Government Employees Insurance Co., et al., Respondents,v.Avanguard Medical Group, PLLC, Appellant.BriefN.Y.February 10, 2016APL-2015-00130 Nassau County Clerk’s Index No. 16313/11 Appellate Division–Second Department Docket No. 2013-02277 Court of Appeals of the State of New York GOVERNMENT EMPLOYEES INSURANCE CO., GEICO INDEMNITY CO., GEICO GENERAL INSURANCE CO. and GEICO CASUALTY CO., Plaintiffs-Respondents, – against – AVANGUARD MEDICAL GROUP PLLC, Defendant-Appellant. BRIEF FOR AMICI CURIAE THE MEDICAL SOCIETY OF THE STATE OF NEW YORK AND THE SOCIETY OF NEW YORK OFFICE BASED SURGERY FACILITIES, INC. LAW OFFICES OF GARY I. FIELDS, PLLC Attorneys for Amici Curiae The Medical Society of the State of New York and The Society of New York Office Based Surgery Facilities, Inc. 1441 Broadway, 3rd Floor New York, New York 10018 Tel.: (212) 593-4900 Fax: (347) 587-8088 Date Completed: December 21, 2015 AMICUS CURIAE'S CORPORATE DISCLOSURE STATEMENT The Medical Society of the State of New York ("MSSNY"), by and through its amicus curiae attorneys, Law Offices of Gary I. Fields, PLLC, as and for its Corporate Disclosure Statement pursuant to 22 N.Y.C.R.R. § 500.1(f), states: MSSNY is comprised of physicians, residents and medical students who practice in the State of New York. MSSNY is represented in the American Medical Association ("AMA") House of Delegates and shares the objective of the AMA to promote the science and art of medicine and the betterment of public health. The primary purpose of MSSNY is to enhance the delivery of medical care of high quality to all people in the most economical manner and to promote and maintain high standards in medical education and in the practice of medicine in an effort to ensure that quality medical care is available to the public. Affiliate and subsidiary organizations of MSSNY include the Empire State Medical Scientific and Educational Foundation, Inc., and the Medical Educational and Scientific Foundation of New York, Inc. Dated: New York, New York December 21,2015 LAW OFFICES OF GARY I. FIELDS, PLLC 1441 Broadway, 3rd Floor New York, New York 10018 Tel: (212) 593-4900 Fax: (347) 587-8088 Counsel for the Medical Society of the State of New York andfor the Society of New York Office Based Surgery Facilities, Inc. on this amici curiae brief AMICUS CURIAE'S CORPORATE DISCLOSURE STATEMENT The Society of New York Office Based Surgery Facilities, Inc. ("NYOBS"), by and through its amicus curiae attorneys, Law Offices of Gary 1. Fields, PLLC, as and for its Corporate Disclosure Statement pursuant to 22 N.Y.C.R.R. § 500.1(t), states: NYOBS PAC, a committee registered with the New York State Board of Elections, is an affiliate of NYOBS. NYOBS does not have any parents or subsidiaries. Dated: New York, New York December 21, 2015 A W OFFICES OF GARY 1. FIELDS, PLLC 1441 Broadway, 3rd Floor New York, New York 10018 Tel: (212) 593-4900 Fax: (347) 587-8088 Counsel for the Medical Society of the State of New York andfor the Society of New York Office Based Surgery Facilities, Inc. on this amici curiae brief TABLE OF CONTENTS INTERESTS OF AMICI ........................................................................................... 1 PRELIMINARY STATEMENT OF POSITION ..................................................... 2 ARGUMENT ............................................................................................................ 4 I. Office-Based Surgery Providers Are Subject to Stringent Accreditation Standards, Similar to Ambulatory Surgery Centers ...... 4 II. The Regulators' Refusal to Act Underscores the Importance of the Court's Role in Statutory Interpretation ............................................. 13 III. Surgery in Accredited Office-Based Surgery Settings Is Safe and Effective .............................................................................................. 14 CONCLUSION ....................................................................................................... 17 TABLE OF AUTHORITIES CASES Gov't Employees Ins. Co. v. Avanguard Med. Group, PLLC, 127 A.D.3d 60 (2d Dep't 2015) .............................................................................................. 13 STATUTES 10 NYCRR § 755.2 ................................................................................................ 