hospital mortality or other adverse event."128 

The data demonstrated neither of the two necessities. Instead, the data 
found that the proportion of anesthesia without anesthesiologist supervision 
increased five percentage points in all states, not just opt-out states.129 

Nonetheless, declining mortality (or at least a downward trend according to 
the study) was normal despite the increasing number of solo nurse anesthe­
tists in opt-out states. This mortality rate was even lower than solo anesthe­
siologists' mortality rate.130 These results led researchers to recommend 
that "CMS return to its original intention of allowing nurse anesthetists to 
work independently of surgeon or anesthesiologist supervision without re-

124. !d. 
125. !d. 
126. !d. 
127. !d. 
128. !d. 
129. !d. 
130. Id 



298 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

quiring state governments to formally petition for an exemption."131 Thus, 
the researchers here advocate adopting the aforementioned Clinton nurse 
autonomy rule that was a response to the 1997 "original" intention of the 
H lth C F. . Adrnini' . 132 ea are mancmg stratton. 

Like the cost-effectiveness study, the ASA did not allow this article to 
be published without comment.133 The ASA believes the AANA-sponsored 
paper "is an advocacy manifesto masquerading a.~ science and does a dis­
service to the public. It makes dangerous public policy recommendations 
on the basis of inadequate data, flawed analysis and distorted facts. "134 The 
inadequate data stems from the fact that billing data was used to make 
forthri~t conclusions about doing away with supervision of nurse anesthe­
tists.13 Such data does not distinguish between complications that happen 
during surgical procedures or due to anesthesia.136 Further, conditions are 
not noted as existing prior to surgery or as a result of anesthesia or surgery; 
thus, utilizing such data for a momentous hypothesis is flawed. 137 

In addition, if using the Institute ofMedicine's current death per anes­
thesia mortality estimate based on 481,000 cases, the study would have dis­
covered two anesthesia-related deathsk which is an unrealistic number on 
which to base mortality hypotheses.13 Lastly, ASA member and former 
nurse anesthetist, Ann C. Still, M.D., averred, "Having cared for patients as 
a CRNA and now as an anesthesiologist, I see daily how safe patient care 
requires a physician's training."139 

IV. OPT-OUT STATE REQUIREMENTS, STATUTES, AND REGULATIONS 
VERSUS CURRENT SIMILAR INDIANA LAW 

As of October 2010, sixteen states have opted out of the federal super­
vision requirement since the enactment of the November 13, 2001, CMS 
Rule. 140 Of particular importance in this Note are New Jersey, California, 
and Colorado because these states' nurse anesthetist regulations or opt-out 
decisions have been legally challenged. Scrutinizing the claims against 
each state in these cases will allow for a better prediction regarding the con­
sistency or inconsistency of a possible opt out in Indiana as compared to 

131. Id at 1475. 
132. See generally id 
133. Press Release, American Society of Anesthesiologists, ASA Statement Regarding 

AANA-Sponsored Paper Published in Health Affairs, August 2010 (Aug. 5, 201 0), available 
athttp://www.asahq.org/news/asanews080510.htm. 

134. /d. 
135. /d. 
136. Id 
137. /d 
138. /d. 
139. /d. 
140. AM.Ass'NNURsE.ANEsnmnsTS,supranote 15. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE A.NESTIIETISTS 299 

nurse anesthetist regulations currently in place in opt-out states. Further, a 
more unproven analytic comparison of Indiana and the opt-out states of Io­
wa, Washington and Wisconsin based on geographic and demographic data 
bolsters the argument that Indiana is not similarly situated to necessitate 
opting out. 

A. Opt-Out Requirements 

In order to opt out of the federal supervision requirement, the state's 
governor must send a confirmation letter to CMS stating that he or she has 
consulted with the state's boards of medicine and nursing regarding issues 
related to patient access and quality of care of anesthesia, opting out is in 
the best interest of the state citizens, and the opt-out is consistent with state 
law.141 Upon the governor's submission of the attestation letter, the opt-out 
bee . d' l £'C, • 142 omes tmme tate y eu.ective. 

