(a) This methodology will be utilized to evaluate certificate of need applications involving the construction or establishment of new ambulatory surgery centers or services or extension clinics of existing centers. It is the intent of the State Hospital Review and Planning Council that this methodology, when used in conjunction with the planning standards and criteria set forth in section 709.1(a) of this Part, become a statement of basic principles and planning/decisionmaking tools for guiding and directing the development of ambulatory surgery services and facilities throughout the State. This methodology is intended to promote the development of ambulatory surgery programs as a cost-effective alternative to inpatient surgery where appropriate. It is also intended that this methodology will provide potential applicants with sufficient flexibility to consider the unique characteristics of their prospective projects in determining need.

1. (1) Ambulatory surgery service, as set forth in section 755.1 of this Title, is a service organized to provide those surgical procedures which need to be performed for safety reasons in an operating room on anesthetized patients requiring a stay of less than 24 hours. A list of procedures appropriate for ambulatory surgery is set forth in section 86-4.40 of this Title. Ambulatory surgery services may be provided in a free-standing ambulatory surgery facility or a hospital-based ambulatory surgery facility. Ambulatory surgery facilities may be either single or multi-specialty.
2. (2) Hospital-based ambulatory surgery services, as set forth in section 405.20(d) of this Title, may be located at the same site as the hospital (on-site) or apart from the hospital (off- site).
3. (3) Free-standing ambulatory surgery services and facilities are certified to operate as diagnostic and treatment centers as set forth in section 600.8 of this Title.

4. (4) Extension clinic shall mean an extension clinic as defined in section 401.1 of this Title.

   (c) Minimum requirements for ambulatory surgery services and facilities.

   Applicants for free-standing ambulatory surgery services or applicants for hospital-based off-site ambulatory surgery facilities must meet the following minimum requirements:

5. (1) all facilities must meet the minimum operating standards of free-standing ambulatory surgery services under article 28 of the Public Health Law as set forth in Part 755 of this Title; and

6. (2) all facilities must meet the minimum construction standards of a diagnostic and treatment center under article 28 of the Public Health Law as set forth in section 715.16 of this Title.

   (d) Determination of public need in certificate of need applications.

   Factors to be considered in determining the public need for ambulatory surgery services and facilities shall include, but not be limited to, the following factors:

7. (1) written documentation that the proposed capacity of the ambulatory surgery service or facility will be utilized sufficiently to be financially feasible as demonstrated by a three-year analysis of projected costs and revenues associated with the program. Written documentation of financial feasibility shall also include, but not be limited to, an analysis of expected demand for ambulatory surgery services and an explanation of how current and expected patient referral and use patterns will make the project financially feasible;
8. (2) written documentation that the proposed service or facility will enhance access to services by patients, including members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health service (for example, low income persons, racial and ethnic minorities, women and handicapped persons) and/or rural populations;
9. (3) written documentation that the facility’s hours of operation and admission policies will promote the availability of services to those in need of such services regardless of their ability to pay. This shall include, but not be limited to, a written policy to provide charity care and to promote access to services regardless of an individual's ability to pay. Charity care shall mean care provided at no charge or reduced charge for the services the facility is certified to provide to patients who are unable to pay full charges, are not eligible for covered benefits under title XVIII or XIX of the Social Security Act or are not covered by private insurance; and
10. (4) written documentation of the facility’s willingness and ability to safely serve ambulatory surgery patients including, but not limited to, such factors as control of infection, quality assessment and improvement, patient transfer, emergency care, credentialing and medical recordkeeping as set forth in Part 755 of this Title.

(b) Terms defined.

(e) Public need for a proposed facility shall be deemed to exist when review and consideration of evidence concerning each of the factors set forth in subdivision (d) of this section results in an affirmative finding.

(f) Determination of need for ambulatory surgery services in a health maintenance organization (HMO).

Notwithstanding anything to the contrary in this section, the addition of ambulatory surgery services to be provided directly to a HMO-enrolled population shall be approved when the HMO can demonstrate to the satisfaction of the commissioner that the provision of services shall be cost-effective and accessible to plan enrollees.