Resurrection of the New York Office-Based Surgery Guidelines

S. Diane Turpin, J.D.
Associate Director of Governmental Affairs


Four years after the New York Public Health Council unanimously adopted the “Clinical Guidelines for Office-Based Surgery,” the nurse anesthetists’ legal challenges have ended. In a 6-1 decision, New York’s highest court ruled that the New York State Association of Nurse Anesthetists lacked standing to maintain legal action.

The nurse anesthetists objected to the following language in the guidelines:

Supervision of the anesthesia component of the medical, dental or podiatric procedure should be provided by a physician, dentist or podiatrist who is physically present, who is qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia and who has accepted responsibility for supervision. The physician, dentist or podiatrist providing supervision should:

• perform a preanesthetic examination and evaluation;
  
  
• prescribe the anesthesia;
  
  
• assure that qualified practitioners participate;
  
  
• remain physically present during the entire perioperative period and immediately available for diagnosis, treatment and management of anesthesia-related complications or emergencies; and
  
  
• assure the provision of postanesthesia care.
  

Before the guidelines were issued, plaintiffs filed suit asking the court to declare that the guidelines were null and void because the Department of Health did not have the statutory authority to regulate the office setting. The lower court assumed that the plaintiffs had standing and granted plaintiffs summary judgment declaring the guidelines null and void. The appellate court explicitly found that plaintiffs had standing and agreed with the lower court that the guidelines were in fact regulations and as such were beyond the scope of authority granted to the Department of Health. The Court of Appeals, New York’s highest state court, reversed the lower courts’ findings and held that plaintiffs lacked standing because they could not show “injury in fact,” the first prong of a two-part test to determine a plaintiff’s right to sue.

Plaintiffs argued that the guidelines “effectively” required nurse anesthetists to be supervised by anesthesiologists; that it would be cost prohibitive to have both an anesthesiologist and nurse anesthetist involved in the case; and that the guidelines “effectively” prohibited nurse anesthetists from performing in an office-based setting and as such restricted the scope of nurse anesthetists’ practice. The court held that such assumptions lacked the concreteness required for “injury in fact.” The majority stated in the opinion:

“Plaintiff’s argument that CRNAs will likely be injured is founded on two layers of speculation — that the Guidelines will be rigorously enforced as regulations and that, as such, they will effectively harm CRNAs. At this juncture, it is not at all ‘obvious’ that, even if enforced as regulations, the Guidelines would in fact injure any of the plaintiff’s members as claimed.”

The good news is that after three years spent developing the guidelines and four years spent litigating whether the nurse anesthetists have standing to file suit to block the guidelines, the guidelines are expected to become effective once again.

The New York State Society of Anesthesiologists and ASA filed amicus briefs on behalf of the Department of Health.