In response to comments about the opt-out rule, CMS made clear that 
consultation between governors and state boards of medicine and nursing is 
required in order to jnclude both sides in the opt-out discussion; however, 
"consultation" was purposefully not explicitly defined so that governors 
have maximum flexibility when making the opt-out decision.143 The fact 
that decisive authority remained in the hands of governors, who may not be 
scientifically endowed to review literature and make decisions, worried 
many commentators.144 CMS countered by pointing out that most scope­
of-practice regulations for practitioners are made by states, thus enacting 
the opt-out rule to eliminate such regulations is no different.145 

Another gray area is the interpretation of the "consistency with state 
laws" requirement, which produced the most comments when the opt-out 
rule was proposed. This ~rement dealt with requests to outline steps in 
determining "consistency."1 CMS recognized the differing opinions be­
tween anesthesiologists and nurse anesthetists on the state law issue (anes­
thesiologists say that only New Hampshire allows CRNAs to practice 
without supervision, while nurse anesthetists, based solely on nursing regu-

141. Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthe­
sia Services, 66 Fed. Reg. 56,762, 56,763 (Nov. 13, 2001) (to be codified at 42 C.P.R. pts. 
416, 482, 485). 

142. AM.Ass'NNURSEANEsTHETISTS,supranote 15. 
143. Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthe­

sia Services, 66 Fed. Reg. 56,762,56,763-64 (Nov. 13, 2001) (to be codified at 42 C.P.R. pts. 
416,482, 485). 

144. Medicare and Medicaid Programs; Hospital Conditions ofParticipation: Anesthe­
sia Services, 66 Fed. Reg. 56,762, 56,766 (Nov. 13, 2001) (to be codified at 42 C.P.R. pts. 
416, 482, 485). 

145. Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthe­
sia Services, 66 Fed. Reg. 56,762, 56,766 (Nov. 13, 2001) (to be codified at 42 C.P.R. pts. 
416,482, 485). 

146. Id. 



300 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

lations, argue that thirty-nine states do not have supervision requirements 
for CRNAs) but believed governors were the best suited to determine if opt­
ing out was consistent with state law!47 The bottom line is that ''the gover­
nor's letter to the Administrator of CMS will be accepted on face value, 
with no indefendent CMS scrutiny or analysis of the governors' underlying 
rationale. "14 

B. Challenged State Regulations or Opt-Out Decisions 

1. State Law Challenges 

a. New Jersey office-setting nurse anesthetist supervision 

Although New Jersey is not an opt-out state, nurse anesthetist supervi­
sion requirements have been challenged both in the ApEellate Division of 
the Superior Court and the New Jersey Supreme Court. 49 In 1997, ironi­
cally, the same year that the Health Care Financi~ Administration pro­
posed the nurse autonomy rule to President Clinton, 1 the New Jersey State 
Board of Medical Examiners moved in the opposite direction by proposing, 
and later codifying/ supervision regulations for anesthesia administered in a 
physician's office. 51 When either general or regional anesthesia is admin­
istered by a CRNA in a New Jersey doctor's office, the CRNA must be 
''under the supervision" of a ''physician privileged by a hospital or the 
Board" to give anesthesia.152 In addition, the monitoring physician must 
''be physically present and available to immediately diagnose and treat the 
patient in an emergency, without concurrent responsibilities to administer 
anesthesia or perform surgery, other than minor surgery."153 

Once this regulation was adopted, the New Jersey Association of 
Nurse Anesthetists (NJANA) brought an appeal challenging the adoption, 
stating that it was without medical support, an arbitrary promulgation, and 

147. Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthe­
sia Services, 66 Fed. Reg. 56,762,56,764-65 (Nov. 13, 2001)(to be codified at 42 C.F.R. pts. 
416, 482, 485). 

148. Medicare and Medicaid Programs; Hospital Conditions of Participation: Anesthe­
sia Services, 66 Fed. Reg. 56,762, 56,766 (Nov. 13, 2001) (to be codified at 42 C.F.R. pts. 
416, 482, 485). 

149. Linda Dycbkowsk:i, It's Still "No!" for N.J. CRNAs, NURSE.COM (Mar. 27, 2006), 
http://news.nurse.com/apps/pbcs.dlllarticle?AID=2006603270382. 

150. Goldstein, supra note 7. 
151. N.J. State Ass'n of Nurse Anesthetists v. N.J. State Bd. of Med. Exam'rs, 859 

A.2d 1239, 1240 (N.J. Super. Ct. App. Div. 2004), affd sub nom. N.J. Ass'n of Nurse Anes­
thetists v. New Jersey State Bd. ofMed. Exam'rs, 875 A.2d 247 (N.J. 2005). 

