Anesthesiologists v. Board of Nursi

November 6 2007

04-479

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 290

MONTANA SOCIETY OF ANESTHESIOLOGISTS,
MICHAEL D. STERBIS, M.D.,

Plaintiffs and Appellants,

v.

MONTANA BOARD OF NURSING,

Defendant and Appellee,

MONTANA ASSOCIATION OF NURSE
ANESTHETISTS,

Intervenor and Appellee.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis And Clark, Cause No. CDV 2002-710
Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Mona Jamison, Roy H. Andes, Jamison Law Firm, Helena, Montana

For Appellee:

Lorraine A. Schneider, Special Assistant Attorney General,
Helena, Montana

For Intervenor and Appellee:

J. Daniel Hoven, Sara S. Berg, Chad E. Adams, Browning, Kaleczyc,
Berry & Hoven, P.C., Helena, Montana

For Amicus Curiae An Association of Montana Health Care Providers, et al.:
 James Stogsdill, Kris A. Birdwell, Stogsdill Law offices, P.C.,
Lewistown, Montana

For Amicus Curiae Montana Medical Association:

Patrick E. Melby, Luxan & Murfitt, PLLP, Helena, Montana

Submitted on Briefs: April 20, 2005

Decided: November 6, 2007

Filed:

__________________________________________
Clerk

2
Justice James C. Nelson delivered the Opinion of the Court.

¶1 The Montana Society of Anesthesiologists and Michael Sterbis, M.D.

(collectively, “MSA”) brought this action in the District Court for the First Judicial

District, Lewis and Clark County, seeking to invalidate the amendments to Admin. R. M.

8.32.303 (Rule 303) made by the Board of Nursing (the BON) relating to the practice of

Certified Registered Nurse Anesthetists (CRNAs) in Montana. The District Court denied

MSA’s Motion for Summary Judgment in the matter and MSA appealed. We affirm.

¶2 MSA raises the following issues on appeal:

¶3 1. Whether the District Court erred in concluding that the Legislature has

authorized CRNAs to administer anesthesia to patients without physician supervision.

¶4 2. Whether administrative rules adopted by the BON which purport to allow

CRNAs to administer anesthesia to patients without physician supervision comply with

the Montana Constitution and the Montana Administrative Procedure Act (MAPA).

Factual and Procedural Background

¶5 Montana law recognizes four specialty areas of nursing collectively called

advanced practice registered nurses (APRNs). Section 37-8-202(2)(b), MCA. These four

specialty areas of nursing include CRNAs, nurse practitioners, nurse-midwives and

clinical nurse specialists. To practice in any of these four specialties requires that the

individual complete additional professional education beyond the basic nursing degree

required of a registered nurse and become certified in that particular specialty. For

example, to practice as a CRNA, the individual must (1) have a minimum of a Bachelor

of Science degree in nursing or other appropriate baccalaureate degree; (2) be licensed as

3
a registered nurse; (3) have a minimum of one year of experience in an acute care nursing

setting; and (4) graduate from an accredited nurse anesthesia program at least two years

in length. In addition, the individual must pass a national certification exam following

graduation and complete a continuing education and recertification program every two

years thereafter.

¶6 CRNAs have been the sole providers of anesthesia services in many areas of

Montana, particularly in rural areas of the State, for several years. Only nine out of the

forty medical facilities in Montana have an anesthesiologist on staff. CRNAs provide

anesthesia services at the remaining 31 medical facilities in Montana. Of the nine

facilities where an anesthesiologist is on staff, six facilities also use the services of

CRNAs.

¶7 For many years, Medicare/Medicaid rules required that CRNAs must work under

the general supervision of a physician when they administer anesthesia in order to obtain

reimbursement for CRNA services from Medicare/Medicaid. In 2001, the Code of

Federal Regulations was amended to allow the governor of each state to “opt out” of the

physician supervision requirement for Medicare/Medicaid purposes if: (1) state law so

allows; (2) they obtain the advice of their boards of nursing and medicine; and (3) they

make a finding that opting out would be in the best interests of their state. 42 CFR

§ 482.52.

¶8 On September 6, 2002, Montana Governor Judy Martz requested that the BON

and the Board of Medical Examiners (the BME) study the matter. Each board appointed

a subcommittee of three of its members to respond to the Governor’s request. A joint

4
meeting of the two subcommittees was held on November 16, 2002. Following that

meeting, the committee members recommended to their respective boards that Montana

opt out of the federal physician supervision requirement for CRNAs. The BON held a

meeting on December 2, 2002, at which its members voted to recommend to the

Governor that Montana exercise the opt-out provision. The BME held a similar meeting

on December 6, 2002, and the members of the BME also voted to recommend to the

Governor that Montana exercise the opt-out provision.

