Compliance Challenges in Implementing New Surgical Smoke Laws

Since 2018, eleven states have enacted laws requiring surgical smoke evacuation for planned surgical procedures in their operating rooms. Of these, six are already in effect, and the remaining five will be effective in the next two years.^[i]

States vary in their evacuation compliance history and their law’s stated enforcement authority. Broadly speaking, each state’s law requires its licensed hospitals and ASCs to “adopt and implement a policy” either “requiring evacuation of surgical smoke” or “preventing human exposures to surgical smoke” for each planned procedure which generates surgical smoke.

AORN is here for you; we still have work to do.

Policy Adoption and Implementation Assistance

If you live in a state with a law in effect now or enacted to be effective later this year or next year and your facility is not consistently evacuating surgical smoke, the first thing you should do is make your surgical services leadership and risk management aware of the law. AORN maintains current references for surgical smoke laws in its Surgical Smoke Laws chart available on its Government Affairs Surgical Smoke page.

When making your surgical services director and risk management leaders aware of the new law, a great way to start the discussion may be to offer assistance in writing the facility’s policy. AORN’s Go Clear resources are widely available without cost to facilities to assist in implementation.

Compliance and Enforcement Assistance

Most surgical smoke evacuation state laws fall within the state’s hospital and ASC licensing framework. Some require facilities to provide a copy of their surgical smoke evacuation policy to the licensing authority (usually the state’s Department of Health). Few, if any, facilities will experience state licensing surveys which ask for the facility’s smoke evacuation policy.

In other words, compliance and enforcement for these new laws will be largely complaint-driven. If you are working in a facility in a state with a smoke evacuation law in effect and your facility is not evacuating, it is your responsibility to talk to your leadership and provide feedback on the policy and any violation. If policy implementation and compliance continue to be a struggle, your next step is to make a complaint to the enforcement authority in your state. These agencies are listed in AORN’s Surgical Smoke Laws chart. AORN Government Affairs staff are also available to consult and discuss a state-specific strategy with you to bring noncompliance and other concerns to the attention of your enforcement agency without causing you undue attention or potential retaliation at your facility.

For assistance in smoke evacuation facility policy adoption and implementation operations, please contact AORN’s Go Clear project and program specialist, Hannah Campbell at [email protected].

For assistance in setting a compliance and enforcement strategy for your facility, please contact AORN’s Associate Director of Government Affairs, Jennifer Pennock at [email protected].

Want more information on enacting and implementing surgical smoke evacuation legislation? Attend the AORN Global Surgical Conference & Expo session, Surgical Smoke Evacuation Legislation: How to Get it Enacted and Implemented, on Monday, April 3 at 8 a.m. CT.

^[i] These numbers presume NJ A256 will be signed into law by Governor Murphy and go into effect in 2023. The bill was delivered to the governor for signature January 26, 2023.