152. N.J. ADMIN CODE§§ 13:35-4A.9(aX1), (b)(2011). 
153. N.J. ADMIN CODE § 13:35-4A.9(c) (2011); see also N.J. State Ass'n of Nurse 

Anesthetists, 859 A.2d at 1241-42. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 301 

. f th . gul th . . 154 H an overextension o au onty to re ate e nursmg practice. owever, 
the Medical Board "specifically may adopt rules to protect the health, safety 
and welfare of its licensees' ~tients and provide standards for the practice 
of medicine in New Jersey." 55 Regardless, the NJANA argued that stud­
ies, similar to those mentioned previously, demonstrate that death rates are 
the same among patients obtaining care from anesthesiologists as they are 
among those receiving care from nurse anesthetists working alone, making 
the supervision arbitrary.156 The Appellate Division of the Superior Court 
found persuasive the Medical Board's position that these studies deal with 
hospitals, where an anesthesiologist is usually present, instead of the rele­
vant office setting where no such studies have been conducted.157 

Moreover, the NJANA claimed that no factual basis existed for im­
plementing this regulation; however, the court discarded this argument 
based on a belief that the Board "should not have to wait for bad results to 
require that its physicians meet higher standards in the administration of 
patient care."158 Lastly, the NJANA argued that the Board was regulating 
the nursing profession, which the court concluded was incorrect, as only 
physicians who offered anesthesia in their offices were being regulated to 
ensure certain credential requirements were being met.159 Thus, the adop­
tion of regulations by the New Jersey State Board of Medical Examiners 
was ultimately found to be lawful, and the CRNAs were required to adhere 
to supervision.160 

When the NJANA appealed the decision of the Appellate Division, the 
Supreme Court of New Jersey~ concluding that the education and 
training of anesthesiologists better preJares them to ''protect patients and to 
respond when complications occur!'1 The court also found that there was 
insufficient evidence relative to available research to find that safety levels 
between doctors and CRNAs sedating patients are equal.162 

b. Louisiana scope of practice ruling 

Another non-opt-out state where CRNA activity has produced litiga­
tion is Louisiana. In 2005, the Louisiana State Board of Nursing (LSBN) 
implemented a policy permitting CRNAs to perform pain management, 

154. N.J. State Ass'n of Nurse Anesthetists, 859 A.2d at 1241-42; Dychk:owski, supra 
note 149. 

155. In re N.J.A.C. 13:35-6.14, 501 A.2d 547, 550 (N.J. Super. ClApp. Div. 1985). 
156. N.J. State Ass'n ofNurse Anesthetists, 859 A.2d at 1244. 
157. /d. 
158. /d. 
159. /d. at 1245-46. 
160. See id. at 1246. 
161. N.J. Ass'n of Nurse Anesthetists v. N.J. State Bd. of Med. Exam'rs, 875 A.2d 

247, 251 (N.J. 2005). 
162. Jd at 250. 



302 

stating: 163 

INDIANA HEALTH LAW REVIEW 

[I]t is within the scope of practice for the CRNA to 
perform procedures under the direction and supervi­
sion of the physician· involving the injection of local 
anesthetics, steroids and analgesics for pain manage­
ment purposes, peripheral nerve blocks, epidural in­
jections, and spinal facet joint injections when the 
CRNA can document education, training and experi­

. ence in performing such procedures and has the 
knowledge, skills, and abilities to safely perform the 
procedures based on an order from the physician.164 

[Vol. 9:1 

Consequently, an anesthesiologist pain management group, Spine Di­
agnostics Center of Baton Rouge, filed suit seeking an injunction against 
the LSBN to enjoin the adoption of such a provision and prevent CRNAs 
from practicing pain management.165 

Statutorily, CRNAs in Louisiana cannot perform anesthesia unless the 
anesthetics and ancillary services are administered ''under the direction and 
supervision of a physician or dentist."166 Based on this statute alone, 
CRNAs may argue that pain management is an allowable anesthetic "ancil­
lary service" they can perform under supervision. In the alternative, the 
CRNAs could contend that if prohibition of CRNAs performing pain man­
agement was intended by the legislature, it would have been included in the 
Louisiana anesthesia administration statute.167 

The Louisiana Court of Appeal did not accept either of these possible 
CRNA arguments and affirmed the district court's judgment in favor of 
Spine Diagnostics Center based on scope of practice reasoning.168 The ap-

. pellate decision concluded that ''the statement issued by the LSBN expand­
ed the scope of practice for CRNAs into an area where they have not 
traditionally practiced" and that "pain management is not within the sco~ 
of practice of a CRNA, but rather is solely the practice of medicine." 69 

Multiple witnesses backed the finding. 170 In particular, Dr. Frank Falco 
believed that practicing pain management without proper training could 

163. GA. Ass'N OF NURSE ANE81HETISTS, LoUISIANA APPELLATE COURT RULES 
AGAINST CRNA-PROVIDED CHRONIC PAIN MANAGEMENT 2 (2009) available at 
http://www.gana.org/documents/ LouisianaRu1esAgainstCRNApdf; Spine Diagnostics Ctr. 
of Baton Rouge, Inc. v. La. State Bd. ofNursing, 4 So. 3d 854, 857 (La. Ct. App. 2008). 

