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Godfrey & Kahn Updates

Physician Clinic Construction May Require Hospital Building Code Compliance

Summer 2007 | Volume 2, Issue 2, Health Law Vantage Point

Historically, there was a clear distinction between clinics and hospitals. Recently, the line between these two types of facilities has begun to blur, with clinics and clinic-like facilities providing many of the services that were formerly available only at hospitals. Operators of these clinic-like facilities need to be mindful of the fact that if their facilities are too much like a hospital, they may become subject to stringent (and costly) hospital building codes (see Example A and Example B below).

In Wisconsin, health care building codes are a maze of complex and interrelated requirements imposed by Wisconsin law, the International Code Council’s International Building Code (the IBC), and the National Fire Protection Association’s Life Safety Code (the LSC). The purpose of this article is to help health care providers navigate this maze.

In determining which building codes apply to a health care facility, the first step is to determine whether or not the facility is a “hospital” under Wisconsin law. If the facility is a hospital, it is subject to both the LSC and the IBC. If the facility is not a hospital, it is only subject to the IBC.

Generally, clinics and physicians’ offices are exempt from the definition of hospital, but as clinics and clinic-like facilities begin to resemble hospitals, they risk becoming subjected to hospital building codes. The Wisconsin Administrative Code (refining the statutory definition) defines a hospital as: [A]ny building, structure, institution or place that does all of the following:

  • Offers inpatient, overnight care on a 24-hour-a-day basis, or on an as-needed basis in the case of a critical access hospital.
  • Devotes itself primarily to the maintenance and operation of facilities for the diagnosis and treatment of, and medical or surgical care for, three or more non-related individuals ... suffering from illness, disease, injury, or disability, whether physical or mental, or who are pregnant.
  • Regularly makes available at least clinical laboratory services, diagnostic x-ray services and treatment facilities for surgery, obstetrical care or other definitive medical treatment ...

  • In addition, hospitals may also include “related facilities such as outpatient facilities.”

    If a health care facility falls within the statutory definition of hospital, it must comply with the applicable provisions of the LSC. Compliance as a hospital under the LSC can be complicated and costly.

    Whether or not a heath care facility falls within the definition of a hospital, the facility must still comply with building codes established for health care facilities by the state of Wisconsin and by the IBC. Regulations under the IBC are not “one size fits all” and can vary for different types of health care facilities. Depending on the services to be provided in the facility, applicable building codes can be more or less stringent. As building codes become more stringent, construction and renovation costs tend to increase.

    During the development stage of a new or renovated health care facility (or when planning a shared operations agreement), a health care operator should consult a knowledgeable architect to determine the applicable building codes and an experienced attorney to evaluate how to structure the project to achieve the operator’s business goals and avoid unexpected costs due to building code issues. By making this determination early, the health care provider can avoid making costly renovations later.

    The following examples illustrate how with a little advance planning, there are steps that health care providers can take to avoid unfortunate results.

    Example A:

    Company A operates an 18-hour urgent care facility, and is acquired by Company B, which proceeds to operate the facility as a full-service 24-hour hospital. A building inspection determines that the building does not comply with the more restrictive building codes applicable to hospitals, and Company B is faced with the decision of whether to update the facility in compliance with such codes or reduce the offered services.

    In this example, before expanding the urgent care clinic into a hospital, Company B should investigate whether the existing facility is in compliance with the stricter building codes applicable to hospitals, and if not, whether there is a way to expand the services of the urgent care facility without causing it to be subject to the more restrictive hospital code requirements.

    Example B:

    Company X operates a physical therapy clinic. Company Y in the neighboring building operates a hospital. The companies desire to connect their buildings and share certain equipment/facilities. If the buildings are subsequently viewed as one facility, the physical therapy clinic could become subject to hospital building codes, potentially requiring costly renovations.

    In this example, before constructing a physical connection between their buildings, Company X and Company Y should evaluate whether the building connection taken together with the shared equipment/facilities is likely to be viewed as one facility for purposes of building code compliance. If this is a significant risk, they can investigate ways to share equipment and facilities without constructing a physical connection that triggers the building code issue.

    Godfrey & Kahn’s Construction and Design Law Team has worked with the firm’s Health Care and Real Estate Teams to provide clients with support on a number of major health care facility projects. For further information, contact Jennifer Vallier ( or 414-287-9311), Jeffrey Femrite ( or 608-284-2645), or any other member of these teams.

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