One day you may find a letter from the department of health in your inbox. You’ve been performing some office procedures saving your insured time and money, but now the Department of Health has selected you for scrutiny. Regulators are tightening up on office procedures throughout the nation. If your staff has opened the letter they will likely be scared as it will imply they could be liable. If you’ve been careful to stay an office practice you’ll hopefully come out alright and not have to spend a bunch of money to get licensed as an ambulatory surgical facility.

   T.C.A. §68-11-204 (a) (1) provides that no person shall operate an ambulatory surgical center (hereinafter "ASF") without a license as "defined in this part". T.C.A. §68-11-201 (3) defines an ASF as a "institution, place, or building devoted primarily to the maintenance and operation of a facility for the performance of surgical procedure". Excluded from this definition are "private physicians’ and dentists office practices", unless abortions are performed therein. The practice of medicine is defined in §63-6-204(a) (1) as "any person … who treats, or professes to diagnose, treat, operates on or prescribes for any physical ailment or any physical injury to or deformity of another".

   The Court of Appeal of Ohio in an unpublished decision discussed the issue as regard to a similar statue and provided several elements in whether a physicians office constituted an ASF such as percent of medical care constituting procedure and the employment of physicians as independent contractors. Founder’s Women’s Health Center v. Ohio State Department of Health, (Ohio App. 10 Dist.), 2002 WL 1933886. The first listed factor is if "a physician is a sole practitioner performing procedures on his or her own patients." Founders v. Ohio, 2002 WL 1933886,6. Other factors listed are the relationship of the owner to the entity, manner held out in advertising, if there are multiple physicians performing procedures, and if the facility is a billed fee. Founders v. Ohio, 2002 WL 1933886,6.

   It should also be noted that legal precedent on this subject is extremely sparse and usually concerns abortion clinics. So the precedent isn’t always the greatest. The keys are to make sure no outside physician use your facility, don’t put any indication anywhere that you practice in a certified "facility" rather than a "certified office facility, and be conservative in the number of advanced procedure you perform.