164. Spine Diagnostics Ctr. of Baton Rouge, Inc., 4 So. 3d at 857. 
165. Id 
166. LA. REv. STAT. ANN.§ 37:930 (2011). 
167. Spine Diagnostics Ctr. of Baton Rouge, Inc., 4 So. 3d at 863. 
168. GA. Ass'NOFNURSEANEsTHETISTS,supra note 163. 
169. Spine Diagnostics Ctr. of Baton Rouge, Inc., 4 So. 3d at 867. 
170. See id at 865. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANES1HETISTS 303 

bring about to adverse consequences due to the varying complexity of each 
patient's pain management program.171 

c. California opt-out challenge 

Similar to the challenge by the nurse anesthetists in New Jersey, the 
California Society of Anesthesiologists brought suit against California 
Governor Arnold Schwarzenegger in February 2010 to dis_gute that his 2009 
opt-out was inconsistent with state law in Califomia.1 In California, 
CRNAs' scope of practice is broadly defined under the practice of nursing 
as: ''those functions, including basic health care, that help people cope with 
difficulties in daily living that are associated with their actual or pOtential 
health or illness problems."173 Nurses can also administer medications and 
therapeutic agents, which have been universally understood to include anes­
thesia that are "ordered by and within the scope of licensure of a physi­
cian."174 Nevertheless, the practice is somewhat limited because nothing 
defining the scope of nurse anesthetist practice in California confers the 

f . d' . 175 power o a nurse to practice me tcme or surgery. 
With only a trial court order available thus far, and appellate review 

beginning on January 31, 2011, the arguments by the parties to the Califor­
nia ogt-out challenge have to be deduced solely from the trial court's find­
ings. 6 The California Society of Anesthesiologists, like other 
anesthesiologists outlined in this Note, claimed that to be "ordered by" a 
physician is synonymous with being supervised.177 As a matter of fact, the 
ASA notes that "supervision or direction" can come in the "form of a phy­
sician's patient-s~ecific order, request or prescription of treatment for anes­
thesia services." 78 Thus, to order a nurse anesthetist to administer 
medication most assuredly would be supervision.179 However, the trial 
court did not accept this argument, simply dismissing it by stating ''the plain 
meaning of the word 'ordered' is not 'supervised. "'180 In addition, ''Cali-

171. /d. 
172. Summons on Complaint at 1, Cal. Soc'y of Anesthesiologists et al. v. 

Schwarzenegger, No. 10-510191 (Cal. Super. Ct. S.F. Cnty. Feb. 24, 2010). 
173. CAL. BUS. & PROF. CoDE§ 2725(b )(2011). 
174. CAL. Bus. & PROF. CoDE§ 2725(b)(2) (2011). 
175. CAL. Bus. & PROF. CODE§ 2833.5 (2011). 
176. Notice of Appeal at l, Cal. Soc'y of Anesthesiologists et al. v. Schwarzenegger, 

No. 10-510191 (Cal. Super. Ct. S.F. Cnty. Jan. 31, 2011). 
177. CRNA Scope of Practice Under California Law, ON YOUR BEHALF ... 

LEGISLATIVE AND PRACTICE .AFFAJRS DMSION (Cal. Soc'y of Anesthesiologists, San Mateo, 
Cal.), Fall 2007, at 30, available at http://www.csahq.org/pdf/bulletin/issue_l8/LPAD_ 
56_3.pdt: 

178. AM. Soc'y ANEsTHESIOLOGISTS, supra note 48, at 34. 
179. See id. 
180. Summary Judgment Order at 3, Cal. Soc'y of Anesthesiologists et al. v. 

Schwarzenegger, No. 10-510191 (Cal. Super. Ct. S.F. Cnty. Dec. 27, 2010). 



304 INDIANA HEALTH LAW REVIEW [Vol. 9:1 

fornia law does not contain any explicit supervision requirement. Rather, at 
best, it is ambiguous on the supervision issue."181 An alternative argument 
of the Society was that administering anesthesia fits into the practice of 
medicine; therefore, giving CRNAs the ability to administer anesthesia 
without supervision contradicts California state law prohibiting nurses from 
practicing medicine.182 Like the anesthesiologists' supervision argu)!:!ent, 
the trial court did not find their alternative argument persuasive either.183 

On the contrary, CRNAs in California quickly pointed out that in oth­
er provisions defininJJ the practices of different nurse types the word "su­
pervision" appears.1 For example, when dealing with a midwife, ''the 
furnishing or ordering of drugs or devices by a certified nurse-midwife oc­
curs under physician and surgeon supervision. For purposes of this section, 
no physician and surgeon shall supervise more than four certified nurse­
midwives at one time."185 If the legislature intended to include "supervi­
sion" for the nurse-midwives, then lawmakers would have included such 
wording for CRNAs if it were required.186 

Based on the aforementioned arguments given by both sides, and ac­
cepting those offered by Governor Schwarzenegger and the California As­
sociation of Nurse Anesthetists .as interveners, summary judgment 
upholding the state opt-out was granted.187 Therefore, the Superior Court 
of the State of California, County of San Francisco found that Governor 
Schwarzenegger's June 10, 2009letter to CMS opting out of federal CRNA 
supervision requirements was not an abuse ofhis discretion.188 

d. Colorado opt-out challenge. 

