Around the country, Advanced Practice Registered Nurses (APRNs) are filing impact litigation to address legal issues impacting their practice. In this article, I'll briefly highlight two such matters including: Palmer v. Bonta et al., Case No. 5:23-cv-01047-JGB-SP, pending in the Federal District Court for the Central District of California, and American Association of Nurse Anesthesiology v. U.S. Department of Health & Human Services, Case No. 1:24-cv-01657-PAB, pending in the Federal District Court for the Northern District of Ohio.
Palmer v. Bonta: The Fight Over Who May Use the Title “Dr.”
Palmer v. Bonta highlights the dispute over healthcare professionals' use of the title “Dr.” to denote that they have reached the highest level of their profession. The Plaintiffs Jacqueline Palmer, Heather Lewis, and Rodolfo Jaravata Hanson are California nurse practitioners holding a Doctorate in Nursing Practice (DNP). In 2023, they filed a federal suit challenging California Business & Professions Code section 2054 as unconstitutional. The operative Complaint alleges that Plaintiffs are fearful of punishment for their truthful use the title “Dr.” because a nonparty DNP was fined $20,000 and subjected to actions revoking her nursing and nurse practitioner licenses, despite her truthful use of the title “Dr.” (Dkt. 36, Amended Complaint, ¶ 1.) According to the operative Complaint, there was never any allegation that any patient believed the DNP to be a physician, nor was there any allegation of harm. (Id.)
Plaintiffs name as defendants several California officials including the California Attorney General, President of the Medical Board of California, and Executive Director of the California Board of Registered Nursing – the persons charged with criminalizing the use of the title “Dr.” by any healthcare professionals other than physicians. (Dkt. 36, Amended Complaint, ¶ 2.) At the time that the allegation was filed, veterinarians, dentists, optometrists, pharmacists, physical therapists, occupational therapists, chiropractors, nurse anesthetists, and nurse practitioners all fell within the ambit of the criminal statute.
The lawsuit could soon reach its conclusion. On March 10, 2025, the three Plaintiff DNPs moved the court for a conclusive legal order enjoying the enforcement of section 2054 as unconstitutional. (See generally Dkt. 52.) In support of the Motion for Summary Judgment, Plaintiffs introduce evidence of how they were using the title “Dr.” and have had to restrict their speech in order to avoid criminal enforcement, which remains a realistic threat. (Id.) The Plaintiffs further argue that the prohibition on speech is content based (i.e. it restricts the words that one could say) and is speaker-oriented (i.e. it restricts certain types of healthcare providers that are not Medical Doctors or Doctors of Osteopathy). Plaintiffs argue that section 2054 should
be subject to the “strict scrutiny” standard of review, holding the statute “presumptively unconstitutional…unless narrowly tailored to serve compelling state interests.” (Id. at 23:1-7.) Section 2054 was enacted in 1980 and has been amended several times, most recently in 2024 to allow doctors of osteopathy to use the title “Dr.” Previously, in 2017, an amendment removed express authorization for podiatrists to use the title “Dr.” Before that, the statute was amended to include medical school graduates and foreign-licensed physicians in the list of those authorized to use the title “Dr.” The fluctuation in who may use the title over time tends to demonstrate a political interest, rather than a compelling state interest.
The American Medical Association (AMA) and California Medical Association (CMA) filed an “amicus curae” brief attempting to justify the law on the basis that patients are confused by the various acronyms used by healthcare providers. (Dkt. 33, Amicus Brief, at 11-16.) However, the AMA brief fails to acknowledge that California Business & Professions Code section 2278 already addresses any potential for confusion in a less restrictive way. In response to the latest filing, The American Association of Nurse Attorneys (TAANA) submitted an amicus arguing that the statute is not consistent with our modern healthcare system, which recognizes expanding doctoral roles for any number of healthcare professionals. (Dkt. 55-2, at 18:9-20.) This dispute reaches far beyond California. Several states – including Indiana, Georgia, and Florida, have considered or enacted legislation disallowing the use of the title “Dr.” for anyone other than a physician and surgeon. In contrast, West Virginia has repealed its law restricting the use of the title “Dr.”
For decades, statutes and regulations have created structural barriers for healthcare professionals in competition with physicians, including through enforcement of unconstitutional provisions such as section 2054. It will be interesting to see if reason and logic prevail in what appears to be a rather open and shut case.