5, 6 N.Y. PUB. HEALTH LAW § 230-d ............................................................................ 5, 6 OTHER AUTHORITIES AAAASF, ASC Medicare Standards and Checklist for Accreditiation of Ambulatory Surgery Facilities (Sept. 8,2014) ...................................... passim AAAASF, Standards and Checklist for accreditation of ambulatory surgery facilities (April 2014) ............................................................................ passim Ali M. Soltani, MD et aI., Outpatient Surgery and Sequelae: An Analysis of the AAAASF Internet-based Quality Assurance and Peer Review Database, 40(3) Clinics in plastic surgery 465 (2013) ................................. 15 CMS-Approved Accrediting Organizations Contacts for Prospective Clients, https:llwww.cms.govlMedicarelProvider-Enrollment-and- Certification/SurveyCertificationGenInfolDownloadsl Accrediting- Organization-Contacts-for-Prospective-Clients-. pdf (last accessed Nov. 19, 2015) ................................................................................................. 6 H. Steve Byrd, MD et aI., Safety and Efficacy in an Accredited Outpatient Plastic Surgery Facility: A Review of5316 Consecutive Cases, 2003 Plast. Reconstr. Surg. 636 (2003) .................................................................. 16 Lisa M. Peacock MD et aI., Transitions to Office-based Obstetric and Gynecologic Procedures, 58 Clinical Obstetrics & Gynecology 418 (2015) ............................................................................................................. 16 Morris Wortman et aI., Operative Hysteroscopy in an Office-Based Surgical Setting: Review of Patient Safety and Satisfaction in 414 Cases, 20 Journal of Minimally Invasive Gynecology 56 (2013) ................................. 16 - 11 - Office-Based Surgery (OBS) Frequently Asked Questions (FAQ 's) for Practitioners, https://www.health.ny.gov/professionals/office- based_surgery/obs_faq.htm (last accessed Nov. 19,2015) ............................. 6 Robert Singer, MD, Is Office-based Aesthetic Surgery Still Viable?, 20 Aesthetic Surgery Joumal413 (2000) ........................................................... 15 The Joint Commission, Joint Commission Standards for Ambulatory Care (effective Jan. 1, 2016) .......................................................................... passim The Joint Commission, Joint Commission Standards for Office-Based Surgery Practices (effective Jan. 1, 2016) .................................................. 6, 8 - 111 - INTERESTS OF AMICI The Medical Society of the State of New York ("MSSNY") is a non-profit organization comprised of approximately 30,000 licensed physicians, as well as medical residents and medical students in New York State. It is committed to promoting and maintaining high standards in medical education and the practice of medicine in an effort to ensure that quality medical care is available to the public in the most economical manner. Affiliate and subsidiary organizations of MSSNY include the Empire State Medical Scientific and Educational Foundation, Inc., and the Medical Educational and Scientific Foundation of New York, Inc. The Society of New York Office Based Surgery Facilities, Inc. ("NYOBS") is a non-profit organization comprised of accredited office-based surgery ("OBS") providers throughout New York State. NYOBS is committed to developing and maintaining high standards for patient care, as well as the equitable treatment of OBS providers by New York State, the federal government and third-party payors. This appeal raises a question of great importance to members ofMSSNY and NYOBS and, in their judgment, to public health in the State of New York overall. Specifically, recent years have seen a dramatic shift in surgeries to high quality office-based settings that are generally more convenient and less expensive for patients. However, the Second Department ruling on review to this Court threatens a critical source of revenue for accredited OBS providers because it holds that those providers are not entitled to any reimbursement of costs and expenses under the no-fault insurance laws, even though hospitals or ambulatory surgery centers ("ASCs") may recover "facility fees" covering the costs and expenses of running their operating rooms and related facilities when the same surgical procedures are performed in those settings. This outcome is quite