On September 28,.2010, .the Colorado Society of Anesthesiologists 
brou~t suit to challenge Governor Bill Ritter's October 2010 opt-out deci­
sion, 89 In their complaint the Colorado Society of Anesthesiologists 
prayed for a declaratory judgment and injunctive relief based on controver­
sy about statutes dealing with the administration of anesthesia, making the 
opt-out inconsistent with state law.190 "On July 29, 2010, Governor Ritter 

181. Id. at2. 
182. See id at 6; see also CAL. Bus. &PROF. C0DB § 2833.5 (2011). 
183. SUmmary Judgment Order at 6, Cal. Soc'y of Anesthesiologists et al. v. 

Schwarzenegger, No. 10-510191 (Cal. SUper. Ct. S.F. Cnty. Dec. 27, 2010). 
184. Seeid at3. 
185. CAL. Bus. & PROF. CODB § 2746.5l(a)(4)(201l). 
186. Summary Judgment Order at 3, Cal. Soc'y of Anesthesiologists et al. v. 

SchwatZenegger, No. 10-510191 (Cal Super. Ct. S.F. Cnty. Dec. 27, 2010). 
187, Id. at 7. 
188. Id. at I. 
189. Hot Issues, COLO. MIID. Soc'Y, hUp:/lwww.cms.orglpublic-affairs/hot-issues/ 

#Anesthesiao/o200pto/o200ut (last visited Jan. 8, 2012). 
190.. O:mlplaint at 2, Colo. Med. Soc'y v. Ritter, No. 33504523 (Denver Dist. Ct. Sept. 

28, 2010). 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANEsTHETISTS 305 

issued a letter to the Colorado Medical Board and the Colorado Board of 
Nursing which declared his 'understanding' that 'the Colorado Nurse Prac­
tice Act allows CRNAs to practice without direct supervision from a physi­
cian. "'191 According to an eight to five vote of the Colorado Medical 
Board, it was later determined that an opt-out was consistent with state law, 
sparkin2 firm disagreement from the Colorado Society of Anesthesiolo-

. ts 19T gtS . 
In Colorado, nurse anesthetists are classified as advanced practice 

nurses, meaning that the nurse bas specialized training and bas applied to 
the board to be included in the advanced practice registry.193 The scope of 
practice comes under the definition of a delegated medical function, which 
means "an aspect of care that implements and is consistent with the medical 
plan as prescribed by a licensed or otherwise legally authorized physician .. 
. and is delegated to a registered professional nurse by a physician."194 For 
the purpose of defining delegated medical function, ''medical plan" includes 
any written plan, verbal order, or standing order that authorizes specific ac­
tion!95 

Using these statutory provisions, the Colorado Society of Anesthesiol­
o~sts brought many of the same arguments as those in the California Socie­
ty.196 For one, the Colorado anesthesiologists believe that delegated 
medical functions by nurse anesthetists must follow accepted ·practices; 
therefore, since administration of anesthesia is practicin' medicine, supervi­
sion is required under accepted practices in Colorado.1 7 On the contrary, 
Governor Ritter and the nurse anesthetist association would likely make the 
same argument that was accepted in California: that supervision and an 
"order'' are not synonymous terms. Thus, if a medical plan includes the 
nurse who administers the anesthesia, Colorado law would not explicitly 
require supervision of anesthetists. As with California, the language of the 
Colorado statute does not seem strong enough to overturn the deference 
given to the governor in opt-out decisions, but continuing to monitor this 
case as it moves through the Colorado court system is necessary. 

e. The Indiana Code language and precedent cases 

As mentioned earlier, a CRNA in Indiana can only perform anesthesia 
"if the certified registered nurse anesthetist acts under the direction of and 

191. Id at3. 
192. Id. 
193. Cow. REv. STAT.§ 12-38-111.5(2)(2010). 
194. Cow. REv. STAT.§ 12-38-103(4) (2010). 
195. Id 
196. See Complaint at 4-6, Colo. Med. Soc 'y v. Ritter, No. 33504523 (Denver Dist. Ct. 

