Closure Policy of a Facility Or Any Portion Of A Facility under 25 U.S.C. § 1631(b)

Refer to: OQ/OCPS

1. PURPOSE.  The purpose of this policy is to implement the requirements for the closure of facilities at 25 U.S.C. § 1631(b).  Accordingly, this policy establishes the internal agency reporting and congressional reporting procedures for the temporary or permanent closure of an Indian Health Service (IHS) facility, or any portion thereof. For purposes of this policy, permanent closure includes the conversion of an emergency department (ED) to an urgent care clinic or department.     
2. BACKGROUND.  The decision to permanently close an IHS facility may be based upon a variety of different factors, alone or in combination.  Factors may include, but are not limited to: the needs of the community; an inability to address environmental, safety, or medical concerns; or the end of the useful life of the existing facility or portion thereof. For example, through consultation with local tribes, the IHS may determine that the beneficiaries are better served by a different type of health care model.  This could necessitate the closure of an older facility or department/unit in order to redeploy resources to a new health care model better suited to meet the needs of the beneficiaries served.  Pursuant to 25 U.S.C. § 1631(b), any IHS decision to close an IHS facility must meet congressional reporting requirements, unless it is a temporary closure necessary for medical, environmental, or safety reasons.  Once an IHS facility has been closed, accreditation organizations and the Centers for Medicare & Medicaid Services (CMS) will also require notification of the closure within 30 days, or sooner if required to meet accreditation or regulatory requirements.
   