anomalous, and would serve to substantially reduce the incentive for doctors to perform procedures in accredited, OBS offices, or even to build those surgery locations in the first place. PRELIMINARY STATEMENT OF POSITION MSSNY and NYOBS strongly agree with the arguments in Avanguard's briefs for why the Second Department's ruling was wrong and should be reversed. There are approximately 945 accredited OBS providers throughout New York State, safely furnishing hundreds of thousands of significant surgical and other invasive medical procedures for patients each year; procedures that could not be safely - or lawfully - performed in a typical doctor's office. OBS organizations provide services including upper endoscopy, colonoscopy, mammoplasty, lithotripsy or vascular access related, knee replacement, mastectomy and reconstruction, and arthroscopy and other outpatient orthopedic (such as rotator cuff and anterior cruciate repair) procedures, when accompanied by moderate or - 2 - deep sedation, major upper or lower extremity nerve blocks, neuraxial or general anesthesia. Accredited OBS providers furnish patient services that underpin a critical component of the state's health care system. Three additional points merit the Court's attention. First, the brief of the respondents (collectively, "GEl CO") pervasively describes accredited OBS locations as equivalent to an ordinary "doctor's office," which is a gross mischaracterization. In fact, in addition to the state licensure and regulatory oversight of their physician owners, OBS organizations are subject to stringent health care accreditation standards mandated by New York State. These accreditation standards are substantially similar to those imposed on the state's ASCs, and many of the significant expenditures to establish, and on-going costs to operate and maintain, each surgical suite and related facilities of OBS organizations are the same as those incurred by ASCs. However, unlike ASCs, each owner of an accredited OBS organization must be a physician duly licensed and in good standing in New York State. ASCs can - and often do - have business people and other unlicensed individuals as active owners and operators. Second, GEICO contends that the question at hand should be resolved by the legislature and regulators, but that reflects circular logic by assuming the fees at issue are not covered by the laws and rules as written - which they are. Under the statutory scheme, the legislature has defined covered costs, and the regulators may - 3 - only impose caps on those costs, not define coverage. This framework ensures that health care providers are not penalized when regulators refuse to do their job. That purpose is particularly important here because the Worker's Compensation Board has recently stated that it does not plan to address the legal issue here one way or the other, despite the Second Department's explicit invitation. That statement makes it all the more urgent for this Court to interpret properly the statutory language as written, and not wait for regulatory action that may never come. Third, academic research has shown that surgery conducted in an accredited office-based setting is safe, effective and very popular among patients. The Court should not interpret the no-fault laws in a way that substantially undermines this important component of the health care system. ARGUMENT I. OFFICE-BASED SURGERY PROVIDERS ARE SUBJECT TO STRINGENT ACCREDITATION STANDARDS, SIMILAR TO AMBULATORY SURGERY CENTERS In New York State, surgeries and other invasive procedures requiring general anesthesia, moderate sedation or deep sedation are performed in one of three settings: a "general hospital," an ambulatory surgery center, or, under a law passed in 2007, in an accredited OBS location. (Avanguard App. Br. 5-7.) In all three settings the individual surgeon who performs the procedure can recover the same "professional fee" under the no-fault laws for her or his professional services. - 4- As a result of the Second Department ruling under review, however, the first two types of providers (hospitals and ASCs) may recover a "facility fee" under the no- fault laws to recoup the significant costs of surgical and medical equipment, nurses, surgical supplies, construction and maintenance of a surgical suite and related facilities and other non-professional expenses, but OBS