Montana Administrative Register Notice 37-681 No. 14   07/24/2014    
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In the matter of the amendment of ARM 37.106.514 pertaining to the removal of references to anesthesiologist assistants in outpatient centers for surgical services










TO: All Concerned Persons


1. On August 23, 2014, the Department of Public Health and Human Services proposes to amend the above-stated rule.


2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on August 14, 2014, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena MT 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.


3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:


            37.106.514 ANESTHESIA RISK AND EVALUATION (1) and (2) remain the same.

            (3) Anesthesia must be administered only by:

            (a) remains the same.

            (b) a physician qualified to administer anesthesia; or

            (c) a certified registered nurse anesthetist (CRNA);.

            (d) an anesthesiologist assistant is a person who:

(i) works under the direction of an anesthesiologist;

(ii) is in compliance with all applicable requirements of Montana state law, including any licensure requirements the state of Montana imposes on nonphysician anesthetists; and

(iii) is a graduate of a medical school-based anesthesiologist's assistant educational program that:

(A) is accredited by the Committee on Allied Health Education and Accreditation; and

(B) includes approximately two years of specialized basic science and clinical education in anesthesia at a level that builds on a premedical undergraduate science background.

            (e) an anesthesiologist assistant may administer anesthesia when under the direct supervision of an anesthesiologist. The anesthesiologist must be immediately available if needed, meaning:

            (i) the supervising anesthesiologist is physically present in the facility; and

            (ii) is prepared to immediately conduct hands on intervention if needed.

            (f) a supervised trainee in an approved educational program under the supervision of a licensed anesthesiologist; or

            (g) a trainee who is a physician in training to be an anesthesiologist in a recognized graduate medical education program, or a student in a recognized nurse anesthesia or anesthesiologist assistance education program may administer anesthesia when supervised by the physician performing the operation.

            (4) remains the same.


AUTH: 50-5-103, MCA

IMP: 50-5-103, MCA




The Department of Public Health and Human Services (the department) is proposing an amendment to ARM 37.106.514(3)(d). On June 6, 2013, the department published MAR Notice No. 37-637 pertaining to the public hearing on the proposed adoption of licensure requirements for outpatient centers for surgical services.


The department adopted the proposed rules in MAR Notice No. 37-637, including ARM 37.106.514. In drafting the original rules, the department included language relevant to "anesthesiologist assistants" found in ARM 37.106.514(3)(d). Approximately one week after the official public comment period was over, the department received comment concerning this language.


The original rule included language regarding the need for compliance with all applicable requirements of Montana state law, including any professional licensure requirements, so it was felt that the language as originally written met the legal threshold and the rule was adopted as written. However, due to ongoing concerns about the legalities regarding the licensure of anesthesiologist assistants in Montana, the department proposes to remove from this rule, all references to anesthesiologist assistants and their ability to administer anesthesia in outpatient centers for surgical services.


Fiscal Impact:


There is no fiscal impact due to this rulemaking.


5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Kenneth Mordan, Office of Legal Affairs, Department of Public Health and Human Services, P.O. Box 4210, Helena MT 59604-4210, no later than 5:00 p.m. on August 21, 2014. Comments may also be faxed to (406) 444-9744 or e-mailed to dphhslegal@mt.gov.


6. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Kenneth Mordan at the above address no later than 5:00 p.m., August 21, 2014.


7. If the agency receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register.  Ten percent of those directly affected has been determined to be "0" persons based on the fact there are no "anesthesiologist assistants" practicing in Montana.


8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.


9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.


10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.


11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.


/s/ Susan Callaghan                                               /s/ Richard H. Opper                                   

Susan Callaghan                                                   Richard H. Opper, Director

Rule Reviewer                                                       Public Health and Human Services


Certified to the Secretary of State July 14, 2014.


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