Green Building in Healthcare: Challenges and Choices in a Time of Change

by Geoff White and Anderson Green

Green building design, construction and operation practices have gained widespread popularity in the healthcare industry in recent years, even considering the current challenging economic climate. This trend is likely to continue because green building practices result in both decreased overall life cycle costs and healthier building occupants. This article will briefly examine green building background, discuss the unique needs of healthcare facilities (in relation to green building practices) and finally examine the choices and challenges faced by healthcare facilities in determining whether to design, construct and/or operate a green building facility, with a specific emphasis on legal issues therein.

Green Building Background

According to the United States Environmental Protection Agency (“EPA”), green building is the practice of creating healthier and more resource-efficient models of construction, renovation, operation, maintenance and demolition. The leading vehicles for green building implementation in the healthcare industry are the Green Guide for Healthcare (“GGHC”), a healthcare industry driven system that was created by the American Society for Healthcare Engineering in 2002 and the Leadership in Energy and Environmental Design (“LEED”) rating system administered by the U.S. Green Building Council (USGBC).

Adapting Green Building to the Unique Needs of Healthcare Facilities

There are a number of unique challenges in accomplishing standard green building practices in healthcare facilities, including, among others:

• the need for hospitals and other healthcare facilities to be open with all systems functioning 24/7;
• the high level of dangerous waste produced by healthcare facilities;
• patients’ increased sensitivities to chemicals and pollutants (along with related air circulation issues)
• the need for healthcare facilities to meet stringent regulatory standards which are not applicable to typical commercial developments;
• the fact that healthcare facilities have different transportation expectations than some other places of business (e.g. very few patients can be expected to ride bicycles to the hospital).

As a result of these differences, green building standards for the healthcare industry have taken longer to develop than other uses. Until recently, the healthcare industry generally relied on GGHC in designing, constructing and operating a green building. The GGHC is a voluntary self-certifying program that borrows from, but is not formally connected to the LEED rating system. In a manner similar to the LEED system, GGHC gives a certain number of “credits” for each environmentally-friendly and energy-efficient characteristic incorporated into a building. GGHC includes metrics for both construction and operations, which allows it to be used for existing facilities as well as new construction. Since GGHC is a self-certifying system, healthcare entities who wish to use it must vouch for their own compliance with the program.

The LEED system, with its four levels of certification (Certified, Silver, Gold, and Platinum), is the most well-established green building standard. It certifies projects under the following certification regimes: new construction (LEED New Construction (“LEED NC”)), substantial renovations (LEED NC), minor renovations (LEED Operations & Maintenance (“LEED O&M”)), facility operations (LEED O&M) and leased space (LEED Commercial Interiors (“LEED CI”)). It is also a third-party certification system, so in contrast to GGHC, it is a more rigorous and meaningful enforcement of green building standards. Some healthcare facilities have elected to invest the extra time, money, and effort required for LEED certification.

The Dell Children’s Medical Center (“Dell Children’s”) in Austin, Texas is one of the most dynamic green building healthcare facilities, as evidenced by recently becoming the world’s first LEED-Platinum certified hospital. Dell Children’s has succeeded in accomplishing some amazing results, including, an onsite natural gas power plant providing 100% of the facility’s electricity; recycling 75% of the waste produced during construction; and ensuring that no location in the building is ever more than 32 feet away from a source of sunlight. Various challenges, such as the hospital’s 24/7 operation schedule, required Dell Children’s to overcompensate in other areas in order to reach Platinum certification. The project’s architect admits that the challenges in obtaining certification under a system not designed for healthcare were “enormous,” but apparently worth the cost for the hospital, which predicts that its energy efficiency investments will pay for themselves within six years.

There are currently less than 40 other LEED-certified healthcare facilities of any type across the country (including, for example, the Boulder Community Hospital in Boulder, Colorado, which is the first ever hospital to be LEED certified, and the Jewish Hospital Medical Center South in the Louisville, Kentucky area). However, approximately 350 hospitals that are currently under construction are LEED-registered, indicating a desire to achieve LEED certification upon completion.

Luckily, for those looking for something more rigorous than the GGHC, but more tailored to healthcare than general LEED certification, the USGBC will soon issue a new LEED for Healthcare rating system. The new certification system will incorporate feedback from pilot projects that used GGHC and will be open to a public comment period before being officially implemented.

Choices and Challenges

Those who are beginning the planning process for green healthcare facilities have three possible paths to choose from at this point: they can either wait until LEED for Healthcare is rolled out, use traditional LEED, or use GGHC. All of these choices have positives and negatives: LEED for Healthcare will likely become the new industry standard, but its exact requirements are not yet clear, so healthcare entities might have to delay their projects or could be taking a risk by committing themselves to a program under which they may not be able to obtain certification; traditional LEED is rigorous and well-recognized, but may impose unnecessary costs and difficulties when applied to the healthcare sector; and GGHC has clear metrics that are already tailored to healthcare construction and operations, but does not carry the same weight as LEED since it is a voluntary, self-certifying system.

There are certain actions, no matter what green building rating system decision makers elect to utilize, that healthcare facility decision makers must take in order to limit unforeseen cost, risk and liability. It is important to make green building goals clear and specific early in the planning process. A team of experienced professionals (architects, construction managers, contractors, lawyers and others) with quantifiable experience on past GGHC or LEED certified projects is also highly recommended. These experts will be able to properly guide property owners with the unique issues that arise in connection with green building and thus help mitigate further risk.

There are multiple legal risks in connection with green building that should be considered. A small sample of these issues are as follows:

• Whether there any potential governmental incentives or other awards that might help supplement the costs of green construction.
• The proper detailing of liability for failure to achieve certain green standards.
• The evolution of labor laws regarding the classification of the construction tasks for new green building work, such as green roofs.
• Lease drafting that requires all tenants at the property satisfy certain green building operational requirements.
• Avoidance of greenwashing, or misleading the environmental benefits of the facility or services being provided.

There are innumerable other legal issues associated with green building and leasing. As this is an emerging area, it is important to work with professionals in order to avoid unnecessary liabilities when “going green.”

Overview

Green building design, construction and operation practices are likely to continue at an exponential growth pattern in the healthcare industry in the years ahead. It is critical for facility owners, managers and stakeholders to fully understand the unique issues that arise for green building in the healthcare arena and work with a team of professionals that can help advise and minimize the risks associated therewith.

Geoff White is a Senior Associate in the Real Estate Group of the Business/Corporate Department at Frost Brown Todd. He is a LEED Green Associate (LEED GA) and a Fellow of the Institute of Green Professionals (FIGP). A sizeable portion of his practice is spent advising clients on the legal issues of green building and sustainable development. He recently co-authored the chapter “Understanding and Mitigating the Legal Risks of Green Building,” in the Aspatore Books Inside The Minds – Negotiating and Structuring Construction Contracts. Mr. White is licensed to practice law in Kentucky and Ohio. Contact him at gwhite@fbtlaw.com or (502) 568-0202.

Anderson Green is an Associate in the Real Estate Group of the Business/Corporate Department at Frost Brown Todd. Mr. Green is licensed to practice law in Ohio. Contact him at agreen@fbtlaw.com or (513) 651-6771.