providers may not recover anything at all, even when identical procedures are safely performed in those settings. GEICO's brief to this Court would suggest that this is an appropriate result because an accredited OBS office is really nothing more than an ordinary "doctor's office," apparently, in GEICO's view, with negligible additional expenses. (see GEICO Br. 1,2,4, 13, 14, 16, 17,23,25,26,29,24,34,36,38,41-43). Nothing could be further from the truth. In fact, both OBS providers and ASCs must obtain and maintain accreditation from nationally-recognized organizations methodically selected by New York's Commissioner of Health, N.Y. PUB. HEALTH LAW § 230-d (3); 10 NYCRR § 755.2 (£), meeting such accreditation organizations' exacting standards to assure safe and effective patient care in both settings. The three national accreditation agencies that the Commissioner has qualified to accredit OBS providers are all agencies that likewise have been selected to accredit ASCs - 5 - in New York State. 1 Further, as recently as Spring 2015, the New York State legislature adopted additional regulations that would require the accreditation agencies to obtain additional quality improvement and quality assurance certifications from all New York OBS providers. 2 The standards for accreditation of OBS providers and ASCs are very similar. For example, a leading not-for-profit accreditation agency for OBS providers in New York, The Joint Commission, which accredits nearly 21,000 health care facilities and programs throughout the United States, has published a standards manual of over 300 pages of required health and quality standards applicable to New York State OBS organizations/ as well as an analogous standards manual 1 See Office-Based Surgery (OBS) Frequently Asked Questions (FAQ 's) for Practitioners, https:llwww.health.ny.gov/professionals/office- based_surgery/obs_faq.htm (last accessed Nov. 19,2015) (Question 10, identifying agencies); 10 NYCRR § 755.2(0 (requiring ambulatory surgery centers to be accredited by agencies approved by the Centers for Medicare and Medicaid Services); CMS-Approved Accrediting Organizations Contacts for Prospective Clients, https:llwww.cms.govlMedicarelProvider-Enrollment-and- CertificationlSurveyCertificationGenlnfolDownloadsl Accrediting-Organization- Contacts-for-Prospective-Clients-. pdf (last accessed Nov. 19, 2015) (identifying same agencies). 2 See changes to N.Y. PUB. HEALTH LAW § 230-d, Subd. 4, as amended by Laws 2015, Ch. 57, Pt. L, Secs 1,2, eff. April 13, 2016. 3 See generally The Joint Commission, Joint Commission Standards for Office- Based Surgery Practices (effective Jan. 1,2016) (the "JC OBS Standards"). A copy of the JC OBS Standards is attached as Exhibit A. - 6- used by New York ASCs.4 Similarly, a second leading not-for-profit accreditation organization overseeing aBS providers in New York, the American Association for the Accreditation of Ambulatory Surgery Facilities ("AAAASF"), has also published a standards manual of required health and quality standards applicable to aBS providers5 and an analogous standards manual applicable to ASCs in New York. 6 The standards for both aBS organizations and ASCs are strikingly similar and include costly and time-consuming requirements that are imposed irrespective of the ability of a provider to generate revenue. For example, the AAAASF and Joint Commission standards mandate that both aBS and ASC providers: • Acquire (by purchase or lease) and build-out a physically separate surgery suite with one or more operating room(s), prep/scrub area, clean and/or dirty area, and recovery room(s). The surgery suite must 4See generally, The Joint Commission, Joint Commission Standards for Ambulatory Care (effective Jan. 1,2016) (the "JC ASC Standards," and collectively with the JC aBS Standards, the "JC Standards"). A copy of the JC ASC Standards is attached as Exhibit B. 5 See AAAASF, Standards and Checklist for accreditation of ambulatory surgery facilities (April 2014) (the "AAAASF aBS Standards). A copy of the AAAASF aBS Standards is attached as Exhibit C. The AAAASF website shows this document as among the application materials for New York office-based surgery. See http://www.aaaasf.orgiSurveyor/asf_web/ASC%20Program/asc%20new.html. 6 See AAAASF, ASC Medicare Standards and Checklist for Accreditiation of Ambulatory Surgery Facilities (Sept. 8,2014) (the "AAAASF ASC Standards"). A copy of the AAAASF ASC Standards is attached as Exhibit D. - 7 - be adequately ventilated and temperature-controlled, have a minimum of four feet of clear space around any operating table (AAAASF OBS Standards at 24-26; AAAASF ASC Standards at 10-11), and have adequate storage space. These standards require an OBS organization to lease or purchase additional space in its premises to accommodate an operating suite with one or more operating rooms. Further, with The Joint Commission, the ventilation system must provide appropriate pressure relationships, air exchange rates and filtration efficiencies, all of which cost significant money to install and maintain, and require routine HV AC inspections and documentation (See JC Standards EC.02.05.01). • Inspect, test and maintain costly surgical and other medical equipment for safety, operational and functional checks at daily, weekly, monthly, quarterly, bi-annual and annual intervals (See JC Standards EC.02.04.03). For annual inspections, an OBS provider is required to engage a biomedical technician to inspect and test all equipment annually (AAAASF OBS Standards at 32; AAAASF ASC Standards at 23; See JC Standards EC.02.04.01). • Install and maintain an emergency power source that will function within 30 seconds of a power outage and last a minimum of two hours - 8 - under the AAASF standards (AAAASF OBS Standards at 35; AAAASF ASC Standards at 28), or a minimum of 90 minutes under the JC Standards (See JC Standards EC.02.05.03). The emergency power source requires initial, monthly, quarterly, and annual testing, maintenance, and documentation. (See JC Standards EC.02.05.07). • Keep a log and inventory of controlled substances that is verified by not less than two members of the operating room team (AAAASF OBS Standards at 51; AAAASF ASC Standards at 69). Documentation is time-consuming and medications are costly and may need to be discarded after a single use or within a stated time after opening (See JC Standards IC.01.02.01). Further, medication management requirements impose 16 specific standards for emergency medication management, including the maintenance of an emergency medication cart (See JC Standards MM.03.01.03 et seq.). In additional to the initial cost of establishing the cart, many medications and equipment expire, resulting in ongoing costs. • Obtain and maintain monitoring equipment in accordance with standards for the Provision of Care, Treatment and Services (See JC Standards PC.03.01.05). Further, if the OBS provider offers certain lab testing on-site, there are additional costs incurred in obtaining a - 9- waiver under the federal Clinical Laboratory Improvement Amendments (CLIA Waiver) and maintaining hospital grade equipment (See JC Standards WT.01.01.01). • Establish written protocols for security emergencies, such as intruders (AAAASF OBS Standards at 47; AAAASF ASC Standards at 54). Such standards mandate the maintenance of an Emergency Management Plan, which requires performance of drills (e.g., fire drills, cardiac emergency drills, and malignant hyperthermia drills) and education of staff (See JC Standards EM.02.01.01). Again, implementation of the AAAASF OBS Standards or the JC Standards is time-consuming and non-revenue generating for the OBS provider. • Build out and maintain a separate and adequately sized post-anesthetic care unit, or recovery room, with a nurse or other professional "immediately available" at all times until the patient is discharged (AAAASF OBS Standards at 43; AAAASF ASC Standards at 50). • Comply with multiple, detailed standards for Infection Prevention and Control, which require a licensed Infection Control Officer on staff and monthly and quarterly compliance documentation (including an Infection Control Plan, Risk Table, multiple in-service on hand hygiene training, and other Infection Prevention and Control in- - 10- service education and testing). (See JC Standards IC.O 1.02.0 1 et seq.). Further, all staff members, including per diems, and licensed independent practitioners (anesthesia providers) must be vaccinated from influenza free of charge. (See JC Standards IC.02.04.01). • Verify staff every two years, which requires compliance with 26 steps for credentialing and privileging provider staff, including verification from primary sources (such as the