Summary

In early November 2014, the New Jersey Department of Health (DOH) sent a letter to every physician licensed by the New Jersey Board of Medical Examiners (BME) regarding New Jersey’s statutory requirement that every surgical practice in the state register with DOH. The DOH is scheduled to publish a notice in the New Jersey Register on November 17, 2014 that will provide surgical practices with a final sixty (60) day period to submit a complete surgical practice registration to the DOH. A surgical practice location that does not register or is not eligible to register will be required to cease operations.

In March 2009, then-Governor Jon Corzine signed legislation that included amendments to the so-called Codey Law. The Firm has previously written about the Codey Law amendments here. One requirement of these amendments was that all New Jersey surgical practice locations register with the DOH. In addition to creating the registration process, the Codey Law amendments include restrictions on the relocation of a registered surgical practice, and the regulations require an applicant to disclose certain statistical information to the DOH. Surgical practices in New Jersey need to ensure adherence to remain in compliance.

Following the enactment of the Codey Law amendments, the DOH established two (2) distinct periods in 2012 for affected surgical practices to register with the DOH. The term “surgical practice” is defined at NJSA 26:2H-12(g)(5). According to the DOH letter sent earlier this month to BME-licensed physicians, in addition to the statutory definition, the DOH also considers a surgical practice to be “a physician’s office in which any anesthesia other than local or topical is used for any service, regardless of whether the physician may consider it a procedure and not surgery.” In the same DOH letter to physicians, the DOH stated that it does not consider the following practice locations to be surgical practices and therefore they do not need to register with the DOH: a procedure room used for endoscopies, hysteroscopies and cystoscopies that has a sink in the room; or, a room used only for pain management injections.

According to the recent DOH letter, the DOH registration is available to existing surgical practices that have not yet registered with the DOH and either: were operating on September 17, 2009 (the effective date of the Codey Law amendments); or, had submitted plans, specifications and required documents with the municipality in which the surgical practice is located prior to September 17, 2009. Once a surgical practice is registered it will have six (6) months to achieve certification by the Centers for Medicare and Medicaid Services (CMS) or be accredited in surgery by an accrediting body recognized by CMS.

The DOH letter states that any surgical practice that does not fit within either one of these categories must cease operations unless the practice fits within a Codey Law statutory exception or it can demonstrate to the DOH that it is taking steps to comply with one of the statutory exceptions.

For New Jersey practices that already hold a registration certificate from the DOH (note that each location requires its own registration), the DOH letter confirms that no further action is needed by those medical practices.

The DOH letter is emphatic that this will be the FINAL (emphasis as provided in the DOH letter) registration period for surgical practices. There continues to be a moratorium on new surgical practices in New Jersey.

In addition to reviewing the letter sent by the DOH and reviewing the NJR when it is published, New Jersey medical practices should do the following:

• confirm whether each practice location is required to register as a surgical practice;
• confirm whether each practice location is already registered as a surgical practice;
• for those practice locations that have not registered, confirm whether it can meet the statutory requirements to register as a surgical practice; and
• complete the registration process for each location and abide by New Jersey statutes and regulations, and direction from the DOH.