CMS recently issued long-awaited draft guidance on hospital co-location with other hospitals or healthcare facilities, providing some potential insight on the otherwise ambiguous prohibition on "shared space." This prohibition loosely stems from the requirement that a Medicare participating hospital is evaluated "as a whole" for compliance with the Conditions of Participation ("CoP"), among other state and federal regulatory requirements. Previously, it was believed that the provider based regulations at 42 C.F.R. § 413.65 governed this prohibition (this section was cited in a 2016 memorandum from the Pennsylvania Department of Health), but the CMS guidance did not cite this particular section.
In recent years, CMS has started to crack down on provider based hospital departments that physically share space with non licensed or separately owned hospital facilities, generally prohibiting shared staff, waiting rooms, check-in desks, patient bathrooms, and other similar items and costs. Although the prohibition was not absolute (CMS had permitted certain things to be shared, such as staff lounges and shared main lobbies), hospitals that sought to attain and maintain compliance struggled with the lack of clear guidance from CMS, and had to rely largely on word of mouth, occasional information distributed by State Survey Agencies, or even citations received if the hospital was caught with prohibited shared space or staffing. This was especially troubling in light of the fact that remediation potentially involved large scale, expensive construction and a hiring and staffing model revamp, among other mandatory modifications.
While the draft guidance promises to be less prescriptive, many of the stringent prohibitions understood previously remain. Additionally, much of the information merely reiterates what was previously shared by State Survey Agencies and does not provide much additional clarity or information. Particularly as health systems continue to expand and hospitals partner with other types of entities to offer more unique services, these prohibitions can be inefficient and result in lower patient satisfaction. Nevertheless, having concrete guidance directly from CMS is better than nothing. Several high level takeaways include:
- Traversing between separate entities using a path through "clinical space" is not permissible, with clinical space defined as any non-public space in which patient care occurs
- Co-located entities may traverse public paths of travel, with an example of a main hospital corridor with distinct entrances to departments
- While staff members may not casually "float" back and forth between two entities, a staff member may be contracted to another entity for pre-designated shifts, providing the staff member is 100% dedicated to the contracting entity
- Medical staff members may float between entities as long as they are privileged and credentialed at each hospital
- Public areas, such as main lobbies, waiting rooms, and reception areas, may be shared, but check-in areas must be separate
- Floor plans must clearly identify which health care entities use which space
Hospitals and other stakeholders should submit comments or clarification requests before the window closes on July 2.
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