¶9 On January 22, 2004, the Governor notified Medicare/Medicaid that, after

consulting with the BON, the BME, and “other interested and affected parties,” opting

out was consistent with state law and in the best interests of the citizens of Montana.

Consequently, the Governor requested that Montana be exempted from the requirement

that CRNAs be supervised by a physician in order to receive Medicare/Medicaid

reimbursement for anesthesiology services performed by CRNAs.

¶10 Prior to the Governor’s decision to opt out, the BON had taken action to amend

Rule 303 concerning CRNA practice. On June 3, 2002, the BON issued a Notice of

Public Hearing containing proposed amendments to Rule 303. On October 10, 2002, the

BON met and adopted the amendments with a few minor changes. In its Notice of

Amendment, the BON declared that it had the authority to define the scope of practice of

its licensees. The amended rule was certified to the Secretary of State on November 18,

2002.

¶11 Rule 303 was amended as follows:

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 8.32.303 NURSE ANESTHETIST PRACTICE (1) Nurse
anesthetist practice is the independent and/or collaborative performance of
or the assistance in any act involving the determination, preparation,
administration or monitoring of any drug used in the administration of
anesthesia or related services for surgical and other therapeutic procedures
which require the presence of persons educated in the administration of
anesthetics.
(2) A nurse anesthetist is authorized to perform procedures
delineated in the American Association of Nurse Anesthetists Guidelines
for Nurse Anesthesia Practice. Copies of the guidelines may be obtained
from the American Association of Nurse Anesthetists, 216 Higgins Road,
Park Ridge, Illinois 60068, (708) 692-7050 www.aana.com. [Underlined
language added and lined through language omitted.]

¶12 MSA filed its Complaint for Declaratory and Injunctive Relief on December 4,

2002, arguing that state law does not allow unsupervised delivery of anesthesia by

CRNAs. MSA sought relief under the Montana Constitution and MAPA for violation of

the notice and participation requirements for public meetings. MSA’s claim was not

grounded upon any set of facts relating to acts or omissions of CRNAs in general or any

CRNA in particular.

¶13 In its Amended Complaint filed May 20, 2003, MSA alleged: (Count I) the BON

violated Montana’s open meeting laws by failing to provide sufficient notice of its

meetings and by failing to allow the public to participate in the rulemaking process;

(Count II) the BON did not have the authority to adopt the amendments to Rule 303 and

thereby enlarge the scope of practice of CRNAs; and (Count III) the BON violated

MAPA because it failed to provide a statement of reasonable necessity and because it

attempted to adopt by reference certain guidelines for nurse anesthesia practice derived

from the American Association of Nurse Anesthetists’s webpage when that webpage

does not actually contain the guidelines nor any link to them. Hence, MSA sought

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declaratory and injunctive relief finding that the BON’s opt-out recommendation to the

Governor is invalid because the BON violated Montana’s open meeting and public

participation laws; that the BON has no statutory authority to administratively modify the

scope of practice of nursing; and that the Rule 303 amendments are void and

unenforceable because the BON violated MAPA in seeking to enact them.

¶14 On July 18, 2003, MSA filed its Application for Preliminary Injunction requesting

that the District Court compel the BON to show cause why it should not be preliminarily

enjoined pursuant to the allegations of the Amended Complaint. The court so ordered

and scheduled a hearing for September 25, 2003.

¶15 The Montana Association of Nurse Anesthetists (MANA) moved to intervene in

the case as an additional defendant on August 13, 2003. The District Court granted the

Motion to Intervene over MSA’s objection. Thereafter, MANA moved to vacate the

show cause hearing set for September 25, 2003, and the court reset the hearing for

October 20, 2003.

¶16 On September 10, 2003, MSA filed a Motion for Summary Judgment on Counts II

and III of its Amended Complaint. Both the BON and MANA responded. MANA also

cross-moved for partial summary judgment arguing that it was entitled to summary

judgment as a matter of law because: (1) the BON has the authority to define the scope of

practice of nursing, including that of CRNAs; (2) the administration of anesthesia by a

CRNA constitutes the practice of nursing and does not constitute the practice of

medicine; (3) the BON’s amendments to Rule 303 clarify the scope of practice of CRNAs

and do not re-define it; and (4) the Legislature has specifically declined to require

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CRNAs to be supervised by physicians in their practice. The hearing on the show cause

order commenced on October 20, 2003, with the parties arguing the summary judgment

motions at the end of the hearing.