Sept. 28, 2010). 
197. Cow. REv. STAT.§ 12-38-103(10Xa) (2010). 



306 INDIANA HEALTH LAw REVIEW [Vol. 9:1 

in the immediate presence of a physician."198 Based on the foregoing chal­
lenges and the language of the Indiana Code, the Indiana Society of Anes­
thesiologists would have a much better argument that an opt-out is 
inconsistent with Indiana state law. Both California and Colorado use the 
word "order" when defining how a physician monitors a nurse anesthe­
tist.199 Indiana's language is much stronger, as its Code requires nurses 1o 
be both under the direction and in the presence of a physician. It would be 
hard for the governor to claim, as in California and Colorado, that direct 
supervision of CRNAs is not explicitly defined by statute in Indiana. In 
addition, Indiana could use the New Jersey persuasive authority, even 
though it deals with office procedures, to bolster the argument that lawmak­
ers have a factual basis to regulate CRNA scope of practice. By pointing to 
the weaknesses of the cost-effectiveness and Medicare data studies dis­
cussed earlier in this Note, Indiana anesthesiologists would also be able to 
show that, effectively, nurse anesthetists have not come up with an empiri­
cal study proving their practice is as safe or safer than anesthesiologists 
administering anesthesia because input data is flawed. 200 

In addition, Indiana has the ability to draw from the ruling by the Lou­
isiana Appellate Division decision regarding scope of practice. Although 
the CMS opt-out provision does not expand CRNAs scope of practice re­
sponsibilities, the perspective given by Dr. Falco (finding CRNAs under 
qualified to perform chronic, complex pain management) bolsters the argu­
ment that Indiana should not opt out of supervision.2°1 Since CRNAs are 
not able to provide the pain management that anesthesiologists regularly 
administer, it is logically concluded that the aforementioned knowledge 
disparity between anesthesiologists and CRNAs is wide. Extending the gap 
to current CRNAs' scope of practice abilities shows that complications 
stemming from CRNAs' inability to assess "medical" situations are a com­
pelling reason to not eliminate supervision requirements. 

C. Similarly Situated Opt-Out States Contrasted to Indiana 

1. Rural Setting and Hospital Analysis 

Based on similar population and agriculture data in each state, Iowa, 

198. IND. CODE§ 25-23-1-30 (2010). 
199. See Cow. REv. STAT. § 12-38-103(4) (2010); CAL. Bus. & PROF. CODE § 

2725(b)(2) (2011). 
200. See Press Release, American Society of Anesthesiologists, ASA Statement Re­

garding AANA-Sponsored Paper Published in Health Affairs. August 2010 (Aug. 5, 2010), 
available at http://www.asahq.org/For-the-Public-and-Media/Press-Room/News-Archives/ 
ASA-Statement-Regarding-AANA-Sponsored-Paper-Published-in-Health-Affairs.aspx; 
Kurtz, supra note 106. 

201. See Spine Diagnostics Ctr. of Baton Rouge, Inc. v. La. State Bd. ofNursing, 4 So. 
3d 854, 865 (La. Ct. App. 2008). . 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 307 

Washington, and Wisconsin will adequately demonstrate the differences 
between three similarly situated, opt-out states as compared to Indiana. The 
population and farm acreage by state are as follows. 

Aside from population and farmland, total land area of each of the 
four states is also of interest. Indiana is the smallest state in square miles of 
any ofthe four at 36,417 (compared to 56,273, 71,298, and 65,496 for Io­
wa, Washington, and Wisconsin respectively).204 Lastly, and likely most 
importantly, Indiana has the most non-federal, short term, acute care hospi­
tals of any of the four mentioned states with 100 (co~ared to 40, 61, and 
75 for Iowa, Washington, and Wisconsin respectively). 5 

This data shows Indiana as the second most agricultural, the second 
most populated, the smallest in terms of square mileage, and the densest in 
terms of hospitals when compared to similarly situated states of Iowa, 
Washington, and Wisconsin. A logical conclusion from these findings is 
that rural patient access is not as limited in Indiana as the other states be­
cause patients travel shorter distances to get to hospitals based on the pre­
sumption that there is a link between low square mileage and high number 
of hospitals in Indiana. Stemming from this analysis, an argument rejecting 
an Indiana opt-out is reasonable, as doctors are more readily available and 
in closer proximity to possible facilities that would need a physician to su­
pervise CRNAs upon short notice. Overall, looking solely at rural area and 
hospital data, arguments against Indiana's patient access to anesthesia 
would crumble when compared to similarly situated opt-out states like Io­
wa, Washington, and Wisconsin, making an Indiana opt-out decision one 
the governor of Indiana need not contemplate due to anesthesia availability 
and patient access. 

