Understanding the Wright Approach

Concern about hospitals sharing space has caused angst for several years. But as reiterated by Centers for Medicare & Medicaid Services (CMS) official David Wright, the Director of the Quality Safety and Oversight Group at CMS, that concern is unnecessary. 

Before focusing on that issue, I want to steal a page from my friend Dr. Ronald Hirsch, who has annually named his “Hirsch’s Heroes” – individuals in the healthcare industry he feels deserve being singled out for praise and recognition. This is just a one-time deal, but I would like to name Mr. Wright as “David’s Hero.” At the American Health Lawyers Association conference in Baltimore last week, Mr. Wright spoke about hospital surveys. He is everything I would hope for in a regulator. He is practical, striking exactly the right balance between patient safety and administrative burden. He is also committed to transparency. His session contained several things worth discussing. 

You may remember that in May 2019, CMS issued draft guidance about situations in which two hospitals or a hospital and a clinic shared space. The draft guidance was extraordinarily complicated, indicating that having patients walk in the hallway through the space of one hospital to get to space for another hospital was potentially problematic.

The guidance caused quite a stir. Ultimately, common sense prevailed, and the final guidance issued in November 2021 is quite straightforward. Despite being several pages long, I think you can boil it down to two sentences. First, “each hospital is responsible for meeting all the conditions of participation. If the hospital shares space with another facility, it may not try to avoid a citation by claiming the problem is the other guy’s fault.” That policy seems quite fair to me, and very easy to explain. 

Mr. Wright offered a few other tidbits. Did you know that you can watch all of the educational videos that CMS surveyors are trained with? If you work in a facility like a hospital or a skilled nursing facility (SNF) visited by surveyors, you may wish to check out the website, https://qsep.cms.gov/welcome.aspx.

David also mentioned that President Biden’s current proposed budget would result in several facility surveys that are currently kept private becoming public. As noted, Mr. Wright is a proponent of transparency, wanting to ensure the public can see both the results of governmental surveys and that the healthcare industry has insight into how the agency is monitoring them. 

After Mr. Wright finished his presentation, another lawyer spent about 30 minutes going through scenarios in which hospitals were sharing space. While technically, I agree with the lawyer’s conclusions, I nevertheless was troubled by the presentation. In my opinion, spending 30 minutes analyzing scenarios is obfuscation, not simplification. The draft guidance suggested there could be risks associated with sharing space. I thought that the draft guidance went far beyond the authority of the regulations. If that guidance had been finalized as drafted, there would be reason for carefully scrutinizing it. But the final version was radically different. As finalized, the guidance treats shared space the same way all other space is treated: a hospital is on the hook for events in the shared space, exactly as it is when the space is unshared. 

There are definitely times I have expressed frustration with oversight. But I readily acknowledge that it is essential, and also that there are times it’s really well done. David Wright is well-named because he is literally “Mr. Right” when it comes to oversight. If you have a situation where you think CMS’s position with respect to certification is wrong, calling Mr. Wright could be a good strategy. He will be thoughtful and fair. But I want to emphasize a key point. Calling CMS when you have determined that the agency’s position is imposing an unreasonable burden is wise. But that is very different from calling CMS to ask about their position on a matter. 

When trying to determine the state of the law, it is essential to do research into the statutes and regulations and consider any policy statements. Some lawyers think that “research” consists of calling a helpful government official and asking for their thoughts. That is not research; it is laziness. You can call the government without paying a lawyer! If your counsel answers questions by calling CMS, you either need a new lawyer or, if you are fine with doing whatever the government says, no lawyer at all. There are two big takeaways from Mr. Wright’s session. First, we should all be grateful to him for his willingness to come present at conferences, and for his wisdom. Second, there are lawyers who are willing to overcomplicate issues. If you have one of them, you will lose much of the benefit received from the reasonable approach offered by CMS.