¶17 In a Memorandum and Order entered January 16, 2004, the District Court

concluded that Montana law does not require physician supervision of CRNAs, thus, the

court granted MANA’s Cross-Motion for Partial Summary Judgment on that issue.

Moreover, because the issue of physician supervision was the underpinning of Counts II

and III of MSA’s Amended Complaint, the court denied MSA’s Motion for Summary

Judgment on those claims. In addition, although the court determined that the BON did

not have the authority to expand or even define the scope of practice of CRNAs, the court

concluded that, in actuality, the Rule 303 amendments did not expand their scope of

practice. Consequently, the court denied MSA’s application for a preliminary injunction

because it failed to show that the Rule 303 amendments expanded the scope of practice of

CRNAs.

¶18 MSA subsequently requested that Count I of its Amended Complaint be dismissed

and the court complied. MSA then appealed the District Court’s denial of its Motion for

Summary Judgment on Counts II and III of its Amended Complaint to this Court.

¶19 MANA filed a Motion to Dismiss this appeal contending that MSA did not appeal

from a final judgment and that MSA “specifically and intentionally attempted to limit

their appeal” to a review of the District Court’s denial of MSA’s Motion for Summary

Judgment. We denied MANA’s Motion to Dismiss on the basis that both MSA and

MANA agreed that upon the District Court’s grant of MSA’s Motion to Dismiss Count I

8
of its Amended Complaint, MSA’s case was fully adjudicated and that no causes of

action remained before the District Court. MANA filed a Motion of Entry of Judgment

to that effect and the District Court entered Judgment for MANA. In denying MANA’s

Motion to Dismiss, we stated that “MSA is clearly appealing from a final judgment” . . .

“a judgment to which MSA and MANA both agreed.”

Standard of Review

¶20 Summary judgment is proper only when no genuine issues of material fact exist

and the moving party is entitled to judgment as a matter of law. Watkins Trust v.

Lacosta, 2004 MT 144, ¶ 16, 321 Mont. 432, ¶ 16, 92 P.3d 620, ¶ 16 (citing M. R. Civ. P.

56(c)). Our standard in reviewing a district court's summary judgment ruling is de novo.

Watkins Trust, ¶ 16 (citing Johnson v. Barrett, 1999 MT 176, ¶ 9, 295 Mont. 254, ¶ 9,

983 P.2d 925, ¶ 9; Stutzman v. Safeco Ins. Co. of America, 284 Mont. 372, 376, 945 P.2d

32, 34 (1997)). We use the same M. R. Civ. P. 56 criteria applied by the district court.

Watkins Trust, ¶ 16 (citing Johnson, ¶ 9). Moreover, all reasonable inferences which

may be drawn from the offered proof must be drawn in favor of the party opposing

summary judgment. Watkins Trust, ¶ 16 (citing Johnson, ¶ 8; Schmidt v. Washington

Contractors Group, 1998 MT 194, ¶ 7, 290 Mont. 276, ¶ 7, 964 P.2d 34, ¶ 7). If there is

any doubt regarding the propriety of the summary judgment motion, it should be denied.

360 Ranch Corp. v. R & D Holding, 278 Mont. 487, 491, 926 P.2d 260, 262 (1996)

(citing Whitehawk v. Clark, 238 Mont. 14, 18, 776 P.2d 484, 486-87 (1989)).

Discussion

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¶21 MANA argues on appeal that MSA’s claims are moot because granting the relief

requested by MSA would be a meaningless exercise since the Rule 303 amendments did

not create any new rights for CRNAs, but merely clarified the prior rule and the

longstanding and existing practice in Montana. Both the Montana Medical Association

(MMA), an association of physicians practicing in Montana, and the Montana Health

Care Association (MHA), an association of hospitals and health care providers in

Montana, have filed briefs as amici curiae in this case. In its amicus brief, MHA also

claims that because the Governor has already requested that Montana be exempted from

the Medicare/Medicaid requirement that CRNAs be supervised by a physician, MSA’s

request to invalidate the amendments to Rule 303 is moot since invalidating those

amendments cannot result in physician supervision of CRNAs as a prerequisite to

Medicare/Medicaid reimbursement. Thus, MHA contends that this suit has lost all

practical purpose and no longer presents an actual controversy.