American Medical Association Master Profile, specialty certification boards, professional schools, and postgraduate education or postdoctoral programs for completion of training). (See JC Standards HR.01.02.05 and HR.02.01.03). Such verification requirements are time-consuming and result in the OBS provider incurring costs associated with obtaining verified information for access to primary sources. • Establish random peer-reviews for at least six cases per surgeon for every six-month period and report that data to AAAASF (AAAASF OBS Standards at 65; AAAASF ASC Standards at 97). • Be subjected to a comprehensive survey by the facility director each year and an on-site survey by AAAASF every three years (AAAASF OBS Standards at unnumbered, twenty-first page from beginning; AAAASF ASC Standards at unnumbered, sixth page from beginning). - 11 - The JC Standards impose 23 leadership standards to establish structures and processes that focus on safety and quality of care (See JC Standards LD.01.03.01 et seq.). Again, this requires the devotion of substantial non-revenue generating time and resources by an aBS provider's leadership in order to succeed at surveys. There are also inspection fees and annual fees associated with surveys and accreditation. Thus, as the sampling of OBS accreditation requirements set forth above suggests, an OBS provider's establishing and maintaining an operating room environment under exacting accreditation standards obviously necessitates significant expenditures for premises, specialized surgical suite and other site improvements, surgical and other medical equipment, personnel and supplies, as well as training and dedication of staff, which are far in excess of the routine costs of developing and maintaining a typical doctor's office, and all of which are non- revenue generating for the OBS provider of services for accident victims if the Second Department's mistaken decision were allowed to stand. That is why, until the Second Department's ruling, OBS providers would routinely charge and recover facility fees in no-fault cases. This Court should reject GErCO's attempt to diminish New York State accredited OBS providers as mere "doctor's offices" and recognize that they may in all appropriate circumstances recover facility fees. - 12 - Such stringent, costly, time-consuming and re-occurring OBS standards and ASC standards, as adopted and implemented by the three Commissioner-selected accreditation agencies (inclusive of AAAASF and the Joint Commission), are simply not applicable to an ordinary "doctor's office." II. THE REGULATORS' REFUSAL TO ACT UNDERSCORES THE IMPORTANCE OF THE COURT'S ROLE IN STATUTORY INTERPRETATION The Second Department concluded that it was for the Legislature and the regulators "to determine whether the laws and regulations" allow OBS providers to recover facility fees, Gov 'f Employees Ins. Co. v. Avanguard Med. Group, PLLC, 127 A.D.3d 60,66-67 (2d Dep't 2015), and that theme is repeated throughout GErCO's brief. (GErCO Opp. 25 (the question is "reserved for the Legislature and the regulatory agencies"); id. at 26-27 (Court should not overrule "compensation the Legislature and regulatory agencies chose") id. at 38 (Court should not overrule "methodology that has been carefully crafted by the Legislature and the Executive"); id. at 41 (legal issue is a "policy decision that is reserved for the Legislature and the Executive").) Avanguard's merits briefs shows why this argument is wrong: GErCO's argument falsely assumes the law as written favors GErCO, and it ignores that the statutory framework allows for recovery of "all" necessary expenses in the first instance, leaving the regulators only the power to cap fees, not determine what is or is not covered. (See Avanguard App. Br. 23-24; Avanguard Reply Bf. 11-12.) - 13 - As A vanguard pointed out, this statutory "framework protects providers from being penalized for regulatory delays or inaction." (Id. at 11.) Since the filing of that brief, the Worker's Compensation Board told a member ofNYOBS by email that it would "not establish a fee schedule for office based surgery and will not issue a statement regarding whether these services are eligible for reimbursement." (See Exhibit E) It would be all the more inappropriate to defer to the regulators when they have announced they have no present intention of acting one