Colo. Med. Soc'y v. Hickenlooper, 11CA1005.

• Citation: 2012 COA 121,353 P.3d 396
• Decision Date: 19 July 2012
• Docket Number: No. 11CA1005.,11CA1005.
• Parties: COLORADO MEDICAL SOCIETY, a Colorado nonprofit corporation; and Colorado Society of Anesthesiologists, a Colorado nonprofit corporation, Plaintiffs–Appellants, v. John HICKENLOOPER, in his official capacity as the Governor of Colorado, Defendant–Appellee, and Colorado Association of Nurse Anesthetists; Colorado Nurses Association; and Colorado Hospital Association, Intervenors–Appellees.
• Court: Court of Appeals of Colorado

353 P.3d 396

2012 COA 121

COLORADO MEDICAL SOCIETY, a Colorado nonprofit corporation; and Colorado Society of Anesthesiologists, a Colorado nonprofit corporation, Plaintiffs–Appellants

v.John HICKENLOOPER, in his official capacity as the Governor of Colorado, Defendant–AppelleeandColorado Association of Nurse Anesthetists; Colorado Nurses Association; and Colorado Hospital Association, Intervenors–Appellees.

No. 11CA1005.

Colorado Court of Appeals, Div. II.

July 19, 2012.

Hershey Skinner, LLC, Kari Hershey, Littleton, Colorado, for Plaintiff–Appellant Colorado Medical Society.

Sherman & Howard, L.L.C., Joseph J. Bronesky, Frederick Y. Yu, Jason C. Miller, Denver, Colorado, for Plaintiff–Appellant Colorado Society of Anesthesiologists.

John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, LeeAnn Morrill, Assistant Attorney General, Denver, Colorado, for Defendant–Appellee.

Miles & Peters, P.C., Frederick Miles, Peggy E. Kozal, Denver, Colorado, for Intervenor–Appellee Colorado Association of Nurse Anesthetists.

Caplan and Earnest LLC, Linda Sideruis, W. Stuart Stuller, Toni J. Wehman, Boulder, Colorado, for Intervenor–Appellee Colorado Nurses Association.

Polsinelli Shughart PC, Gerald A. Niederman, Bennett L. Cohen, Denver, Colorado, for Intervenor–Appellee Colorado Hospital Association.

Hogan Lovells U.S. LLP, Christopher O. Murray, Denver, Colorado, for Amicus Curiae American Hospital Association.

Kennedy Childs P.C., John R. Mann, Denver, Colorado, for Amici Curiae American Society of Anesthesiologists and American Medical Association.

Opinion

Opinion by Judge ROTHENBERG.^*

¶ 1 Plaintiffs, Colorado Medical Society and Colorado Society of Anesthesiologists (collectively, Doctors), appeal the district court's order dismissing their complaint for failure to state a claim against defendant, John Hickenlooper, in his official capacity as the Governor of Colorado (Governor). Intervenors, Colorado Association of Nurse Anesthetists, Colorado Nurses Association, and Colorado Hospital Association (collectively, Nurses), joined the Governor's motion to dismiss.

¶ 2 At issue in this case is whether Colorado law permits certified registered nurse anesthetists (CRNAs) to administer anesthesia without supervision by a physician, and therefore authorizes the Governor to opt out of the physician supervision requirement for purposes of the Social Security Act. We conclude the delivery of anesthesia by a CRNA without physician supervision is consistent with state law, and therefore the Governor had authority to opt out of the physician supervision requirement. Accordingly, we affirm the trial court's order.

I. Background and Procedural History

¶ 3 Under the Social Security Act, ambulatory surgical centers, hospitals, and critical access hospitals must fulfill certain conditions of participation to receive Medicare reimbursement. One condition is that CRNAs administering anesthesia

must be supervised by a physician. 42 C.F.R. § 416.42 (ambulatory surgical center); 42 C.F.R. § 482.52 (hospital); 42 C.F.R. § 485.639 (critical access hospital).

¶ 4 However, states may opt out of the physician supervision requirement if “the State in which the [facility] is located submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State's Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs.” 42 C.F.R. §§ 416.42(c)(1), 482.52(c)(1), 485.639(e)(1). The letter from the Governor must attest that the Governor consulted the Boards and concluded that the opt-out “is in the best interests of the State's citizens” and “consistent with State law.” 42 C.F.R. §§ 416.42(c)(1), 482.52(c)(1), 485.639(e)(1).

¶ 5 Fifteen states other than Colorado have opted out of the federal requirement that CRNAs be supervised by physicians. They are Alaska, California, Idaho, Iowa, Kansas, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oregon, South Dakota, Washington, and Wisconsin. See Cal. Soc'y of Anesthesiologists v. Superior Court, 204 Cal.App.4th 390, 397 n. 4, 138 Cal.Rptr.3d 745, 748 n. 4 (2012).