AANA v. HHS: The Non-Discrimination in Health Care Law
On the opposite side of the country, AANA – a national trade group representing Certified Registered Nurse Anesthetists (CRNAs) – has filed suit against the U.S. Department of Health & Human Services (HHS) seeking to enforce the Non-Discrimination in Health Care Law. Most people are not aware that CRNAs and physician anesthesiologists are reimbursed the same amount when performing independent anesthesia services. This may be because, for many years, there have been specific laws on the books expressly authorizing discrimination in payment between physicians and non-physician practitioners performing the same service. For example, Medicare pays Physicians Assistants and Nurse Practitioners 85% of the physician fee schedule when performing the same services as a physician, but pays at 100% when those services are “incident to” physician practice.
In the past few years, commercial insurance companies including CIGNA and Anthem Blue Cross have instituted discriminatory payment for CRNAs, paying them 85% of what their physician counterparts make for performing the same anesthesia services. Commercial insurance carriers have done this despite the fact that there is no specific law authorizing it. Moreover, the Non-Discrimination in Health Care Law on its face prohibits discriminatory reimbursement policies and contracts for “any healthcare provider who is acting within the scope of that provider's license or certification…” See 42 U.S.C. section 300gg-5(a) (otherwise known as Public Health Service Act section 2706 or the Non-Discrimination in Health Care Law. (Dkt. 1, Complaint ¶¶ 7, 10.)
The Non-Discrimination in Health Care Law is broadly applicable to all non-grandfathered group health plans and health insurers offering group or individual health insurance, including plans offered through or administered by CIGNA and Anthem Blue Cross. In fact, PHS section 2706(a) is incorporated into the Employee Retiree Income Security Act (ERISA) at section 715(a)(1) and into the Internal Revenue Code at section 9815(a)(1). Similar language is included in Social Security Act section 1852(b)(2) regarding Medicare Advantage Plans. Hence, the law applies to most insurance plans, insurance providers, and employer-sponsored health plans throughout the United States.
Until March 12, 2023, Medicare and all insurance payors reimbursed independently practicing nurse anesthetists at 100% of the fee schedule, and all except CIGNA and Anthem Blue Cross continue to do so. In fact, since 1988, Medicare has expressly authorized nurse anesthetists to receive 100% of the reimbursement made to physicians performing the same role. In the lawsuit, AANA implores the HHS Secretary to enforce the law against these discriminatory reimbursement practices. (Dkt. 1, at ¶¶ 11-12.)
On February 10, 2025, the American Society of Anesthesiologists (ASA) – a national trade group of physician anesthesiologists – submitted an amicus curae brief supporting dismissal of the AANA Complaint. (Dkt. 15-1.) As anesthesia groups across the country include both physician and nurse-trained anesthesia providers, there are many professionals, including physicians, who stand to benefit from the lawsuit. In filing this brief, ASA appears to be protecting physician anesthesiologists at the expense of the anesthesia profession generally. Anthem Blue Cross has taken note and recently proposed –then retracted – another policy that would restrict anesthesia reimbursement for the profession as a whole.
Interestingly, the statute's plain language already states when discrimination between healthcare providers is authorized: “Nothing in this section shall be construed as preventing…varying reimbursement rates based on quality or performance measures.” Therefore, when it comes to evaluating providers based on their quality of care or patient outcomes, the statute authorizes discriminatory payment policies. Had CIGNA and Anthem Blue Cross discriminated generally against providers with poor outcomes or quality measures, then there would have been no violation.
Still, pursing HHS may not lead to any change in enforcement practices, as HHS's motion to dismiss makes a colorable argument that it has agency discretion whether to enforce the laws in any particular case. (Dkt. 11-1, at 2-5, 9-15.) If the Court sides with HHS and the motion to dismiss is granted, then the AANA will need to include additional supportive facts to establish standing and authority to sue.
Katherine “Kate” Bowles draws upon her in-depth litigation experience and background as a Registered Nurse to bring deep industry knowledge and expertise when representing clients. Kate's experience encompasses all aspects of healthcare, including traditional healthcare systems and emerging groups in the outpatient sector, such as managed care health plans, Medi-Cal enrolled health plans and community support providers, ERISA health plans, surgery centers, telehealth providers, outpatient mental health, home health, infusion pharmacy, physical
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
