Departure of a Physician From a Group Practice

In February of this year, we issued a Client Bulletin regarding the Ohio State Medical Board’s (“OSMB”) issuance of a regulation that included specifi c rules for physicians “leaving a practice, selling a practice, or retiring from practice.” The regulation codifi ed what had been a generalized practice in these situations. The regulation provides that, in the situation where a physician leaves the service area, he/she must provide at least 30 days advance written notice to the patients he/she has cared for during the past three years as well as provide notice through local newspapers and by posting a sign in the offi ce. For more detail, see our February Client Bulletin (available here: articles/1060.pdf). Although the regulation appeared non-problematic on its face, it can create diffi culties in the group practice setting.

In discussions with OSMB, we have been advised that OSMB interprets this new regulation as placing the notice obligation on the departing physician regardless of the nature of the practice from which the physician is departing. Thus, if a physician is leaving a 10-physician group practice, the departing physician has the obligation of notifying the patients of his/her departure, even if the patients will remain with the group practice. OSMB realizes that complicating factors could arise, such as: (a) the group practice may not want to permit the physician to issue the notice (e.g., the patients of the departing physician also have relationships with other physicians in the group, or the departing physician is subject to a non-compete provision); or (b) it may not be possible to meet the 30 day requirement (e.g., the physician was terminated by the practice immediately or with less than 30 days advance notice). In that event, OSMB has advised us that the departing physician has the responsibility of demonstrating (if ever asked by OSMB) what steps the physician took to meet his/her obligation such as notifying the group of the obligation to notify patients and the response of the group that it would be responsible for issuing the required notices.

Because the notifi cation obligation is an individual physician’s obligation, it becomes questionable whether a group practice could ever be found to have violated the regulation if the group practice fails to follow its requirements. However, a failure to do so would not be a best practice and would arguably require the departing physician to issue notices in order to ensure that he/she would be in compliance with state law. It is therefore in the best interest of a group practice to resolve this matter with a departing physician and, if the group is going to be responsible for notifying patients, then the group should follow the regulation requirements. Should the OSMB change its position, we will let you know.

Scope of Practice of Anesthesia Assistants

Ohio Rev. Code Chapter 4760 (enacted in 2000) defi nes an anesthesiologist assistant (“AA”) as a person to whom the State has issued a certifi cate of registration to assist “an anesthesiologist in developing and implementing anesthesia care plans for patients.” AAs are only permitted to work in hospitals and ambulatory surgery centers. In 2003, the Ohio State Medical Board promulgated regulations regarding the scope of practice of an AA, including Ohio Administrative Code 4731-24-04, which prohibited AAs from performing epidural and spinal anesthetic procedures. Shortly thereafter, an AA fi led suit alleging that the regulation confl icted with the Ohio Revised Code provisions. The case was heavily contested with the Ohio State Medical Board and the Ohio Society of Anesthesiologists arguing in favor of the regulation, and the AA, several hospitals, and several anesthesiologist assistant organizations arguing against it.

On May 23, 2007, the Ohio Supreme Court agreed with the AA and held the regulation invalid. In so doing, the Court held that because the Ohio Revised Code permitted an AA to “assist” an anesthesiologist with the performance of epidural anesthetic procedures and spinal anesthetic procedures, this meant that the AA could carry out (i.e., perform) these procedures so long as the supervising anesthesiologist was physically present in the room. The case citation is: Hoffman v. State Medical Board of Ohio, 113 Ohio St. 3d 376 (2007) and is available here: http:// ohio-2201.pdf.

Accordingly, if you permit AAs to practice in your facility, you also now have the ability (if you wish to do so) to permit them to perform epidural and spinal anesthetic procedures (and any other procedures authorized by Ohio Rev. Code Chapter 4760) provided that (a) the AA has received state certifi cation; (b) the procedure is authorized by a practice protocol adopted by the supervising anesthesiologist (and agreed to by the facility); and (c) the supervising anesthesiologist is providing direct supervision during the procedure i.e., is physically present in the room.