¶22 Mootness is a threshold issue which must be resolved before addressing the

underlying dispute. Grabow v. Montana High School Ass’n, 2000 MT 159, ¶ 14, 300

Mont. 227, ¶ 14, 3 P.3d 650, ¶ 14 (citing Shamrock Motors, Inc. v. Ford Motor Co., 1999

MT 21, ¶ 17, 293 Mont. 188, ¶ 17, 974 P.2d 1150, ¶ 17). This Court has consistently

held that “a moot question is one which existed once but because of an event or

happening, it has ceased to exist and no longer presents an actual controversy.” Skinner

v. Lewis and Clark, 1999 MT 106, ¶ 12, 294 Mont. 310, ¶ 12, 980 P.2d 1049, ¶ 12

(quoting State ex rel. Miller v. Murray, 183 Mont. 499, 503, 600 P.2d 1174, 1176

(1979)). Moreover, a case will become moot for the purposes of an appeal “where by a

10
change of circumstances prior to the appellate decision the case has lost any practical

purpose for the parties, for instance where the grievance that gave rise to the case has

been eliminated . . . .” Matter of T.J.F., 229 Mont. 473, 475, 747 P.2d 1356, 1357 (1987)

(quoting 5 Am. Jur. 2d Appeal and Error § 762 (1962)).

¶23 Contrary to MANA’s and MHA’s contentions in this case, even though the

question of whether Montana should opt out of the Medicare/Medicaid requirement that

CRNAs be supervised by a physician may no longer be at issue, not all patients are

Medicare/Medicaid patients. Consequently, this case has not lost all practical purpose for

the parties and the questions of whether CRNAs are authorized by Montana law to

administer anesthesia without physician supervision and whether the BON has the

authority to re-define the scope of practice of CRNAs, still present an actual controversy.

¶24 Furthermore, under the Medicare/Medicaid regulations, the Governor may only

opt out if each of three conditions are met, one of which is that the opt out complies with

state law. Thus, if this Court determines that Montana statutes do not allow CRNAs to

practice independently, one of the conditions underlying the opt out fails.

Issue 1.

¶25 Whether the District Court erred in concluding that the Legislature has authorized
CRNAs to administer anesthesia to patients without physician supervision.

¶26 MSA contends on appeal that the District Court erred in denying its Motion for

Summary Judgment because the Legislature has not authorized CRNAs to administer

anesthesia to patients without physician supervision. MSA asserts that administering

anesthesia is “clearly a form of medical ‘diagnosis’ and ‘treatment’ ” and nurses,

11
including CRNAs, may not engage in diagnosis and treatment pursuant to the Medical

Practice Act (Title 37, Chapter 3 of the Montana Code Annotated). However, MSA has

failed to set forth any provision in Montana law requiring CRNAs to be supervised by a

physician. Instead, MSA relies on numerous Attorney General opinions to support its

position, none of which are on point.

¶27 In addition, the MMA argues in its amicus brief that the level of supervision

anticipated does not involve the surgeon instructing the CRNA on just how anesthesia

should be administered as the surgeon does not exercise control over the “means and

method” used by CRNAs in administering anesthesia. Rather, according to the MMA,

the supervision involves the responsibility of the physician to ensure that the proper

decisions regarding patient care are made in the operating room; that the CRNA is

competent, qualified and mentally alert; and that the CRNA keeps the surgeon informed

of any changes the CRNA may detect in the patient’s status. However, it could be argued

that a surgeon would require the exact same things from an anesthesiologist.

¶28 Under § 37-3-102, MCA, a person may not practice medicine unless that person

possesses a license to practice medicine or is exempt from the licensing requirements. To

that end, § 37-3-102(8), MCA, defining the practice of medicine, provides:

“Practice of medicine” means the diagnosis, treatment, or correction
of or the attempt to or the holding of oneself out as being able to diagnose,
treat, or correct human conditions, ailments, diseases, injuries, or
infirmities, whether physical or mental, by any means, methods, devices, or
instrumentalities. If a person who does not possess a license to practice
medicine in this state under this chapter and who is not exempt from the
licensing requirements of this chapter performs acts constituting the
practice of medicine, the person is practicing medicine in violation of this
chapter.

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However, § 37-3-103(1)(i), MCA, provides that the Medical Practice Act does not apply

to “the rendering of nursing services by registered or other nurses in the lawful discharge

of their duties as nurses . . . under the conditions and limitations defined by law.”

¶29 The “conditions and limitations defined by law” referred to in § 37-3-103(1)(i),

MCA, are set forth in the Nurse Practice Act (Title 37, Chapter 8 of the Montana Code

Annotated). And, the section of the Nurse Practice Act that refers to CRNAs provides, in

pertinent part, as follows:

Advanced practice registered nursing – when professional nurse
may practice. (1) A person licensed under this chapter who holds a
certificate in a field of advanced practice registered nursing may practice in
the specified field of advanced practice registered nursing upon approval
by the board of an amendment to the person's license granting a certificate
in a field of advanced practice registered nursing. The board shall grant a
certificate in a field of advanced practice registered nursing to a person who
submits written verification of certification by a board-approved national
certifying body appropriate to the specific field of advanced practice
registered nursing and who meets any other qualification requirements that
the board prescribes.

