Surgical Practice Licensure: Department of Health Training Sessions

On January 16, 2018, New Jersey Governor Chris Christie signed A-4995/S-287 into law, requiring all registered surgical practices to become licensed by the New Jersey Department of Health (DOH) as Ambulatory Surgical Facilities (ASCs). The passage of the law created a number of new opportunities for such facilities upon becoming licensed, including the ability to take on non-physician capital partners and allow non-owners to utilize the facility. Additionally, the law provides a vehicle for expansion by permitting combinations between surgical practices and licensed ASCs which were otherwise prohibited by the current moratorium.

However, with the passage of the law also came a great deal of concern and uncertainty among registered surgical practices regarding the licensure process and corresponding regulatory requirements applicable to ASCs. Specifically, in order to obtain and maintain licensure as an ASC, these one-room facilities are now required to comply with DOH regulations governing matters such as staffing, infection control, emergency services, human trafficking and physical plant requirements.  In most instances, strict compliance with these requirements would be cost-prohibitive for registered surgical practices.  While the law attempted to minimize the burden associated with licensure, including exempting CMS certified or accredited facilities from certain physical plant requirements, the initial lack of guidance from the DOH left many registered surgical practices in a state of limbo.

In response, the DOH recently hosted a series of two-hour training sessions to assist registered surgical practices with navigating the licensure and survey process. Key take-aways with respect to the training sessions include:

  • If your surgical practice registration is set to expire before you become licensed, you must apply for renewal during the interim period.
  • Applications for licensure as an ASC (i.e., CN-7) must be submitted to the DOH by January 15, 2019.
  • If you have already filed the CN-7, you must resubmit the application to the DOH.
  • Once the CN-7 has been filed, plan for 90 to 120 day review period for DOH approval.
  • You should not submit the CN-7 until your facility is ready for the on-site survey, which will take place approximately four to six weeks after the DOH approves the CN-7. As such, you should take all steps necessary to ensure you are in compliance with all applicable DOH requirements at the time of submission.
  • The DOH intends to take a “functionality approach” with respect to the physical plant requirements applicable to non-exempt facilities. For example, rather than requiring a facility to install sprinklers, the DOH will evaluate whether the facility has implemented alternative safeguards ensure patient safety in the event of a fire (e.g., fire extinguishers and evacuation plan). Additionally, your facility may request waivers from certain licensing requirements by filing a CN-28. 
  • If you recently had a Medicare survey conducted by the DOH, you may be able to the initial state licensure approval survey by attestation.
  • If you intend to make extensive renovations to your facility, relocate your facility, or combine with another facility, you may no longer benefit from “grandfathering” under the law with respect to physical plant requirements, licensing fees, ambulatory care assessments and the like. However, you may be able to expand the scope of services offered by your facility (e.g., conscious sedation to general anesthesia) without waiving your grandfathered status.

If you have any questions regarding the licensure process or the DOH training sessions, or if you are interested in exploring opportunities presented by the new law, contact Frier Levitt today to speak to an attorney.