¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. What does the phrase "timely onsite consultation" as used in 59 O.S.2011, § 567.3a(10) of the Oklahoma Nursing Practice Act mean with regard to the actual physical presence of the supervising practitioner of a Certified Registered Nurse Anesthetist ("CRNA"), i.e must he or she be onsite in the facility during the administration of anesthesia, or is it enough that the supervising practitioner be capable of being onsite in the facility in a timely manner?
2. Must the supervising practitioner of a CRNA be available for timely onsite consultation throughout all stages of the administration of anesthesia?
3. Does the Oklahoma Nursing Practice Act permit the Board of Nursing to draw a distinction between analgesia and anesthesia in terms of the level of supervision of the CRNA required by the supervising practitioner?

¶1 The Oklahoma Nursing Practice Act ("Act"), 59 O.S.2011, §§ 567.1 - 567.19, creates the Oklahoma Board of Nursing ("Board") and establishes the scope of practice for nurses. The Board is charged generally with:

59 O.S.2011, § 567.2.

¶2 Title 59 O.S.2011, § 567.3a(5) of the Act categorizes and describes the various types of "Advanced Practice Registered Nurse[s]" authorized to practice in Oklahoma. The Certified Registered Nurse Anesthetist ("CRNA") is one such Advanced Practice Registered Nurse. Id. § 567.3a(5)(e). Subsection 567.3a(10) defines a CRNA and sets out the statutory scope of practice of a CRNA:

¶3 "The fundamental rule of statutory construction is to ascertain and give effect to legislative intent and that intent is first sought in the language of the statute." YDF, Inc. v. Schlumar, Inc., 136 P.3d 656, 658 (Okla. 2006). We therefore, limit our analysis to the text of the statute.

¶4 Your opinion request letter¹ indicates that it comes, at least in part, in response to a previous Attorney General Opinion, 08-26² Attorney General Opinion 08-26 addressed questions related to the scope of practice for CRNAs as provided in the above quoted subsections of the Act³

¶6 It is clear from a plain text reading that the term "supervision," as contemplated in Section 567.3a(10), is something broader than the more specific, practitioners duty to be "timely available for onsite consultation" with the CRNA. Though not thoroughly defined in the Act, the "supervision" of the CRNA by the practitioner is the foundational requirement of the ability of the CRNA to perform the tasks contemplated in 59 O.S.2011, § 567.3a(10)(a) and in subsection 567.3a(10)(b). As required by these subsections, the practitioner is under a duty to supervise⁴ the CRNA. "Supervision" means "the act, process, or occupation of supervising." Webster's Third International Dictionary 2296 (3d ed. 1993). To "supervise" means to oversee or direct work. Id. "Oversight" means superintendence, watchful care, supervision. Id. at 1610. "In absence of a contrary definition, words are to have the same meaning as that attributed to them in ordinary and usual parlance." Ashikian v. State ex rel. Okla. Horse Racing Comm'n, 188 P.3d 148, 156 (Okla. 2008). Therefore, for purposes of subsection 567.3a(10), supervision means oversight by a practitioner who is responsible for the work of the CRNA. But what does that duty to supervise require, or in other words, what level of supervision of the work of the CRNA is required of the practitioner?⁵

¶7 In the case of Jackson v. Oklahoma Memorial Hospital, 909 P.2d 765, 774 (Okla. 1995), we find guidance for the proposition that regardless of the expertise of the professional being supervised by the physician, (at issue in Jackson was whether the health-care provider under supervision was a resident or an intern), the physician responsible for such supervision owes the patient a duty of reasonable care in that supervision. Among the factors that affect such standard of care are: "(a) the complexity of the medical or surgical procedure being carried out, (b) the level of training, skill, and knowledge the resident or intern [or other health professional] possesses, and (c) any written guidelines and procedures prescribed by the health-care facility." Id. The standard of care, therefore, requires that the supervising practitioner be competent to judge when that supervision requires his or her physical presence for consultation, depending upon the patient's medical needs and circumstances.

