Public Health and Health Planning Council Approves Recommendations To Create Retail Clinics, Reform Urgent Care

January 9, 2014 | Corporate | Health Services

The Public Health and Health Planning Council (the “Council”) voted on January 7th to approve its report on ambulatory services (the “Report,” viewable here), completing an initial step in the process of expanding and reforming ambulatory service clinics in New York.1

The Report seeks to regulate various classes of ambulatory service centers in the State. To illustrate the perceived need to expand regulations in this area, Commissioner Dr. Nirav Shah of the Department of Health likened the current situation to the “Wild West” while advocating for the Report’s reforms. The most noteworthy reform to come with the approval of this Report is the Council’s suggestion to create “Limited Service Clinics,” retail clinics that are commonly seen in pharmacies and big box retailers in other states. The Report also proposes more stringent regulations of Urgent Care Centers and satellite emergency departments, as well as expanding review of office-based surgery data and eliminating Upgraded Diagnostic and Treatment Centers.

With the Council’s unanimous approval of the Report (as amended at the meeting), the Report will be presented by the Council to the Commissioner and the State Legislature for their consideration on the matters discussed therein. The Commissioner will then have to exercise his authority to promulgate new or revised regulations to make the regulatory changes contained in the Report, and the Legislature will have to enact the legislative changes suggested. There are no timetables as of yet for either of these actions, as they are outside the control of the Council. For its part, the Council has stated in its meetings that it considers the Report “phase one” of its review of ambulatory services, and will now turn its attention to payment systems for these proposed ambulatory service centers.

The most noteworthy part of the Report is the recommendation to create legislative and regulatory changes to allow for the creation of “Limited Service Clinics” within the State. Otherwise known as Retail Clinics, this model is becoming more prevalent in other states. As it occurs most commonly, a small clinic is placed in a pharmacy, drug store, or big box retailer (like Costco or Sam’s Club). The clinic is staffed by a combination of nurse practitioners and physician’s assistants with physician oversight. The clinic provides basic immunizations (like the flu shot) and simple physicals or examinations for minor health ailments. Commissioner Shah remarked that while once novel, these types of clinics are becoming increasingly common, saying “remember the first time you walked into a supermarket and saw a sign for flu shots? . . . more and more care is delivered outside the walls of a hospital or clinic.”

The Report makes it clear that Limited Service Clinics will not provide recurring care, will not provide laboratory tests (except for CLIA-approved tests), and will not treat infants or immunize children (so as to encourage regular contact with a child’s pediatrician). While a very limited number of such clinics currently exist in New York as physician’s practices with leased space within the retail store, the Report proposes licensing Limited Service Clinics as a new category of Article 28 diagnostic and treatment centers.  This would allow the retail store itself to own and operate the clinic as well as providing the professional services under an exception to the State’s corporate practice of medicine doctrine. During the meeting, a council member analogized the structure to the current scheme for dialysis centers within the State. While the Limited Service Clinic would be an Article 28 facility, it would require a less stringent CON review, including an architectural review by DOH to assure that health and safety requirements are met and, in addition, accreditation from a national agency. The Council felt that Limited Service Centers, and all the ambulatory care centers discussed in the Report, would be an effective way to expand access of care and alleviate some of the strain on primary care physicians, especially with the rapid growth in the number of New York residents with health insurance.

The Report, and the Council’s meeting, did not focus solely on Limited Service Clinics. Also discussed was the issuance of clearer guidelines for Urgent Care Centers, though there were few significant changes for Urgent Care Centers since the last iteration of the Report. The Council also discussed Free Standing Emergency Departments (which it now refers to as “Hospital-Sponsored Off-Campus Emergency Departments” or “Satellite Emergency Departments”). The creation of Satellite Emergency Departments that operate less than 24/7 continued to be a point of significant discussion, as it had in previous meetings, but the Council decided to approve the Report as it stood and allow such emergency departments to operate on a less than full time basis. Their justification was that in some rural areas, the parent hospital would be unable to operate the emergency department full time, and would instead opt to close it completely rather than operate the Satellite Emergency Department at all.

Additional minor amendments to the currently published report were made at the meeting, including requiring Urgent Care Centers to train staff on directing patients to primary care providers similarly to Limited Service Clinics, and clarification on the CON review for Satellite Emergency Departments.

Future alerts will be provided as the Report is further considered by the Commissioner and Legislature and as the Council proceeds to “phase 2” of its analysis and recommendations. Please contact Benjamin Malerba at benjamin.malerba@rivkin.com or Gregory Mitchell at gregory.mitchell@rivkin.com with any questions or comments. 

[1] Our previous analysis of the Report, and how it advanced to this meeting, can be read here and here.

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