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ALBANY � On narrow and tentative grounds, a divided Court of Appeals yesterday effectively permitted the state Health Department to regulate office-based surgeries even though the Legislature expressly denied the agency that authority. But the opinion and dissent in New York State Association of Nurse Anesthetists v. Novello, 34, suggest confusion over the practical application of the ruling. It implies that the matter will eventually return to the high court for a more definitive ruling. And it leaves a question as to how standing will be applied in future cases. The 6-1 opinion � with the most senior judge writing for the majority and the most junior in dissent � had more to do with the complicated rules of standing than the merits of the case. Judge Robert S. Smith, who joined the Court only 10 weeks ago, was alone in dissent, engaging in a sometimes lively debate with Chief Judge Judith S. Kaye, who wrote the prevailing opinion. The case arose after reports of numerous adverse occurrences, including deaths, resulting from the increasingly common practice of performing out-patient surgeries in a doctor’s office rather than a hospital. In 1999, a state Senate committee investigation raised safety concerns over office-based surgeries and recommended broadening the jurisdiction of the Health Department to regulate them. At the time, the department had no jurisdiction over procedures performed in doctors’ offices. Its authority covered only hospitals and ambulatory surgical centers. When the Legislature did not extend the power of the Health Department, Commissioner Antonia C. Novello formed an ad hoc Committee on Quality Assurance in Office-Based Surgery to consider ways that her agency could monitor office-based surgeries. Ultimately, the commissioner adopted a series of guidelines, including one that would bar certified nurse anesthetists from administering anesthesia without the supervision of a doctor. Concerned that the mandatory presence of a doctor qualified to administer anesthesia would render them unnecessary, nurse anesthetists challenged the guidelines. Albany Supreme Court Justice Bernard J. Malone Jr., found that the guidelines were effectively regulations. The Health Department acknowledged that physicians who failed to adhere to them could face disciplinary action. The agency could not extend its own power, especially since the Legislature had expressly declined to do so, Justice Malone said. A unanimous panel of the Appellate Division, Third Department, affirmed through Justice Edward O. Spain. Yesterday, the Court of Appeals reversed without addressing the merits. Chief Judge Kaye and five of her colleagues agreed that the nurse anesthetists could not establish an in-fact injury and therefore lacked standing to challenge a governmental action. The guidelines “might, or might not” impact the employment prospects of nurse anesthetists, and that is not enough to confer standing, the Court said. Referring to certified registered nurse anesthetists, the Court said, “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 plaintiff’s members as claimed.” Standing Issue Judge Smith said in his dissent that the plaintiffs had “made a powerful factual showing of injury.” He said the evidence strongly suggests that the guidelines would effectively require the presence of an anesthesiologist and that if an anesthesiologist has to be present, there is no need for a nurse anesthetist. Judge Smith called the majority’s conclusion troubling in that it renders the law of standing unpredictable. “Standing is a complicated subject at best, and there is always the danger that it will become a black box, from which a judicial conjurer can extract the desired result at will,” Judge Smith wrote. “I do not say that any such thing has happened in this case; but I do say that such things have happened before, and will probably happen again.” The chief judge responded in a footnote. “Our jurisprudence . . . represents not a black box from which we conjure a desired result, but an effort to articulate, and consistently apply, sound, logical principles that assure the courts’ decisions will neither be abstract nor advisory,” she wrote. Assistant Solicitor General Evelyn M. Tenenbaum argued for the commissioner. George F. Carpinello of Boies, Schiller & Flexner in Albany appeared for the nurse anesthetists. Yesterday, Mr. Carpinello said the ruling makes standing “more problematic and even harder to figure out” for future cases. “I am very disappointed the Court did not tackle the merits,” he said. “Obviously, we think the dissent was correct, that our evidence of harm was not only overwhelming but was completely unrebutted.” Health Department spokesman Joe DiMura said the agency is pleased with the ruling and intends to reinstate the guidelines immediately.

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