¶8 Your first question concerns the meaning of the phrase "timely onsite consultation" as the phrase is used in the definition of CRNA. The text at 59 O.S.2011, § 567.3a(10) specifies who must consult: the CRNA and the supervising practitioner. It specifies where the consultation must be, onsite. It unequivocally specifies that conditions must exist such that timely onsite consultation [of the CRNA with the supervising practitioner] is available. It does not provide an explicit definition of the meaning of "timely onsite consultation." Our analysis therefore, requires that we consult the rules of statutory construction.

¶9 "The fundamental rule of statutory construction is to ascertain and give effect to legislative intent." Rogers v. Quiktrip Corp., 230 P.3d 853, 859 (Okla. 2010). "Further, words in a statute are given their plain and ordinary meaning (just as with constitutional provisions), except when a contrary intention plainly appears and the words of a statute should generally be assumed to be used by the law-making body as having the same meaning as that attributed in ordinary and usual parlance." Fent v. Okla. Capitol Imp. Auth., 984 P.2d 200, 213 (Okla. 1999) (citations omitted). We turn then to the plain and ordinary meaning of the phrase at issue, "timely onsite consultation."

¶11 That the consultation with the supervising practitioner occur "onsite" is expressly required, both in 59 O.S.2011, § 567.3a(10)(a) and in subsection 567.3a(10)(b). "Onsite" in common and ordinary usage means "taking place or situated on a particular site or premises." Oxford Dictionaries, available at http://oxforddictionaries.com/definition/american_english/on-site?region=us&q=onsite (last visited Nov. 26, 2012). Onsite, in the context of this statute, necessarily means that the consultation⁶ with the CRNA must take place where the patient is receiving treatment or having a medical procedure.

¶12 This office opines only on "questions of law." 74 O.S.2011, § 18(b)(A)(5). We, therefore, limit our answer to the plain text of the statute. The Legislature established a requirement that the supervising practitioner be timely available to consult with the CRNA onsite, as warranted by the medical conditions and circumstances. The Legislature did not presume to dictate specific medical standards, beyond those stated on the face of the statute. What constitutes "timely onsite consultation" in any given medical scenario implicates medical judgment. The Legislature established a duty for the physician to supervise, including the duty to be "timely" available to consult with the CRNA and provided that the consultation must be "onsite" when needed or appropriate under the existing conditions. The Legislature left the responsibility to determine when the consultation is timely under conditions that exist in any particular medical situation to those exercising professional medical judgment. "[I]n certain fields and in certain respects the public interest is better served by delegating a large part of detailed lawmaking to the expert administrator, controlled by policies, objects and standards laid down by the legislature, rather than by having all details spelled out through the traditional legislative process." Adams v. Prof'l Practices Comm'n, 524 P.2d 932, 934 (Okla. 1974) (quoting Boller Beverages, Inc. v. Davis, 183 A.2d 64, 71 (N.J. 1962)). In this respect, medical professionals, in the exercise of their professional judgment, may establish requirements for what constitutes "timely onsite consultation," to be applied in given medical situations. Based on the particular facts and circumstances of any particular medical situation, this may mean that the supervising practitioner must be onsite at all times during the supervision in order to be available to provide the required timely and onsite consultation, while at other times particular facts and circumstances may dictate that the supervising practitioner is available for the required timely and onsite consultation even though supervising from offsite.

¶13 You ask, in effect, what the Legislature intended by the phrase "administers anesthesia" as it relates to the period of time when the supervising practitioner must be "timely available onsite for consultation." In other words, does the statute require that the supervising practitioner be onsite for consultation throughout all the stages of the administration of anesthesia? Your opinion request letter provides examples of the stages of administration of anesthesia, which include induction, maintenance, emergence, and post anesthesia care. See n. 1. Title 59 O.S.2011, § 567.3a(10) is silent as to whether the supervising practitioner has to be available for onsite consultation for the entire duration, or throughout all recognized stages of the administration of anesthetic services.