Section 37-8-409, MCA (emphasis added).

¶30 Consequently, pursuant to the provisions of §§ 37-3-102(8) and 37-3-103(1)(i),

MCA, nurses are exempt from the Medical Practice Act as long as they render nursing

services in the lawful discharge of their duties as nurses under the conditions and

limitations defined by the Nurse Practice Act. And, more specifically, under § 37-8-409,

MCA, of the Nurse Practice Act, CRNA s may practice in their specified field

(anesthesia) as long as they meet the licensing and qualification requirements for a

CRNA.

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¶31 The Montana Legislature authorized nurse anesthetist practice in 1981 when it

reestablished the Board of Nursing and generally revised the laws relating to licensure of

nurses. Sec. 7, Ch. 248, L. 1981. The Legislature did not see fit at that time to require

that CRNAs be supervised by a physician, nor has the Legislature ever required that

CRNAs be supervised by a physician. The only supervision requirement in § 37-8-409,

MCA, is found at subsection (4) and pertains to individuals granted temporary approval

to practice as a CRNA while they await the results of their national certification

examination. Section 37-8-409(4), MCA. Had the Legislature intended that all CRNAs

be supervised by a licensed physician, it could easily have required so.

¶32 And, in fact, in such instances where the Legislature intended to require

supervision, it has done so expressly. For example, § 37-3-104, MCA, specifically

requires that a medical assistant1 be supervised by a physician or a podiatrist and that the

physician or podiatrist may be held responsible for any acts of or omissions by medical

assistants acting in the ordinary course and scope of their assigned duties. Similarly,

§ 37-8-102(7)(a), MCA (2005), requires that practical nursing services2 mu s t be

“performed under the supervision of a registered nurse or a physician, dentist, osteopath,

or podiatrist authorized by state law to prescribe medications and treatments.” Section

1
Section 37-3-102(6), MCA, defines a “medical assistant” as “an unlicensed allied
health care worker who functions under the supervision of a physician or podiatrist in a
physician’s or podiatrist’s office and who performs administrative and clinical tasks.”
2
Section 37-8-102(7)(a), MCA, defines the “practice of practical nursing” as “the
performance of services requiring basic knowledge of the biological, physical,
behavioral, psychological, and sociological sciences and of nursing procedures.”

14
37-20-301(1)(a), MCA, specifically requires that a physician assistant3 be supervised by a

physician licensed in this state. Moreover, § 37-20-403, MCA, provides that a physician

assistant is an agent of the physician and the duties of the physician assistant are

delegated by the physician. No similar laws establish a supervisory or agency

relationship between a CRNA and a physician.

¶33 Moreover, the Legislature has specifically rejected attempts to bring CRNAs

within the ambit of § 37-3-102, MCA. During the 2003 legislative session,

Representative Daniel Fuchs introduced House Bill No. 590 (HB 590). This bill was

entitled “An Act Providing for Supervision of a Certified Registered Nurse Anesthetist in

the Administration of Anesthesia.” Section 1 of HB 590 specifically required:

Administration of anesthesia by a certified registered nurse anesthetist in
relation to a surgical procedure must be under the supervision of: (1) an
anesthesiologist who is immediately available if needed; (2) a medical
practitioner licensed under Title 37, chapter 3, 5 or 6; or (3) a dentist
licensed under Title 37, chapter 4.

HB 590 was ultimately withdrawn by its sponsor.

¶34 Also during the 2003 legislative session, MSA attempted to amend Senate Bill

No. 331 (SB 331) (“An Act Generally Revising the Laws Applying to the Practice of

Nursing . . . .”) to include a supervision requirement. Both proponents and opponents of

SB 331 testified before a full hearing of the House Human Services Committee.

Following the receipt of various public comments and communications, the committee

3
Section 37-20-401(3), MCA, defines a “physician assistant” as “a member of a health
care team, licensed by the [BME], who provides medical services that may include but
are not limited to examination, diagnosis, prescription of medications, and treatment
under the supervision of a physician licensed by the [BME].”

15
voted 13 to 0 to reject the amendments. The committee chair, Representative Bill

Thomas, wrote a letter to the Governor regarding the proposed amendment wherein he

stated:

As a result of a lengthy hearing, the prominent message was evident;
physician supervision of CRNAs is not in the best interest of Montana. The
committee emphasized that message by unanimously opposing the
amendment requiring supervision.

