On April 7, 2017, the Florida Board of Medicine once again heard a Petition for Declaratory Statement addressing the issue of anesthesiologist assistant (AA) scope of practice. Even though the AA statute states that an AA may “assist” an anesthesiologist in performing epidural and spinal anesthesia, the Board concluded that AAs can perform such procedures under the direct supervision of an anesthesiologist.
A declaratory statement reflects the board’s interpretation of a statute as it applies to the petitioner’s particular set of circumstances. A declaratory statement is intended to apply only to the petitioner. However, declaratory statements are often referred to by other licensees as an indication of how the board interprets a particular law. FANA filed a motion to intervene in the 2017 AA declaratory statement, and the Board granted our motion.
The issue in the 2017 AA declaratory statement was nearly identical to the issue in the petition rejected by the Board in 2015—whether AAs can perform epidurals. Specifically, the 2017 Petition stated that the Petitioner, a Tallahassee anesthesiologist, would like to employ anesthesiologist assistants to assist in providing epidural and spinal anesthetic procedures to patients in hospitals and ambulatory surgery centers, under the following protocol:
- The supervising anesthesiologist would personally examine each and every patient and order the medication to be administered;
- The supervising anesthesiologist would directly supervise the administration of the medication by remaining in the operating or obstetrical suite (not necessarily in the same room) when the epidural or spinal anesthetic procedure is performed by the anesthesiologist assistant;
- The supervising anesthesiologist would verify the training and capability of the anesthesiologist assistant to provide such services.
- The above precautions would be included in the protocol filed by the supervising anesthesiologist with the Board of Medicine in accordance with 458.3475(2), Florida Statutes.
While section 458.3475, Florida Statutes, states that an AA can “perform” certain acts, subsection 458.3475(3)(a)7 provides that an AA may “assist the supervising anesthesiologist with the performance of epidural anesthetic procedures and spinal anesthetic procedures.” The Petitioner argued that in the context of this statute, “assist” meant that the AA could “perform” epidural anesthetic procedures and spinal anesthetic procedures. While this logic was dismissed by the Board in 2015, the current Board voted this time to approve the Declaratory Statement.
Legal Counsel for FANA appeared before the Board and argued in opposition to the Petition. We opposed the Petition on several grounds. First, the Petition was legally insufficient as a matter of law. Section 120.565, Florida Statutes, allows a substantially affected person to seek a declaratory statement regarding an agency’s opinion as to “the applicability of a statutory provision…as it applies to the petitioner’s particular set of circumstances.” In this case, the Petition did not list a set of circumstances that were particular to the Petitioner, but rather circumstances that apply universally to all AAs. The “circumstances” listed in the Petition are merely a recitation of the supervision requirements in the AA statute. Although a declaratory statement can affect more than one person, it cannot apply to an entire class of people, as this Petition appears to do.
Second, in our opinion the reasoning by the Petitioner was contrary to every applicable rule of statutory interpretation. The Board should not depart from the plain meaning of the term “assist,” especially in light of the decision by the Florida Legislature to use the terms “perform” and “assist” within the same statutory subsection. Clearly, distinct meanings were intended. Notably, while Board counsel briefly addressed our arguments concerning statutory interpretation, the Board members focused their discussion on the training and education of AAs, a topic that was not relevant to a determination in this case. The training and education requirements for AAs are set forth in the AA statute and should have had no bearing on the narrow issue concerning the meaning of “assist.”
Ultimately, the Board of Medicine decided that the language in the AA statute stating that an AA may “assist the supervising anesthesiologist with the performance of epidural anesthetic procedures and spinal anesthetic procedures” means that an AA may perform epidural anesthetic procedures and spinal anesthetic procedures under the “direct supervision” of an anesthesiologist. Since “direct supervision” for purposes of this section means the anesthesiologist must be in the same surgical or obstetrical “suite,” an AA may not only perform these acts, but he or she may do so while the anesthesiologist is in another room.
An order memorializing the Board’s decision will be published in the near future. The order may be appealed directly to a Florida District Court of Appeal. The FANA Board of Directors unanimously voted to appeal the declaratory statement order when it is published. However, while the appeal is pending the declaratory statement will remain in effect.
Further updates on the declaratory statement will be provided as the appeal progresses.