¶14 The Act does not expressly state what activities fall under the umbrella of "administer[ing] anesthesia." The Legislature did not define "administration of anesthesia" in the Act. Neither did it prescribe the phases of the administration of anesthesia, although professional, medical standards of anesthesia administration are presumed. As stated in the Nursing Practice Act, "Practice is based on understanding the human condition across the human lifespan and understanding the relationship of the individual within the environment. This practice includes execution of the medical regime including the administration of medications and treatments prescribed by any person authorized by state law to so prescribe[.]" 59 O.S.2011, § 567.3a(2) (emphasis added).

¶16 Title 59 O.S.2011, § 567.3a(10)(b), additionally requires that a CRNA be supervised such that timely onsite consultation is available when the CRNA is ordering, selecting, obtaining and administering legend drugs, Schedules II through V controlled substances, devices, and medical gases (to the extent Board has adopted applicable rules). Because this level of supervision is required for these tasks regardless of whether the involvement of the drug used constitutes "administering anesthesia," we conclude that, under applicable medical standards, the supervising practitioner is required to be available for timely onsite consultation with the CRNA, 1) during "anesthesia time" and 2) whenever one of the services set forth in Section 567.3a(10)(b) services is performed. Thus, the supervising practitioner must be available for timely onsite consultation at all recognized stages of the administration of anesthetic services.

¶17 Anesthesia is not defined in the Nursing Practices Act, see 59 O.S.2011, §§ 567.1 through 567.19, or in any existing rules of the Nursing Board. Your third question, in effect, is whether it is permissible under the Act to break down anesthesia into the subcategories of anesthesia and analgesia, and to require different levels of supervision of CRNAs depending on whether they are administering anesthesia or analgesia. As you note, the United States Department of Health and Human Services, Center for Medicare and Medicaid Services, permits participating hospitals to develop policies to distinguish between anesthesia and analgesia, and to set lower supervision requirements for the administration of analgesia. See n. 1. You further note that some interested persons or groups have urged the Board to draw such distinctions in rule or otherwise. Id. At issue, then, is whether the Act permits or authorizes the Board to do so.

¶19 We understand that the Interpretive Guidance to the Code of Federal Regulations from the Department of Health and Human Services Centers for Medicare and Medicaid Services ("CMS") provides a definition of anesthesia broken down into six different levels ranging from general anesthesia at the deepest end to topical or local anesthesia at the shallowest end.⁷ And further, that this guidance includes a discussion of the difficulty in drawing a line between anesthesia and analgesia because of the fact that analgesia may turn into anesthesia in some patients, depending on the person, the dosage, and the circumstances. See id. n.7. The guidance further discusses the particular difficulty in drawing a distinction in the case of moderate verses deep sedation and in the case of labor epidurals. Id. n.7. That being said, the guidance clarifies that the direct supervision requirements of 42 C.F.R. § 482.52 do not apply to "the administration of topical or local anesthetics, minimal sedation, or moderate sedation."⁸ With respect to hospitals with Medicare and Medicaid patients, each is authorized under this guidance, to determine for its own purposes which obstetrical practices and procedures are "analgesia" and which are "anesthesia," applying national standards⁹ Id.

¶20 "In absence of a contrary definition, words are to have the same meaning as that attributed to them in ordinary and usual parlance." Ashikian, 188 P.3d at 156. Anesthesia is defined as the "loss of sensation and usu[ally] of consciousness without loss of vital functions artificially produced by the administration of one or more agents that block the passage of pain impulses along nerve pathways to the brain." Webster's Third International Dictionary 81 (3d ed. 1993). Analgesia is defined as "insensibility to pain without the loss of consciousness." Id. at 76. As your Legal Board Advisor stated,¹⁰ the similarity of these definitions underscores the difficulty in drawing a bright line distinction between anesthesia and analgesia.