¶ 6 On July 29, 2010, former Governor Bill Ritter, Jr. sent a letter to the Colorado Medical Board (Medical Board) and the Colorado Board of Nursing (Nursing Board) requesting advice whether an opt-out would be consistent with Colorado law and in the best interests of Colorado residents. In August 2010, both the Medical Board and the Nursing Board recommended the opt-out.

¶ 7 On September 27, 2010, Governor Ritter notified the Centers for Medicare and Medicaid Services by letter that he had consulted with the Medical Board and the Nursing Board and had determined the opt-out was consistent with Colorado law and in the best interests of Colorado citizens. Consequently, he exercised the opt-out as to all critical access hospitals in Colorado and thirteen specifically identified rural general hospitals. Later, he added a fourteenth rural general hospital to the opt-out.

¶ 8 On September 28, 2010, the Doctors filed this action for declaratory relief contending the opt-out was inconsistent with Colorado law. The Doctors also requested injunctive relief ordering the Governor to withdraw the opt-out. The Colorado Hospital Association, Colorado Nurses Association, and Colorado Association of Nurse Anesthetists intervened. Governor Hickenlooper filed a motion to dismiss, in which the intervenors joined.

¶ 9 On April 8, 2011, the district court granted the Governor's motion to dismiss and thus upheld his decision that Colorado statutes and regulations permit the delivery of anesthesia by a CRNA without physician supervision.

¶ 10 The Doctors now appeal. On appeal, amici curiae briefs were filed by the American Society of Anesthesiologists and American Medical Society supporting the position taken by the Doctors, and by the American Hospital Association supporting the position taken by the Governor and the Nurses.

II. Is the Governor's Decision Subject to Judicial Review?

¶ 11 Initially, we address a contention that was raised only by the Hospital Association: namely, that the Governor's decision to opt out of the Medicare requirement is a “decision committed to the political branches and is not subject to judicial review.” We disagree.

¶ 12 “The nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ; see Lobato v. State, 218 P.3d 358, 368–71 (Colo.2009) (applying the political question doctrine in Colorado). “A controversy is nonjusticiable—i.e., involves a political question—where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it....’ ” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691 ); see Gilligan v. Morgan, 413 U.S. 1, 9–10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (discussing justiciability).

¶ 13 In Colorado, “[t]he judiciary's avoidance of deciding political questions finds its roots in the Colorado Constitution's provisions separating the powers of state government.” Colo. Common Cause v. Bledsoe, 810 P.2d 201, 205 (Colo.1991) (citing Colo. Const. art. III ); see Lobato, 218 P.3d at 368. “The three branches ‘shall cooperate with and complement, and at the same time act as checks and balances against one another but shall not interfere with or encroach on the authority or within the province of the other.’ ” Lobato, 218 P.3d at 372 (quoting Smith v. Miller, 153 Colo. 35, 40–41, 384 P.2d 738, 741 (1963) ).

¶ 14 Here, we have found no “textually demonstrable constitutional commitment” that expressly or impliedly vests the Governor with the sole discretion to determine whether CRNAs may administer anesthesia without physician supervision. Baker, 369 U.S. at 217, 82 S.Ct. 691. Indeed, the Governor's authority to opt out of the Medicare requirement arises solely from federal regulations offering that option. However, these regulations specifically leave it to each state to determine whether the opt-out is consistent with its own state law.

¶ 15 We also note that the Doctors do not challenge the Governor's factual finding that opting out of the Medicare requirement is in the best interests of Colorado citizens, which arguably involves a policy question. The Doctors only challenge the Governor's above-stated action, which they contend violates state law, namely, the Nurse Practice Act, sections 12–38–101 to –133, C.R.S.2011 (the Act). Thus, this case involves the statutory construction of state law and whether the Medical Board and the Nursing Board correctly interpreted it.

¶ 16 For these reasons, we conclude our review of the Governor's decision “in no way infringes on the powers and duties of the coequal departments of our government” and is an issue “ ‘traditionally within the role of the judiciary to resolve.’ ” Colo. Common Cause, 810 P.2d at 206 (quoting Colorado General Assembly v. Lamm, 704 P.2d 1371, 1378 (Colo.1985) ); see Lobato, 218 P.3d at 362 (rejecting argument that parents' challenge to the adequacy of Colorado's public school funding system presented a nonjusticiable political question).

III. Standing

¶ 17 Nor are we persuaded by the Governor's argument that the Doctors lack standing to challenge the opt-out decision.

¶ 18 We review the question of whether a plaintiff has standing de novo. Barber v. Ritter, 196 P.3d 238, 245 (Colo.2008) ; Ainscough v. Owens, 90 P.3d 851, 855 (Colo.2004).

¶ 19 A court does not have jurisdiction over a case unless a plaintiff has standing to bring it. Thus, standing is a threshold issue the court must resolve before deciding a case on the merits. Barber, 196 P.3d at 245 ; Ainscough, 90 P.3d at 855. If the plaintiff does not have standing, the case must be dismissed. State Bd. for...