¶35 In short, the Legislature, the governmental body MSA argues should make any

scope of practice decisions, declined the opportunity to impose on CRNAs the

supervision requirements MSA has requested that this Court create. See Continental Oil

Co. v. Board of Labor Appeals, 178 Mont. 143, 153-54, 582 P.2d 1236, 1242-43 (1978)

(noting that although the 1977 Montana Legislature had an opportunity to amend

Montana’s unemployment compensation statutes to delete the phrase “stoppage of work”

and insert in its place the word “strike,” the Legislature declined to do so. This, the Court

stated, was supportive of the view that the Legislature did not consider the phrase

“stoppage of work” to be synonymous with the word “strike.”); Berry v. KRTV

Communications, Inc., 262 Mont. 415, 428, 865 P.2d 1104, 1113 (1993) (Larson, D.J.,

sitting for Nelson, J., specially concurring) (noting that although the Legislature had

ample opportunity in the six times it had amended § 39-3-406, MCA, since 1981, to

exclude news editors from that statute’s overtime pay provisions, the Legislature declined

to do so, and “[t]he only possible conclusion is that the Legislature has specifically

decided not to exclude news editors in small cities from coverage by the Montana

overtime pay provisions.”).

16
¶36 We have repeatedly stated that we will not insert language into a statute that was

omitted by the drafters. When interpreting statutes, our role “is simply to ascertain and

declare what is in terms or in substance contained therein, not to insert what has been

omitted or to omit what has been inserted.” Section 1-2-101, MCA. “In doing so, we

must pursue the intent of the Legislature and that intent is determined by interpreting the

plain meaning of the language used.” Saari v. Winter Sports, Inc., 2003 MT 31, ¶ 22,

314 Mont 212, ¶ 22, 64 P.3d 1038, ¶ 22 (citing In re R.L.S., 1999 MT 34, ¶ 8, 293 Mont.

288, ¶ 8, 977 P.2d 967, ¶ 8).

¶37 Furthermore, t h i s Court has routinely stated that the interpretation by

administrative boards over statutes under their respective domains should be given

deference. Montana Power Co. v. Public Service Com’n, 2001 MT 102, ¶¶ 23-25, 305

Mont. 260, ¶¶ 23-25, 26 P.3d 91, ¶¶ 23-25; Sleath v. West Mont Home Health Services,

2000 MT 381, ¶ 37, 304 Mont. 1, ¶ 37, 16 P.3d 1042, ¶ 37, cert denied by Dow

AgroSciences LLC v. Sleath, 534 U.S. 814, 122 S. Ct. 40 (2001); Dept. of Revenue v.

Kaiser Cement Corp., 245 Mont. 502, 507, 803 P.2d 1061, 1064 (1990). In this case, not

only has the BON, the administrative board regulating the practice of CRNAs, declared

that physician supervision is not required for CRNAs, but the BME, the regulatory board

responsible for proscribing the unlicensed practice of medicine, concluded that physician

supervision of CRNAs is not required because nurse anesthetist practice is not the

practice of medicine.

¶38 Accordingly, we hold that the District Court was correct in concluding that the

Legislature has authorized CRNAs to administer anesthesia to patients without physician

17
supervision.

Issue 2.

¶39 Whether administrative rules adopted by the BON which purport to allow CRNAs
to administer anesthesia to patients without physician supervision comply with the
Montana Constitution and MAPA.

¶40 The District Court determined that because the Legislature has not authorized the

BON to promulgate rules defining the scope of practice of CRNAs, the BON does not

have the authority to pass any rule that may go beyond what is set forth in the statutes. In

this case, however, because the court had already determined that Montana law does not

require physician supervision of CRNAs, it concluded that the BON’s amendments to

Rule 303 did not change or re-define the scope of practice of CRNAs. Hence, the court

granted MANA’s Motion for Partial Summary Judgment and denied MSA’s Motion for

Summary Judgment.

¶41 MSA now contends on appeal that the District Court erred in denying its Motion

for Summary Judgment because the BON’s amendments are an “executive usurpation of

legislative power by an unelected executive body.” Similarly, the MMA argues in its

amicus brief that the BON did not have the authority to adopt an administrative rule

allowing CRNAs to practice independently of physician supervision.

¶42 MANA asserts on the other hand that prior to the amendments to Rule 303, the

rule did not contain any requirement for physician supervision of CRNAs, thus the

amendments to the rule did not re-define the scope of practice of CRNAs, nor did they

create any new authorization for CRNAs to administer anesthesia without physician

supervision.