¶21 The Oklahoma Nursing Practice Act makes no such distinctions. It speaks of anesthesia as one broad category and makes no attempt to define it. If we assume that analgesia is a subcategory of anesthesia, by the plain reading of the statute, we find that the Legislature intended to subject even the application or administration of analgesia to the supervision standard in subsection 567.3a10(a) and (b). The statute effectively permits no differentiation in supervision level between subcategories of anesthesia. "When considering the construction to be given a statute, the primary consideration is to ascertain the legislative intent, and this must be determined from the language used. And, the general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act." Stemmons, Inc. v. Universal C.I.T. Credit Corp., 301 P.2d 212, 216 (Okla. 1956).

Id. (emphasis added). The CRNA may administer local or topical anesthetics without regard to the supervision standard required by subsections 567.3a(10)(a) and (b). The maxim of statutory interpretation expressio unius est exclusio alteriu, means that the inclusion of one thing is the exclusion of another. The canon is applicable only where in the natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended for inclusion in the statute. Patterson v. Beall, 19 P.3d 839, 845 (Okla. 2000); Greenberg v. Wolfberg, 890 P.2d 895, 906 n.54 (Okla. 1995). In other words, if the Legislature had intended to permit the Board to define anesthesia, by breaking it down into levels or categories similar to those described in the CMS, and then designating which are anesthesia and which are analgesia, permitting a varying or different levels of supervision as between them, it would have so expressed.

¶23 The Board is authorized by its enabling act "to adopt and revise rules, not inconsistent with the provisions of the Oklahoma Nursing Practice Act, as may be necessary to enable it to carry into effect the provisions of the act." 59 O.S.2011, § 567.4(F). Further, 59 O.S.2011, § 567.2(A)(3), states "[t]he Board shall promulgate rules to identify the essential elements of education and practice necessary to protect the public." However, this "does not include authority to make rules which extend their powers beyond those granted by statutes." See Adams, 524 P.2d at 934. It is, therefore, not within the Board's power to adopt an interpretation, definition, or rules relating to what constitutes "anesthesia" and/or "analgesia," in such a way so as to allow less supervision than is required by statute.

¹ See letter from Kim Glazier, RN, M.Ed., Executive Director, Oklahoma Board of Nursing, to Scott Pruitt, Attorney General of the State of Oklahoma (Apr. 26, 2012) (on file with author).

² Following the issuance of this Opinion, on April 9, 2010, the Legislature enacted into law the "Oklahoma Interventional Pain Management and Treatment Act," (2010 Okla. Sess. Laws ch. 67, § 1 (codified at 59 O.S.Supp.2010, § 650)) which makes it unlawful to practice or offer to practice interventional pain management unless such individual is a licensed MD or DO. Id. § 650(C). This legislation does not prohibit a nurse anesthetist from administering a lumbar intra-laminar epidural steroid injection or peripheral nerve blocks if requested by and under the supervision of a physician (MD/DO) and under conditions in which timely on-site consultation by such physician is available. Id. § 650(D). This Act prohibits nurse anesthetists from operating a freestanding pain management facility without supervision of a physician who is board-certified in interventional pain management or its equivalent. Id. § 650(E).

