New York State imposes certain requirements applicable to surgical or other invasive procedure performed outside of a hospital, diagnostic and treatment center or other Article 28 facility in which moderate sedation or deep sedation or general anesthesia is utilized to provide comfort to the patient in order to perform the procedure. (Office-Based Surgery or OBS). This law applies only to physicians, physician assistants and specialist assistants. These professionals must perform such procedures in offices that have been accredited by one of three national accreditation agencies and must also comply with certain reporting requirements. The OBS law does not cover procedures performed by dentists and podiatrists or other health care professions which are regulated by the State Education Department.
The law excludes minor procedures and procedures performed under minimal sedation. Minor procedures means (i) procedures that can be performed safely with a minimum of discomfort where the likelihood of complications requiring hospitalization is minimal; (ii) procedures performed with local or topical anesthesia; or (iii) liposuction with the removal of less than 500cc's of fat under unsupplemented local anesthesia. Minimal sedation means a drug-induced state during which (i) patients respond normally to verbal commands; (ii) cognitive function and coordination may be impaired; and (iii) ventilatory and cardiovascular functions are unaffected.
We regularly counsel physicians and other covered professionals on the applicability of the OBS law and its reporting requirements. We are frequently called upon to counsel new practices at the pre-construction stage on the requirements of the OBS law and accreditation agencies’ standards. We also assist physician practices in preparation for accreditation and maintaining the practice standards to assure full compliance with the OBS law. We also defend healthcare professionals charged with professional misconduct in connection with performing office-based surgery. We are experts in the intricacies of the OBS law and reimbursement issues associated with office-based surgery practices.