American College of Surgeons Advocacy and Health Policy: ACS Cross Country: March 2007

March 2007

Headlines

Licensing of Surgical Practices Proposed in New Jersey
General Surgery Closer to Recognition as Single Specialty in Georgia
Arizona Senate Passes Bill to Raise Burden of Proof
Washington State's Department of Health to Address Office-Based Surgery Rules
Louisiana's Supreme Court Reverses Lower Court Ruling on Caps

Note: Questions relating to state legislative activity or any of the items noted in ACS Cross Country may be directed to Mindy Baker, State Affairs Associate, at mbaker@facs.org.

Licensing of Surgical Practices Proposed in New Jersey

A bill to require the licensing of single-room surgical facilities operated by physicians in their private medical practices was recently introduced in the New Jersey legislature. S.B. 2394, sponsored by Sen. Loretta Weinberg, defines a surgical practice as a structure or suite of rooms maintained by one or more licensed physicians solely for the purposes of their private medical practice. These facilities must include no more than one operating room specifically equipped, designed, and constructed to accommodate invasive diagnostic and surgical procedures. They also must house one or more post-anesthesia care areas or a dedicated recovery area in which a patient may be closely monitored and observed until discharged.

Standards governing the operation of surgical practices would be developed by the Commissioner of Health and Senior Services in consultation with the State Board of Medical Examiners. However, the board already extensively regulates surgery, special procedures, and anesthesia services performed in an office setting. In fact, New Jersey was one of the first states to do so.

For a copy of the College’s Patient Safety Principles for Office-based Surgery, go to http://www.facs.org/fellows_info/statements/st-46.html.

General Surgery Closer to Recognition as Single Specialty in Georgia

The Georgia General Assembly is considering legislation that would recognize general surgery as a single specialty under portions of the state’s certificate of need (CON) statute pertaining to ambulatory surgery centers. For many years, all single surgical specialties except for general surgery have eligible for a letter of non-reviewability exempting them from filing a CON application for construction and operation of an ambulatory surgery facility.

H.B. 337 adds general surgery to the CON statute as a single specialty, and at press time, the House Special Committee on CON was reviewing it. This committee also is reviewing other CON-related legislation, as well as the recommendations contained in the final report of the state’s Commission on the Efficacy of the CON Program.

Arizona Senate Passes Bill to Raise Burden of Proof

The Arizona Senate passed S.B. 1032, which would raise the plaintiff’s burden of proof from “a preponderance of evidence” to “clear and convincing evidence” in lawsuits against emergency room personnel. The bill passed in a 16-12 vote; at press time, it was awaiting committee assignment in the House.

This bill is identical to a measure introduced that the Arizona legislature passed last year, H.B. 2315, but that Governor Napolitano (D) vetoed. That same day, however, she created an 18-person “Emergency Medical Services Access Task Force” to study “the best ways to address the state’s shortage of emergency and trauma physicians and the problem of access to emergency care.” The task force’s final report included a recommendation that the burden of proof be raised. However, according to an Arizona Senate research fact sheet, five members of the task force filed a minority report objecting to this recommendation, claiming that it “is not based on solid data, will eliminate legitimate cases of medical negligence from being heard in court, and would grant favored status to every physician or medical professional that subsequently touches the patient when treatment is outside of the emergency department.”

For more information about S.B. 1032, including the full bill text, go to http://www.azleg.state.az.us/DocumentsForBill.asp?Bill_Number=SB1032.To read the June 2006 Cross Country story about HB 2315 please visit: http://www.facs.org/ahp/june06crosscountry.html#2

Washington State's Department of Health to Address Office-Based Surgery Rules

Washington’s Medical Quality Assurance Commission (MQAC), a branch of the Department of Health, is in the process of formulating regulations for office-based surgery. According to the pre-proposal statement of inquiry published by the Department of Health, “In 2002, the Federation of State Medical Boards created a committee to evaluate outpatient surgery. Results from the review indicated that surgical procedures are not as safe in an office because of no regulatory oversight. There have been several highly publicized deaths resulting from an office-based surgery setting in New York, New Jersey, and Florida. Washington has had bad outcomes reported as well. The medical quality assurance commission is concerned about the risk of patient death, complications from anesthesia, bleeding, infection, and clotting due to surgery in this setting. Rules need to be established to regulate this area.”

In order to allow for public discussion of the issue, the MQAC will host four workshops (link to document) in various locations throughout the state. The commission also will be accepting written comments that may be sent to Beverly A. Thomas, Program Manager, P.O. Box 47866, Olympia, WA 98504-7866, fax (360) 236-4768, beverly.thomas@doh.wa.gov.

Louisiana's Supreme Court Reverses Lower Court Ruling on Caps

The Louisiana physician community breathed a collective sigh of relief last month when the state Supreme Court overturned two lower court rulings that struck down Louisiana’s cap on noneconomic damages. In its decision, the court noted that the constitutional challenges (first raised in the appeals process) should have been heard in trial court instead of in the appeals process.

This issue originally arose in late September of 2006, when the Louisiana Court of Appeals struck down the state’s 20-year old cap on noneconomic damages. The Appeals Court ruled that because the cap was originally enacted in 1975 and given the devaluation of the dollar, the $500,000 cap is less valuable today than originally intended and no longer constitutes an “adequate remedy” under Louisiana law. To read the court’s full opinion, go to http://www.la3circuit.org/opinions/2006/09/092706/04-1069opi.pdf

Past Issues of ACS Cross Country:

2003	2004	2005	2006	2007
October 2003 November 2003 December 2003	January 2004 February 2004 March 2004 April 2004 May 2004 June 2004 July 2004 August 2004 September 2004 October 2004 November/ December 2004	January 2005 February 2005 March 2005 April 2005 May 2005 June 2005 July 2005 August 2005 September 2005 October 2005 November/ December 2005	January 2006 February 2006 March 2006 April 2006 May 2006 June 2006 July 2006 August 2006 September 2006 October 2006 November 2006 Winter 2006/2007	Winter 2006/2007 February 2007

ACS State Affairs
Division of Advocacy and Health Policy
Jon H. Sutton Manager, State Affairs Chicago Headquarters 312-202-5358 jsutton@facs.org	Mindy Baker State Affairs Associate Chicago Headquarters 312-202-5363 mbaker@facs.org

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Revised March 7, 2007

Advocacy and Health Policy