At its May 2, 2008, meeting, the Public Health Council (PHC) once again failed to generate sufficient votes to approve an application for establishing a freestanding (non-hospital–sponsored) ambulatory surgery center (ASC) project, Long Island Hand and Orthopedic Surgery Center, LLC (Suffolk County). The PHC previously has considered this project, but did not have enough votes to definitively approve or reject the application. In particular, this application has generated a great deal of discussion among PHC members as to whether approval of the project will undermine the ability of neighboring hospitals to deliver needed community services, and whether hospital impact should or could be considered in an ASC application. Notably, NYS Department of Health Commissioner Richard Daines, M.D., voted against the motion to approve the application. Long Island Hand ASC has filed an Article 78 petition challenging the PHC’s actions in not approving its application. The petition alleges that the PHC has effectively disapproved the ASC by failing to ever gather the requisite eight affirmative votes, and the applicants ask the court to overturn that decision.

GNYHA’s Position: GNYHA has consistently called for a moratorium on new freestanding ASCs when a hospital takes the position that such a facility will have an adverse financial or operational impact. Moreover, GNYHA believes that approving future applications for freestanding ASCs would be contrary to the goals of New York State’s Berger Commission, which aimed to strengthen the financial condition of existing health care institutions by reducing excess capacity. It is GNYHA’s opinion that relocating cases from hospitals to freestanding ASCs creates excess capacity in the health care system and undermines the ability of hospitals to deliver care needed by their communities, including trauma and other emergency care as well as services to the uninsured. As a result, the PHC has the responsibility to consider the impact of a particular ASC on neighboring hospitals.