February 6, 2014

If you missed yesterday's webinar we reviewed exposure areas for practices - patients, payors, third parties and employees.  We discussed recent cases of colleagues facing exposure and discussed tips on how to keep your practice compliant and off the radar.  Click here to view - https://www.youtube.com/watch?v=RThqxW8fWWk&feature=youtu.be.



I am aware in NY I need to perform certain services at a hospital, article 28 or OBS facility that require anesthesia.  A friend owns an OBS and offered to let me rent.  Is that kosher?

Thanks, Dr. L


Nope.  This exact question is directly addressed by the department of health on its website  - http://www.health.ny.gov/professionals/office-based_surgery/obs_faq.htm - which is worth reviewing if you own, operate or are considering owning or operating an OBS, because the FAQs have been significantly revamped.  The full answer to today's question is below, copied from the DOH website -

33. Are physicians who are not part of or affiliated with an accredited OBS practice permitted to use the physical office space of the accredited OBS practice to perform procedures or provide anesthesia services?

No. Only those practitioners who are part of the practice, as defined below, may perform procedures or provide anesthesia services in an accredited OBS office.

State Education Law prohibiting the corporate practice of the professions in NYS only allows private physician practices to be legally structured as one of the following: a sole practitioner; professional corporation (all of the shareholders, officers and directors must be physicians); professional limited liability company (all of the members and managers must be physicians); or university faculty practice corporation (all of the officers and directors must be physicians); general partnership (all of the partners must be physicians); or registered limited liability partnership (all of the partners must be physicians).

Physicians or non-physician licensed health care practitioners may not perform OBS unless they are part of the practice as noted above or affiliated with the practice as employees of the OBS practice or working under a contractual arrangement with the OBS practice to perform procedural and/or sedation/anesthesia services, as applicable.

The contractual agreement must spell out the terms of the affiliation between the accredited OBS practice and the affiliated physician or non-physician health care provider(s) and at a minimum require the following:

  • Credentialing and privileging of all licensed independent practitioners (physicians, podiatrists, nurse practitioners, certified registered nurse anesthetists);
  • Adherence to the accreditation related policies, procedures and protocols of the accredited practice including but not limited to patient rights, provision of care, infection control and record keeping;
  • Participation in the quality management and performance improvement activities of the OBS practice, and;
  • Reporting of adverse events identified in PHL § 230-d (See Q&A 23 above).

The accrediting agency of the OBS practice must be made aware of all OBS practice affiliations and credentialed/privileged practitioners.

Physicians/licensed practitioners who are not part of or affiliated with an accredited OBS practice may not perform procedures or provide anesthesia services in an accredited setting on their own behalf simply because they have entered into arrangements such as real estate leases that allow them to use space in an accredited OBS setting.

10 NYCRR § 600.8 provides detail regarding when a private practice must become licensed as an Article 28 health care facility. If a practice is "sharing" their accredited space with a physician or other licensed practitioner, then the practice should be careful to ensure that it is not subject to enforcement action as a scofflaw Article 28 facility.