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New Jersey Superior Court Upholds Joint Protocol for APN/As

Pfeifer, Gail M. MA, RN, News Director

AJN, American Journal of Nursing: April 2013 - Volume 113 - Issue 4 - p 13
doi: 10.1097/01.NAJ.0000428725.31395.4d
In the News

New state senate and house bills could eliminate that requirement.

In New Jersey, certified registered nurse anesthetists—called advanced practice nurses/anesthesia (APN/As) in that state—are still subject to a joint protocol with anesthesiologists, according to a recent superior court decision affirming the provisions of the state's Department of Health and Senior Services (DHSS). The decision ends a three-year appeal by the New Jersey Association of Nurse Anesthetists (NJANA).

The appeal challenged the validity of DHSS regulations that “require the physical presence of a collaborating anesthesiologist during induction, emergence, and critical change in status when an [APN/A] administers general or major regional anesthesia, conscious sedation, or minor regional blocks in a hospital,” according to the court's decision on December 12, 2012 (still unpublished as of this writing). By requiring the physical presence of an anesthesiologist, the NJANA claimed that the DHSS had exceeded its authority.

In a subsequent appeal in 2011, the NJANA also claimed that such regulations conflict with the state's Advanced Practice Nurse Certification Act of 1992 and were therefore invalid. State senator Joseph Vitale concurred with the NJANA in an amicus brief, adding that the DHSS regulations were “contrary to the statute's legislative intent to broaden the scope of practice for APNs as a means to reduce health care costs.” The American Association of Nurse Anesthetists (AANA) also told the court that “the delivery of anesthesia when administered by a nurse anesthetist is, in fact, the proper practice of nursing,” according to attorney Mark J. Silberman of Duane Morris LLP in Chicago, who argued on behalf of the AANA. Despite such appeals, the court decided that “the appellant failed to overcome the presumption of validity of the regulation.”

So what is the next step for APN/As in the state? “Clearly, what needs to happen—and appears to be happening everywhere in the country except New Jersey—is the removal of unnecessary, unproductive, and expensive scope-of-practice restrictions on essential health care providers who aren't [physicians or osteopaths]; in this case the APN/A,” Robert Shearer, president of the NJANA, told AJN.

Although some inroads are being made in this direction, the path may not be smooth.

APNs in New Jersey include NPs, clinical nurse specialists, and APN/As, all of whom are required to provide care under a joint protocol with a physician. In November 2012, Senator Vitale introduced S 2354, which, if enacted, would eliminate the requirement that a joint protocol be in place before an APN may prescribe medications. The bill refers to the Institute of Medicine finding that restrictive collaboration requirements erect barriers to nursing practice and patient access to primary care. A companion bill introduced in the house by Assemblywoman Nancy Munoz aims to remove the joint protocol requirement as well.

Even if those bills are passed by the legislature, however, “Removing the joint protocol altogether does not mean those [DHSS] regulations will change,” explains Patricia Barnett, a nurse and attorney and chief executive officer of the New Jersey State Nurses Association/Institute for Nursing. The joint protocol agreement is a collaborative arrangement—not technically a supervisory arrangement—that requires the physician and APN to renew the agreement annually and perform a chart review. That protocol differs from the DHSS regulation on anesthesia administration in hospital and outpatient settings, where many nurse anesthetists work.

“This is not a simple situation, and there are no simple answers,” says Barnett. “The question is, how do we move forward?”

Shearer adds, “The most important thing APN/As can do is continue providing excellent anesthesia care, day in and day out, on behalf of our patients.”—Gail M. Pfeifer, MA, RN, news director

© 2013 Lippincott Williams & Wilkins, Inc.