In Baker v. Banner Health (D. Colo. 2015), the court was asked to decide whether non-physicians–specifically nurse practitioners–could supervise therapeutic radiation treatment for purposes of Medicaid regulations. The court decided the issue on an “early” summary judgment motion by defendant Banner Health, which asked the court to conclude that nurse practitioners could supervise such treatment under applicable Medicaid rules. The court granted the request for an early summary judgment ruling because the case turned on this critical legal issue. (It is not clear why the defendant chose the summary judgment procedure instead of a motion to dismiss.)
The answer to the question presented depended on a complex series of Medicaid regulations and state regulations governing therapeutic radiation services. Distilled to its essence, the applicable Medicaid regulation, 42 C.F.R. § 410.27, provided that non-physicians could supervise the radiation treatments only if they could “personally furnish [such treatments] in accordance with State law.” The relator pointed to Colorado regulations that limited the provision of radiation treatment to a “physician who has a current active State of Colorado license” and other relevant qualifications. The relator argued, based on these regulations, that nurse practitioners could not personally furnish such services and thus could not supervise such treatments for Medicaid purposes.
The court was not persuaded by Banner’s counterarguments based on (1) a general Colorado statute limiting the Colorado board of health’s power to restrict the use of radiation-emitting medical equipment, and (2) a Colorado law that permitted nurse practitioners to supervise radiation therapy. The court found that neither of these laws addressed the specific question at issue–whether nurse practitioners could personally furnish radiation therapy services. As a result of this analysis, the court denied Banner’s early summary judgment ruling and allowed the case to proceed.