2. Statutory or Code Regulation Comparison of Similarly Situated 
States 

In addition to a geographic and demographic analysis among the four 

202. U.S. CENSUS BUREAU, STATISTICAL ABs1RACT OF THE UNITED STATES: 2010, 21 
tbl.l2 (201 0), available at http:/ lwww .census.gov/prod/2009pubs/1 Ostatablpop.pdf. 

203. /d. at 805 tbl.801. 
204. Id. at 221 tbl.355. 
205. Hospital Statistics by State, AMERICAN HOSPITALS DIRECTORY, http://www.ahd. 

com/state_statistics.html (last updated Apr. 18, 2011). 



308 INDIANA HEALTH LAW REviEW [Vol. 9:1 

"States mentioned, a further look into statutory comparison will also be valu­
able in assessing why Indiana should not opt out of nurse anesthetist super­
vision. In Indiana, "[a] certified registered nurse anesthetist may administer 
anesthesia if the certified registered nurse anesthetist acts under the direc­
tion of and in the immediate presence of a physician.'.206 On the contrary, 
Iowa hospital regulation 'only requires at a minimum that, "anesthesia ser­
vices [are] provided under the direction of a qualified doctor of medicine or 
osteopathy.''207 Like Iowa, Washington orders hospitals to adopt policies 
that "[ d]efine the staff qualifications and oversight for administering each 
type of anesthesia in the hospital.'.2°8 So, it is clear that some oversight is 
necessary in Iowa and Washington. However, to reiterate, Indiana is the 
only state that requires the "immediate presence" of a physician.209 

Iowa's and Washington's "direction" and "oversight" regulations are 
more lenient and could be construed as only requiring a physician to know a 
nurse anesthetist is independently administerin~ anesthesia, so that in case 
of emergency they would be privy to the case. 10 As a result, it is likely 
that anesthesiologists in both Iowa and Washingto14like California, would 
not be able to prove that state law requires supervision. So, based on a geo­
graphic and demographic analysis, along with further statutory code com­
parisons, Indiana has two key differences from the opt-out states of Iowa, 
Washington, and ·Wisconsin before scrutinizing problems that may arise 
from an Indiana opt-out. 

.V., PROBLEMS ARISING IF INDIANA WERE TO OPT OUT OF PHYSICIAN 
SUPERVISION 

If Indiana were to opt out of physician supervision, problems would 
.arise .stemming from certificatio14 legislatures current opinion on CRNAs, 
and the inability to challenge the opt-out. Regarding certification, CMS 
stated that the Final Rule is flexible, and "[r]egarding patient safety, this 
final rule is consistent with our efforts to improve the quality of care fur­
nished through Federal programs, while at the same time recognizing 
States' traditional domain in establishing professional licensure and scope­
of-practice laws.'.2tt However, as stated above, Indiana does not recognize 
certification or require any further process to ~ce as a CRNA after the 
nurse passes the national board certification test.212 Such leniency in Indi-

206. IND. CODE ANN.§ 25-23-1-30 (LexisNexis 2010). 
207. IOWA ADMIN. CODEr. 481-51.28 (2010). 
208. WASH. ADMIN. CODE§ 246-320-241 (2010). 
209. IND. CODE ANN. § 25-23-1-30 (LexisNexis 201 0). 
210. IOWA ADMIN. CODE r. 481-51.28 (2010); WASH. ADMIN. CODE § 246-320-241 

(2010). 
211. AM. Ass'N NURSE .ANEsnmnsTS, supra note 23 (citing the Legal Issues in Nurse 

Anesthesia Practice section of the compilation). 
212. AsS'N NURSE ANESTIIE11STS, supra note 38. 



2012] PHYSICIAN SUPERVISION OF CERTIFIED NURSE ANESTHETISTS 309 

ana may lead to less qualified CRNAs attempting to practice in the state, 
which in tum could lead to less favorable anesthesia outcomes than opt-out 
states that define CRNAs as advanced registered practice nurses and require 
licensing.213 With forty-eight states and the District of Columbia requiring 
certification beyond the national exam, Michigan and Indiana, two states 
that have not opted out of federal reimbursement for CRNA activity, remain 
in the clear minority with regard to officially recognizing nurse anesthetists 
to practice.214 

In addition to lagging behind in the certification department, Indiana 
also does not offer an accredited nurse anesthetist educational program_215 

According to AANA, there are thirty-eight states, including the District of 
Columbia, that offer a total of one hundred twelve programs.216 Since Indi­
ana lacks a nurse anesthesia program, quality control of in-state nurse anes­
thetists could potentially be an issue. If hospitals, critical access hospitals, 
and ambulatory surgery centers in Indiana are counting on educators from 
different states to train its nurse anesthetists, there is no way to educate 
CRNAs as to certain experiences, nuances, preferences, or regUlations that 
are unique to Indiana. Thus, without upholding the supervision requirement 
in Indiana, physicians would, for all practical purposes, be allowing nurses 
trained by educators with differing scope of practice regulations in mind to 
administer anesthesia, which is not a patient friendly idea. 

