The following article was published today online by the HCPro newsletter ‘Healthcare Life Safety Compliance’, and is reprinted here with permission.
In a rather surprising interpretation by the Centers for Medicare and Medicaid Services (CMS), all Emergency Departments (ED) are now required to be classified as healthcare occupancies only. For many hospitals this may not be a problem, but for those hospitals that have already classified their EDs as ambulatory healthcare occupancy, they will have to make a change back to healthcare occupancy. This also affects those free-standing Emergency Departments that were designed and approved as ambulatory healthcare occupancies; according to CMS’ recent interpretation, they also must meet the requirements for a healthcare occupancy. And it appears this decision is retroactive to existing conditions.
This all came-about when the accreditation organizations (AO) submitted their revised and updated standards to CMS last fall for the change to the new 2012 Life Safety Code. One particular AO created an introduction to their Life Safety chapter and explained the differences in occupancies and gave an ED as an example of an ambulatory healthcare occupancy. CMS wrote back and said EDs cannot be ambulatory healthcare occupancies and must be classified as healthcare occupancies because they provide sleeping accommodations for patients who are on 24-hour observation.
Many of the AOs objected to this change and pointed out that the ED does not provide sleeping accommodations but rather examination rooms. Even patient-safety advocate groups like the American Society for Healthcare Engineering (ASHE) objected to this new ruling in the initial proposed rule.
“If a patient is on 24-hour observation in an ED, they are still being examined even if they are sleeping”, says Chad Beebe, Deputy Executive Director of ASHE. “It’s an entirely different staffing model than you would find in a nursing floor. It is very similar to Sleep Labs; even though the patient is sleeping, the patient is still being examined. And Sleep Labs are not required to be located in healthcare occupancies because they are providing outpatient services.”
Just like Sleep Labs, patients in an Emergency Department are considered to be out-patients and not inpatients. According to section 220.127.116.11 of the 2012 LSC, a healthcare occupancy is used to provide medical or other treatment of care simultaneously to four or more patients on an inpatient basis, where such patients are mostly incapable of self-preservation.
“How can CMS consider an Emergency Department is required to meet healthcare occupancy if the patients in the department are not even inpatients?” says Brad Keyes, owner and Senior Consultant for Keyes Life Safety Compliance, LLC. “The NFPA definition for ambulatory healthcare occupancy specifically describes emergency departments as ambulatory healthcare occupancies because they are outpatients, not inpatients. Why does CMS feel the need to depart from the NFPA definitions, that have been used in healthcare for decades?”
The financial implications by this excessive interpretation is far-reaching. Many free-standing Emergency Departments have been designed, approved and constructed in compliance with ambulatory healthcare occupancy requirements. Basic egress issues would suddenly be non-compliant, such as corridor width. Healthcare occupancies require 8-foot corridor widths for new construction, where ambulatory healthcare occupancies only require 44 inches. In healthcare occupancies, doors are required to separate the corridor from the exam rooms. In ambulatory healthcare occupancies, doors are not required. The cost to meet these new egressing requirements would be excessive.
Another difference between healthcare occupancies and ambulatory healthcare occupancies is the construction type, which identifies the combustibility and fire-resistance rating of the structural members of the building.
“A free-standing single-story Emergency Department that was constructed to ambulatory healthcare occupancy requirements, is not restricted in the construction type used to build the facility”, says Keyes. “However, that’s not true for Emergency Departments that are required to meet healthcare occupancy requirements. Unprotected wood-frame facilities and certain buildings with exterior non-combustible structural elements are not permitted to be used for healthcare occupancies.”
Converting an existing Emergency Department that has non-compliant construction type for healthcare occupancies would be very costly, if not prohibitively so.
“An additional cost may be in sprinklers”, says Keyes. “New ambulatory healthcare occupancies are not required to be protected with sprinklers, but new healthcare occupancies are. So, if the ED that was constructed to ambulatory healthcare occupancy requirements was not protected with sprinklers, it would have to when it is converted to healthcare occupancy. That will be a substantial cost to install sprinklers in an occupied facility.”
Even if the Emergency Department was constructed as a healthcare occupancy and designed to meet egress requirements for suites, that would have to change. If designed as a non-sleeping suite, the maximum size of the suite is 10,000 square feet. Now, according to CMS the Emergency Department is no longer a non-sleeping suite, but must meet the requirements of a sleeping suite which can be required to be half the area of a non-sleeping suite. That would require the installation of new barriers and doors.
“For many Emergency Departments, the cost to comply with the new CMS interpretation will be an unreasonable hardship”, says Beebe. “Facilities will have to be cited for non-compliance and then submit a waiver request. And there is no guarantee that the waiver will be approved by the CMS regional office.”
This latest interpretation by CMS seems to be in contrast to President Trump’s initiative to lower the cost of regulation. In fact, the new Administration is working to identify and repeal federal regulations that are unreasonable and costly. This interpretation by CMS seems to fit that bill.
Keyes offers an explanation why this interpretation by CMS is not made public. “CMS did communicate with those AOs with hospital deeming authority last fall regarding this interpretation, but so far, they have not notified the public”, says Keyes. “It could very well be that CMS has always believed Emergency Departments to be healthcare occupancies and they now feel there is no reason to make a formal notice, such as a Survey & Certification letter.”
“ASHE has already received reports from members that they have been cited for having Emergency Departments and hospital outpatient departments located in ambulatory healthcare occupancies or even business occupancies”, says Beebe. “The enforcement of this interpretation has already started, and will only grow when the AOs begin their enforcement as well.”