³ The first question asked in A.G. Opin. 08-26 was whether Secion 567.3a(10)a, which permits a CRNA to administer anesthesia under supervision of a medical doctor (or listed practitioner) in a situation in which timely onsite consultation is available, applies to circumstances other than the perioperative or periobstetrical period, such as the management of chronic pain. Id. at 175. The Opinion stated that the CRNA may administer anesthesia under supervision of one of the listed practitioners when timely onsite consultation is available from the physician in circumstances other than the perioperative or periobstetrical period, such as pain management clinic, under condition that the CRNA may not order, select or obtain the drugs and devices. Id. at 182. The answer to the second question focused upon Section 567.3a(10)(b) and the limitation placed upon the additional authority granted to the CRNA under Section 567.3a(10)(b), to "order, select, obtain and administer legend drugs." Id. The Opinion concluded that the CRNA cannot exercise the additional authority granted in a setting that does not involve the perioperative or periobstatrical period. such as a pain management clinic. Id. The third question asked whether a medical doctor who acts as a CRNA's supervising physician, or who refers a patient to a CRNA, aids and abets in the unlicensed practice of medicine if the CRNA administers anesthesia for pain management purposes outside the perioperative or periobstetrical period. The answer was found to be "no," because a CRNA who practices according to the requirements of his or her profession (although there is overlap between the practice of nursing and that of medicine) and the Nursing Practice Act, is not engaging in the practice of medicine, therefor a supervising physician who refers a patient to a CRNA supervised by an onsite physician, does not aid or abet in the unauthorized practice of medicine. Id.

⁴ "Supervision" as it is used in Section 567.3a(12), "Supervision of Advanced Practice Nurse with prescriptive authority," for example, means overseeing and accepting responsibility for the work of the advanced practice nurse in ordering and transmitting the prescriptions for drugs and medical supplies. Id.

⁵ The State Board of Medical Licensure has promulgated rules that detail and explain the level of supervision required of physician assistants, see OAC 435:15-5-1 and 435:15-9-2, and anesthesiologist assistants, OAC 435:65-7-1. We note for illustrative purposes only, that proper supervision of the physician's assistant is quite different than proper supervision of the anesthesiologist assistant. In the former example, the physician assistant must function only under the supervision of a licensed physician. OAC 435:15-5-1 (2002), 435:15-9-2 (1994). The standards require that the physician be responsible for the formulation or approval of orders and protocols, that the physician or an alternate supervising physician is available physically or through direct telecommunications for consultation, assistance with medical emergencies or patient referral. See id. In the latter example, the supervision must be "direct" and the supervising anesthesiologist must be "at all instances immediately available to provide assistance and direction to the anesthesiologist assistant while anesthesia services are being performed. OAC 435:65-7-1(a), (b) (2010). It is perhaps significant to note that in both of these examples, it is the Board of Medical Licensure and Supervision that is regulating the supervising professional and the professional being supervised. In the issue at hand we have the added complexity that the CRNAs are regulated by an independent board.

⁶ Consultation means, "the act of consulting or conferring : deliberation of two or more persons on some matter." Webster's Third International Dictionary 490 (3d ed. 1993).

⁷ See CMS Manual System, Pub. 100-07, Trans. 59 (May, 21, 2010) available at http://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2010-Transmittals-Items/CMS1235619.html (last visited 11/28/2012); see also 42 C.F.R. § 482.52 (2007).

⁸ Id. at CMS Manual System, Pub. 100-07, Interpretive Guidelines § 482.52(A) and (c), Who May Administer Anesthesia, Topical/local anesthetics, minimal sedation, moderate sedation.

⁹ The interpretive guidelines for Section 482.52 provide definitions for various types of anesthesia, based largely on the American Society of Anesthesiologist guidance found in its Practice Guidelines for Sedation and Analgesia by Non-Anesthesiologists. See Anesthesiology 2002; 96:1004-17 (on file with author). Further, pursuant to CMS Memorandum Ref: S&C-11-10-Hospitals, January 14, 2011, Hospitals are expected to develop and implement policies and procedures that address clinical circumstances under which medications that fall along the analgesia-anesthesia continuum are considered anesthesia, and specify the qualifications of practitioners who can administer analgesia. Available at http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/SCLetter11_10.pdf.

¹⁰ See letter from Sue Wycoff, Legal Advisor to the Board of Nursing, to Janis Preslar, Assistant Attorney General of the State of Oklahoma p.3 (June. 23, 2012) (on file with author).