   In addition to permanent closures, IHS facilities may experience unexpected events that require the temporary closure of the facility for medical, environmental, or safety reasons.  Temporary closure of an IHS facility may be necessary, for example, to maintain patient and staff safety when quality and safety standards are unable to be met. As noted above, such temporary closures do not require reporting to Congress under 25 U.S.C. §1631(b)(2), and should follow the procedures established by this policy.
3. SCOPE.  This policy applies to the temporary or permanent closure of IHS facilities, or the IHS-operated portion of an IHS facility, and the permanent conversion of the types of patient care services provided by IHS at an IHS facility.  For example, the conversion of an ED to an urgent care department would be considered a permanent closure under this policy. This policy does not apply to changes in designation alone, such as the change from a “hospital” to a “critical access hospital” designation.  Nor does the policy apply to the discontinuation or suspension of a particular service, if the facility or portion thereof remains open to provide the general type of services intended.  For example, the particular services offered at an IHS clinic may vary over time, and this policy would not apply to those changes unless the changes require the temporary or permanent closure of the clinic.
4. POLICY.  The IHS policy is that facilities follow the procedures described in this Circular for the temporary or permanent closure of an IHS facility or any portion thereof to ensure safe patient care.
   1. Relationship to other IHS policies.  This policy is intended to be implemented consistently with, where applicable, Area or Service Unit policies intended for specific types of facilities and with policies that may apply based upon the cause of the temporary closure, such as internal disaster policies or emergency environmental policies.
   2. Emergency Department Diversion.  A diversion is not a closure, and this policy is not intended to apply to diversions.  As such, this policy does not supersede IHS ED policies required to meet Conditions of Participation (CoP) and to ensure compliance with the Emergency Medical Treatment and Labor Act (EMTALA) obligations.
      1. (1) If the ED is on diversion, the facility ED diversion policy must be followed.
      2. (2) If an ED is temporarily closed, this policy must be followed.
5. DEFINITIONS.  The terms listed in this section are intended for the purposes of carrying out this policy.
   1. Condition-Level Deficiencies.  Findings by CMS that identify noncompliance with an entire CoP or multiple standards within a condition.
   2. Environmental.  Relating to or associated with the internal or external environmental issues that impair a facility’s ability to provide safe care.
      1. External environmental issues examples may include, but are not limited to: weather-related conditions or wildland fires.
      2. Internal environmental issues examples may include, but are not limited to: infrastructure deficiencies, including water or sewer issues; or structural damage from natural disasters.
   3. Facility or IHS Facility.  This includes all IHS-operated hospitals and outpatient health care facilities, such as a hospital, critical access hospital, or rural emergency hospital; residential treatment facility; outpatient health care facility; or relevant portions thereof.
   4. Immediate Jeopardy.  The most serious CMS CoP deficiency type, and carries the most serious sanctions for providers and facilities.  Immediate Jeopardy represents a situation in which entity noncompliance with CMS CoP has placed the health and safety of beneficiaries in its care at risk for serious injury, serious harm, serious impairment, or death.
   5. Portion of an IHS Facility.  A designated department or unit within an IHS facility, such as an intensive care unit, inpatient ward, or obstetric unit.
   6. Medical.  Issues related to the practice of medicine, such as staffing deficiencies or an inability to provide high-quality medical care.
   7. Permanent.  Not expected to change in status, condition, or place, such as a closure that is not intended to be temporary.
   8. Temporary. Intended to last for a limited time, such as a closure that will end once a particular environmental, medical, or safety concern is resolved.  This includes intermittent and indefinite closures necessary to resolve environmental, medical, or safety concern(s).  Examples may include, but are not limited to: sewage spills, adverse weather events, and wildland fires.
   9. Short-Term Safety/Weather/Environmental-Related Temporary Closure.  A short- term closure justified by imminent dangerous situations, including weather or environmental factors, severe enough to warrant a closure of an IHS facility but which are not expected to last longer than one week.
   10. Quality and Safety Standards.  The minimum quality and safety standards that must be met to continue operating a facility.  Examples of unmet safety standards that would justify a temporary closure include: immediate jeopardy; immediate threat to health or safety; and/or condition-level findings that place an immediate threat to patient or workforce health and safety; inability to maintain life-safety codes; or security incidents.
6. AUTHORITY.
   1. 25 U.S.C. § 1631(b)
   2. Snyder Act (25 U.S.C. § 13)
   3. Transfer Act of 1954 (42 U.S.C. § 2001 et seq.)
7. RESPONSIBILITIES.
   1. IHS Director.  The IHS Director delegates and retains authority to determine if conditions warrant temporary or permanent closure of an IHS facility.
   2. Area Director.  The Area Director (AD) recommends the temporary or permanent closure of an IHS facility to the IHS Director or their designee.
   3. Chief Executive Officer.  Under program authorities delegated by the IHS Director, and consistent with local policy, the Chief Executive Officer (CEO) of a facility determines if imminent dangerous situations warrant a short-term safety/weather/environmental-related temporary closure (i.e., an emergency temporary closure of an IHS facility, due to safety/weather/environmental reasons, that is intended to last less than a week).  When conditions are deemed safe, the CEO is responsible for notifying the AD and relevant governing body (GB) of the short-term safety/weather/environmental-related temporary closure. For other types of closures, the CEO works through the AD and GB to recommend a closure decision to the IHS Director.  Throughout the process, the CEO should provide notice and instruction to employees on potential closures.
   4. Governing Body.  Through the AD, the Governing Body (GB) recommends a temporary or permanent closure decision to the IHS Director, consistent with the authority delegated in the Governing Body Bylaws.
   5. IHS Facility Employees.  Employees must stay informed about declarations of emergency conditions and follow instructions provided by the facility CEO, their designee, or the Area Office (AO).
   6. Director, Office of Public Health Support.  The Director of the Office of Public Health Support (OPHS) is responsible for updating the facility list consistent with Section (9)(A)(9) of this Circular.
   7. Principal Statistician, OPHS.  Must review and certify updates to the input statistical information consistent with Section (9)(A)(8) of this Circular.
8. TEMPORARY CLOSURE.  A temporary closure of an IHS facility may only occur if such closure is necessary due to medical, environmental, and/or safety reasons.  Where possible, this decision will be made based on a collaborative discussion between the IHS facility CEO, facility GB, AO, and Headquarters (HQ) staff.

   If the contemplated closure would impact an ED, mitigating factors and resources should be exhausted and discussed amongst the AD, CEO, and GB prior to proceeding with the closure recommendation.  All mitigating factors considered during closure discussion, including factors to ensure patient, staff, and public safety, are to be documented in the recommended decision.  In addition, the closure recommendation should include documentation of discussed mitigation efforts to reduce the impact on patient, staff, public safety, and community resources, and be developed in collaboration between the AD, facility CEO, GB, and, when possible, the Deputy Director for Quality Health Care.

   Short-term safety/weather/environmental-related temporary closures intended to last less than a week will follow current Area and Service Unit policies.