way or the other. The Court's role, quite appropriately, is to interpret the no-fault statute as written. III. SURGERY IN ACCREDITED OFFICE-BASED SURGERY SETTINGS Is SAFE, EFFECTIVE AND CONVENIENT Erasing a critical revenue source for OBS providers would necessarily reduce the incentives for surgeons to perform procedures in such locations, or even to establish OBS locations in the first place. That would greatly undermine the 2007 law that first defined OBS providers as distinct, regulated health care entities, and cutting the facility fees payable by no-fault carriers would be especially harmful to patients and the availability of high quality surgical services. Indeed, academic studies consistently show that office-based surgery in an accredited setting is safe, effective and popular among patients. For example: • Based on data from over 400,000 procedures performed over five years, one of the accreditation agencies that is authorized to accredit - 14- OBS providers in New York State (AAAASF) concluded that "the overall risk of complications for surgical procedures performed in AAAASF -accredited office-based facilities is comparable to that for surgery performed in freestanding or hospital ambulatory surgical facilities." 7 • AAAASF conducted a separate survey of over 7.6 million procedures in accredited office-based settings, and found that complications took place in only 0.4% of cases. 8 • A five-year retrospective review of all patients who underwent surgery with a Florida OBS provider, which was accredited by one of the three agencies authorized to accredit providers in New York, found a low complication rate of 0.57%. 9 7 Robert Singer, MD, Is Office-based Aesthetic Surgery Still Viable?, 20 Aesthetic Surgery Joumal413, 413-414 (2000). 8 Ali M. Soltani, MD et al., Outpatient Surgery and Sequelae: An Analysis of the AAAASF Internet-based Quality Assurance and Peer Review Database, 40(3 )Clinics in plastic surgery 465, 465-73 (2013). 9 Yvonne N. Piermont, MD et aI., Accredited Office-Based Plastic Surgery Center: A Retrospective Review of Safety in an Office-Based Surgery Center, University of South Florida (2013) - 15 - • Along the same lines, a retrospective review of over 5,000 cases from an accredited office-based plastic surgery location found a complication rate of only 0.7% and not a single death. 10 Patients also prefer office-based surgery for its convenience. A review of recent studies focused on gynecologic procedures provided in office-based settings found that patient satisfaction was consistently high, ranging from 91 % to 98%.11 Similarly, a telephone survey of 387 women who underwent hysteroscopy in office-based settings found that 98.8% reported being "very satisfied" or "satisfied," and that 97.6% preferred the office-based setting to a hospital. 12 By regulating OBS providers in 2007, the New York Legislature surely intended to encourage more and safer procedures in those settings or, at a minimum, for patients to have the choice of having procedures performed in an office-based setting with the knowledge that doing so would result in safe and effective treatment. The Second Department's decision, by choking off an \0 H. Steve Byrd, MD et aI., Safety and Efficacy in an Accredited Outpatient Plastic Surgery Facility: A Review of5316 Consecutive Cases,2003 Plast. Reconstr. Surg. 636, 636-641 (2003) 11 Lisa M. Peacock MD et aI., Transitions to Office-based Obstetric and Gynecologic Procedures, 58 Clinical Obstetrics & Gynecology 418, 418-433 (2015). 12 Morris Wortman et aI., Operative Hysteroscopy in an Office-Based Surgical Setting: Review of Patient Safety and Satisfaction in 414 Cases, 20 J oumal of Minimally Invasive Gynecology 56, 56-63 (2013). - 16 - important revenue source for OBS providers, undermines that goal and cannot have been consistent with the legislative intent. F or this additional reason, the Second Department's ruling should be reversed. CONCLUSION For the stated reasons, and those in Avanguard's merits briefs, the Court should reverse the Second Department and hold that, in appropriate circumstances, accredited office-based surgery providers may recover facility fees under the no- fault laws. Dated: New York, New York December 21, 2015 - 17 - OFFICES OF GARY 1. FIELDS, PLLC 1441 Broadway, 3rd Floor New York, New York 10018 Tel: (212) 593-4900 Fax: (347) 587-8088