FTC Staff: Proposed Kentucky Legislation Could Benefit Consumers; Would Expand Patient Care by Advance Practice Registered Nurses

E. Conclusion


In the final analysis, in order for this court to find that the Governor abused his discretion in attesting that opting out of the federal Medicare physician supervision requirement was consistent with state law, we would have to ignore not just one, but multiple authoritative sources uniformly concluding that CRNA's are allowed to administer anesthesia in California without physician supervision. Specifically, the Nursing Practice Act, by express statutory language, allows CRNA's to administer anesthesia in California on a physician's order but without physician supervision. (§ 2725, subd. (b)(2).) This conclusion has also been reached on numerous occasions by the Board of Registered Nursing, the agency with expertise in CRNA scope of practice matters, and is consistent with the determination of other relevant state agencies and officials, including the Attorney General. The contrary authority cited by appellants to support a supervision requirement is insufficient to render the Governor's actions "palpably unreasonable and arbitrary" so as "to indicate an abuse of discretion as a matter of law." (California Teachers Assn. v. Ingwerson, supra, 46 Cal.App.4th at p. 867.) Consequently, the Governor's attestation to the Centers for Medicare and Medicaid Services that the opt out is consistent with California law did not constitute an abuse of discretion.