   For all other temporary closures, the following procedures apply:

   1. Temporary Closure Procedures.
      1. Perform and document the results of a risk assessment/analysis of impact to determine the basis for the temporary closure, and evaluate any potential impact on the community prior to the proposed temporary closure.  If possible, also identify if the IHS facility can correct process problems and reduce the likelihood of adverse safety or harm events prior to temporary closure.
      2. The AD, in collaboration with the facility’s CEO and GB, will submit the written recommendation for temporary closure to the IHS Director or their designee.  See IHS Circular Exhibit 24-10-A, “Temporary Closure Decision Memorandum.”

         The recommendation should include, at a minimum:

         1. The basis for the recommended closure (i.e. environmental, medical, and/or safety reasons) and explanation of the underlying facts;
         2. A risk-assessment analysis documenting the risks and benefits of a temporary closure, including the risk of not closing versus the benefit of the temporary closure;
         3. An analysis of the anticipated impact of the temporary closure on the community;
         4. Anticipated dates of closure;
         5. List and description of internal and external notifications; and
         6. Recommendations and timeline for correcting the issues justifying the temporary closure.
      3. If the recommendation is approved by the IHS Director (or their designee), the AD will notify the IHS facility CEO of the approval for the temporary closure.
      4. The CEO of the facility must notify internal and external partners, consistent with the notification requirements set forth in this policy.
      5. Once the above steps have been completed, proper notifications to relevant payors and accrediting bodies should ensue.
         1. The facility must notify CMS and accreditation organizations, in accordance with established notification requirements, regarding changes in capacity or services offered.
      6. If a facility anticipates that the circumstances requiring a temporary closure will continue indefinitely, such that a permanent closure may be the only viable solution, the procedures for permanent closures outlined under Section 9 must then be followed.
   2. Temporary Closure Notification Requirements.
      1. Notification of external entities.  The facility must develop and implement a plan to promptly notify the following external entities of a temporary closure, once the closure recommendation is approved by the IHS Director or their designee.  Notifications to include:
         1. Patients impacted by the temporary closure.  Provide timely and widely distributed communication on alternative options for care and a point of contact for patient questions.
         2. Tribal leadership and other tribal partners, including the Bureau of Indian Education (BIE) and any tribal schools or colleges impacted by the temporary closure.
         3. Nearby facilities, including Urban Indian Organizations (UIO) that might be impacted by the temporary closure.  Document the names of the facilities notified and, if applicable, include the anticipated time of closure.  Provide other facilities as much notice as possible.  Early notifications, if applicable and where possible, will allow the local facilities adequate time to prepare for any potential increase in complexity or volume to maintain patient safety.
         4. Emergency Medical Services (EMS), if applicable and based on anticipated time of closure.  Similar principles of early notification apply, as EMS will need time to prepare for an increased demand for services, potential increase in complexity of care requirements and/or extended patient-transport times.
         5. CMS and accreditation organizations for deemed status, as dictated by applicable CoPs.
      2. Notification of internal partners.  The facility must develop and implement a plan to promptly notify the following internal partners of a temporary closure, once the closure recommendation is approved by the IHS Director or their designee:
         1. Facility staff and employees;
         2. Facility Clinical/Medical Director;
         3. The facility’s GB; and
         4. The Deputy Director for Quality Health Care.
9. PERMANENT CLOSURE.  The decision to permanently close an IHS facility or a portion thereof could be based upon a variety of different reasons, alone or in combination.  Factors may include, but are not limited to:  the needs of the community; an inability to address environmental, safety, or medical concerns; or the conclusion of the useful life of an existing facility or portion thereof.  For example, the IHS might determine that the beneficiaries are better served by a different type of health care model.  This could necessitate the closure of an older facility or an existing department/unit in order to redeploy resources to another type of health care model, better suited to meet the needs of the beneficiaries served.  For purposes of this policy, permanent closure also includes the conversion of an ED to an urgent care department.  Permanent closure cannot occur until the requirements of 25 U.S.C. § 1631(b) are met.
   1. Permanent Closure Procedure.
      1. In cases where a permanent closure may be necessary, the facility’s CEO or the AD must submit a written recommendation to the IHS Director to initiate a permanent closure.  The recommendation should set forth the basis for the permanent closure and the views of the tribe or tribes served, if known.