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¶43 An administrative agency can exercise only those powers specifically conferred on

it by the Legislature. Bell v. Dept. of Licensing, 182 Mont. 21, 22, 594 P.2d 331, 332

(1979).

The courts have uniformly held that administrative regulations are
out of harmony with legislative guidelines if they: (1) engraft additional
and contradictory requirements on the statute; or (2) if they engraft
additional, noncontradictory requirements on the statute which were not
envisioned by the legislature.

Bell, 182 Mont. at 23, 594 P.2d at 333 (internal citations and quotation marks omitted).

¶44 To that end, § 37-1-131(1), MCA, provides that each board within the Department

of Labor and Industry shall set and enforce standards and rules governing the licensing,

certification, registration and conduct of the members of the particular profession or

occupation within its jurisdiction.

¶45 The “scope of practice” for CRNAs in Montana, as established by the Legislature,

is the breadth of the professional practice for which the CRNA is licensed. It entails the

administration of anesthesia services by duly qualified and certified professional nurses

licensed by the BON in that advanced practice specialty field. The license is the CRNAs

authorization to practice in that specialty field and is evidence of the licensee’s

competence to do so.

¶46 A CRNA may not practice outside the “scope” of his or her license by, for

example, providing nurse midwifery services to patients or by acting as a nurse

practitioner. Nor may a CRNA practice medicine by performing surgery on a patient.

But a licensed CRNA is authorized under § 37-8-409(1), MCA, to practice in the nurse

19
anesthetist field of advanced practice registered nursing by providing anesthesia services

to patients.

¶47 The cases cited in MSA’s brief in support of its position that CRNAs are

practicing outside of their scope of practice are not on point. All of these cases are

criminal cases wherein the individuals were prosecuted, not for practicing outside the

scope of their license, but rather, for practicing without a license or using a title reserved

to the holders of a particular license. There are no allegations in this case of any

particular CRNA performing any particular practice or procedure outside the scope of

what the Legislature has allowed and what the CRNA’s license authorizes them to

perform.

¶48 We agree with the District Court that the Legislature has not provided the BON

with the authority to re-define or expand the scope of practice established by the CRNA’s

enabling legislation. We also agree with the District Court that the BON’s amendments

to Rule 303 did not re-define or expand the scope of practice of CRNAs. Instead,

amending the statute to include the phrase “administrative and/or collaborative” merely

clarified the existing practice of CRNAs in Montana.

¶49 MSA also contends that the BON violated MAPA when it amended Rule 303

because it failed to provide a statement of reasonable necessity as required by § 2-4-305,

MCA, and it improperly attempted to adopt by reference the AANA guidelines.

¶50 Section 2-4-305(6)(b), MCA, provides, in pertinent part:

The agency shall also address the reasonableness component of the
reasonable necessity requirement by, as indicated in 2-4-302(1) and
subsection (1) of this section, stating the principal reasons and the

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 rationale for its intended action and for the particular approach that it takes
in complying with the mandate to adopt rules. Subject to the provisions of
subsection (8), reasonable necessity must be clearly and thoroughly
demonstrated for each adoption, amendment, or repeal of a rule in the
agency's notice of proposed rulemaking and in the written and oral data,
views, comments, or testimony submitted by the public or the agency and
considered by the agency. A statement that merely explains what the rule
provides is not a statement of the reasonable necessity for the rule.
[Emphasis added.]

In its June 3, 2002 “Notice of Public Hearing on Proposed Amendment,” the BON

provided the following reason for amending Rule 303:

REASON: Section 37-8-202, MCA, gives the [BON] the authority to
“define the educational requirements and other qualifications applicable to
recognition of advanced practice registered nurses.” The rule is
implementing the same statute. The [BON] proposed the rule amendment
because of a meeting between the [BON] and the [Board of] Pharmacy.
The Board of Pharmacy believes that when an anesthetist performs
anesthesia, s/he is prescribing an anesthetic. Because the nurse anesthetist
is prescribing, the CRNA must have prescriptive privileges for the [BON]
to assure the public safety. Prescribing involves choosing the appropriate
drug for the individual patient, determining the therapeutic dose,
administering the drug, and being alert for complications or adverse
reactions while the patient is under the influence of the drug. Additionally,
many CRNAs practice in areas other than anesthesia, such as pain control.
The current rule for CRNAs makes prescriptive authority optional.
Approximately 20% of all CRNAs have prescriptive privileges in Montana.
For the last two years, the [BON] encouraged all CRNAs to apply for
prescriptive privileges voluntarily. The rule will affect all CRNAs and
future CRNAs in Montana. Currently, Montana has 141 CRNAs, and
approximately 116 of them will need to apply for prescriptive authority
when the rule is adopted. The [BON] will allow a period of nine months
for those who do not have prescriptive authority to apply and receive
approval.