Lastly, Indiana Senator Patricia Miller carried a 2009 bill that attempt­
ed to include Indiana CRNAs as advanced registered practice nurses; how­
ever, the bill died.217 The death of this bill, which would have expanded 
the function of Indiana CRNAs, illustrates that Indiana lawmakers are not 
ready to hand the control of anesthesia in the state over to nurses. Such a 
feeling is consistent with a study conducted by The Terrance Group in 2001 
which found that seventy percent of Medicare beneficiaries opposed the 
decision to drop the old requirement of supervision and allow nurse anes­
thetists to administer anesthesia without supervision.218 . 

VI. SOLtmONS AND CONCLUSION: KEEP THE STATUS QUO REGARDING 
SUPERVISION IN INDIANA 

After analyzing the available studies, data, and law, Indiana should 
come to the conclusion that the status quo of requiring physician supervi-

213. AM. Ass'N NURSE.ANESTIIBTISTS, supra note 42. 
214. Ass'N NURSE ANESTIIBTISTS, supra note 38. 
215. See Becoming a CRNA: Accredited Programs, AM. Ass'N NURSE A:NEsTIIBTISTS, 

http://www.aana.com/aanaaffiliates/accreditation/Pages/Accredited-Programs.aspx (last 
visited Jan. 12, 2012). 

216. See id. 
217. S.B. 190, 116th Gen. Assemb., Reg. Sess. (Ind. 2009). 
218. THE TARRANCE GROUP, NATIONAL ANESTHESIA SnJDY W: A SURVEY OF PuBLIC 

OPINION ATTinmES 3 (2001). . 



310 INDIANA HEAL Til LAw REVIEW [Vol. 9:1 

sion of certified registered nurse anesthetists should be upheld. For one, 
physician supervision of CRNAs allows for a more risk-averse, patient pre­
ferred anesthesi~ care.219 Even though administration of anesthesia is about 
fifty times safer than it was thirty. years afo due to better technology and 
practice standards, death is still possible.22 Measures taken to increase the 
likelihood of saving a human life is undeniably a reason to uphold supervi­
sion requirements. Secondly, potential financial costs increase more if phy­
sician consultation is needed when a nurse anesthetist is allowed to 
administer unsupervised care, and something goes wrong. In the current, 
poor economic times, changing requirements may also increase costs. 
When one of the opt-out provision's cornerstone arguments is cost­
effectiveness, is not a sound decision if the state government is to be look­
ing out for the best interests of Indiana citizens. 

Nonetheless, if .the decision to opt out of physician supervision is 
made in Indiana, the state should take action to further certifY CRNAs apart 
from the national accreditation test that one must take to practice as a nurse 
anesthetist. However, in order to effectively certifY and educate Indiana 
nurse anesthetists, the state must invest in a nurse anesthetist edu~tion pro­
gram. Only by requiring state recognition to practice and investing in an 
education program can Indiana ensure nurse anesthetist procedures are as 
safe as possible when nurses are unsupervised. 

As presented in the Introduction to this Note, Dr. Gleimer's twenty­
eight year old arthroscopy patient is a prime example of why a medical doc­
tor needs to be present when a nurse anesthetist administers anesthesia. Dr. 
Carol Bannister, a former CRNA and current anesthesiologist, said that 
many times "[she] felt very much on thin ice," as a nurse anesthetist and 
that it frightens her to think about being unsupervised during her time as a 
nurse.221 Overall, Dr .. Gleimer said it best himself: "We've all been in the 
OR, when a nurse anesthetist reaches the end of her ability to treat the pa­
tient .... At that point, she hollers for an anesthesiologist to get her out of 
deep water.'.222 Indiana can avoid this "thin ice" and "deep water" if they 
keep the physician supervision requirement required to gain Medicare re­
imbursement for CRNA activity, or in the alternative take preemptive 
measures to certifY and educate future nurse anesthetists. 

219. Id. 
220. AM. Ass'N NURSE ANEsTHETISTS, supra note 23 (citing Quality of Nurse Anesthe­

sia Practice section of the compilation). 
221. Rowland, supra note 6. 
222. Sataline, supra note 1 (internal quotation marks omitted).