      2. Following the IHS Director concurrence with the recommendation, the AD will work with the IHS Chief Medical Officer (CMO), the facility CEO, and the Office of the General Counsel to prepare a draft report to Congress, including the evaluation of the criteria listed below in Section 9(B).
      3. The report has to be processed and cleared through the IHS ESS Procedures:
         1. Contact IHS ESS prior to draft report to Congress for guidance.
      4. The report has to be processed and cleared through the U.S. Department of Health and Human Services (HHS) Assistant Secretary for Legislation (ASL):
         1. ESS will manage the HHS Clearance process for the IHS.
         2. HHS ASL will submit the final report to Congress.
      5. The Deputy Director for Field Operations will be responsible for coordinating communication with the HQ Public Affairs Staff through this process.
      6. Once the Report to Congress has been finalized and submitted to Congress, proper notifications to relevant payors and accrediting bodies should ensue. When considering permanent closure of an ED, the IHS facility must reevaluate their facility designation status to ensure their ability to maintain CMS CoPs without the operation of an ED. As an ED is considered an essential service of a critical access hospital, closure of this service may lead to termination of CMS certification due to inability to meet CoPs. The closure of an ED in a hospital changes the status of hospital designation, which the hospital must then have modified by its accreditation organization. Therefore, when IHS facilities are considering permanently closing an ED, it is recommended they consider alternate facility designation status and conversion of services.
      7. The IHS Reports on Proposed Closure are available on the Newsroom section of the IHS website, listed under “Reports to Congress.”
      8. An Area Statistical Officer will change the facility status in the Standard Code Book for approval by the IHS HQ Principal Statistician.
      9. Once the facility is closed, OPHS will update the facility list for the IHS CMO, OQ, and the Health Resource and Services Administration.
   2. Permanent Closure Notification Requirements - Report to Congress.  At least one year before the IHS may permanently close an IHS facility or portion thereof, the IHS must submit the Report to Congress addressing the criteria set forth in 25 U.S.C. § 1631(b)(1).  These criteria are as follows:
      1. The accessibility of alternative health care resources for the population served by such hospital or facility;
      2. The cost-effectiveness of such closure;
      3. The quality of health care to be provided to the population served by such hospital or facility after such closure;
      4. The availability of Purchased/Referred Care funds to maintain existing levels of service;
      5. The views of the tribes served by such hospital or facility concerning such possible closure;
      6. The level of utilization of such hospital or facility by all eligible Indians; and
      7. The distance between such hospital or facility and the nearest operating IHS hospital.  In addition, in the event of a permanent closure of an entire facility, the IHS will also consider the distance to IHS clinics that may provide comparable outpatient services.
   3. Notification of External Entities.  The facility must develop and implement a plan to promptly notify the following external entities of a permanent closure, after HHS has submitted the final Report to Congress:
      1. Patients impacted by the permanent closure. Such notice must be timely, widely distributed, and include both alternative options for care and a point of contact to answer patient questions.   
      2. Tribal leadership and other tribal partners, including any BIE institutions or tribal schools and colleges impacted by the permanent closure.
      3. Nearby facilities, including UIOs and non-IHS facilities that would receive patients. The IHS facility should include and maintain a list of facility notifications, which should be given as early as possible to allow adequate time to prepare for potential increase in complexity and surge in volume, to maintain patient safety.
      4. Relevant EMS providers, if applicable. Adequate notice should be provided to prepare for a potential increase in demands of higher complexity of care requirements and longer patient transportation times.
   4. Notification of Internal Partners. Facilities must provide timely notice to the following when undergoing a permanent closure and work with appropriate IHS offices and departments to further mitigate the impact of closure on personnel:
      1. Facility staff and employees;
      2. Facility clinical or medical director;
      3. Facility GB; and
      4. The Office of Resource Access and Partnerships.
   5. Timing.  Permanent closure may not occur until at least one year after submission of the final IHS report to Congress.
10. TREATMENT OF HEALTH RECORDS DURING PERMANENT CLOSURE OF A FACILITY.
    
    The anticipated permanent closure of a health care facility should prompt agency officials to begin planning for the disposition of patient health records.  Policies, processes, and procedures will dictate how the records are to be handled, treated, and dispositioned. Agency stakeholders include, but are not limited to, health information management, privacy, quality assurance, and records and information management personnel.
11. SUPERSEDURE.  None.
12. EFFECTIVE DATE.  This circular becomes effective on the date of signature.

Distribution: IHS-wide
Date: 10/15/2024