Nowhere in this statement does the BON refer to the independent practice of CRNAs.

Instead, it deals solely with the prescriptive authority or lack thereof of CRNAs.

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¶51 The BON readily admits that this statement was defective and thus did not fully

comply with § 2-4-305(6)(b), MCA, but the BON argues that since these amendments to

Rule 303 were not substantive, compliance with § 2-4-305(6)(b), MCA, was not

necessary. The BON states that they believed the substantive change in Rule 303 was the

addition of a new subsection requiring CRNAs to have prescriptive authority. Hence,

although the BON did indicate in their “Notice of Public Hearing on Proposed

Amendment” that the language regarding the independent practice of CRNAs would be

added to Rule 303, the statement of reasonable necessity accompanying the proposed

amendments to Rule 303 only referred to the reasons for requiring CRNAs to have

prescriptive authority.

¶52 MAPA provides: “A rule is not valid unless notice of it is given and it is adopted

in substantial compliance with 2-4-302, 2-4-303, or 2-4-306 and this section . . . .”

Section 2-4-305(7), MCA (emphasis added). In In re Rudd’s Estate, 140 Mont. 170, 177,

369 P.2d 526, 530 (1962), this Court stated that “substantial compliance means only that

a court should determine whether the statute has been followed sufficiently so as to carry

out the intent for which it was adopted.” The intent or purpose of MAPA is “to give

notice of governmental action and the opportunity to express one’s opinion regarding that

action.” House Joint Resolution No. 2 (adopted by the 49th Legislature of the State of

Montana) (March 9, 1985).

¶53 In this case, not only did MSA have notice of the BON’s intent to amend Rule

303, representatives of MSA and MMA were allowed to observe and participate in the

amendment process by attending the July 3, 2002 public hearing and by voicing their

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objections to the amendments to Rule 303. The BON’s “Notice of Amendment”

regarding Rule 303, certified to the Secretary of State on November 18, 2002, indicated

that the following individuals appeared at the public hearing and voiced their objections

to the amendments: Susan Good for MSA, the Montana Neurosurgeons, and the

Montana Orthopedic Society; Mona Jamison for MSA; Patrick Melby for MMA; and

G. Brian Zins for MMA. Consequently, the intent for which MAPA, and more

specifically § 2-4-305(6), MCA, was adopted, was sufficiently carried out in this case.

¶54 In addition, in Count I of its Amended Complaint, MSA argued that the BON

violated Montana’s open meeting laws by failing to provide sufficient notice of its

meetings wherein the amendments to Rule 303 were to be discussed, and by failing to

allow the public to participate in the rulemaking process by attending those meetings.

However, after it was shown that MSA did receive notice of the meetings and actually

had representatives at the meetings who voiced their objections to the amendments, MSA

requested that this Count be dismissed.

¶55 Therefore, although the BON did not fully comply with § 2-4-305(6)(b), MCA, in

that it failed to provide a statement of reasonable necessity regarding the addition of the

phrase “independent and/or collaborative” to Rule 303, the B O N “substantially”

complied by putting MSA and the public in general on notice of the Rule 303

amendments and thereby permitted observation of and participation in the amendment

process.

¶56 We also are not persuaded by MSA’s argument that the BON violated MAPA

because it improperly attempted to adopt by reference the AANA guidelines. The AANA

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guidelines had been adopted long before the amendments to Rule 303. The amendments

merely substituted a website address for a street address. That portion of Rule 303,

before and after the amendment, states as follows:

A nurse anesthetist is authorized to perform procedures delineated in the
American Association of Nurse Anesthetists Guidelines for Nurse
Anesthesia Practice. Copies of the guidelines may be obtained from the
American Association of Nurse Anesthetists, 216 Higgins Road, Park
Ridge, Illinois 60068, (708) 692-7050 www.aana.com. [Underlined
language added and lined through language omitted.]

¶57 A plain reading of the language in the Rule that “copies of the guidelines may be

obtained from” the AANA does not state that the guidelines are available on the website

itself, but that the guidelines can be obtained by contacting the AANA at the website

address and requesting a copy of the guidelines.

¶58 Accordingly, we hold that the amendments to Rule 303 did not re-define or

expand the scope of practice of CRNAs, nor did they violate MAPA.

¶59 Affirmed.

/S/ JAMES C. NELSON

We concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE

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