The promised CMS guidance for hospitals that share space, staffing, and contract services finally arrived on Friday, May 3rd. CMS published a draft of the guidance as a Quality, Safety & Oversight Group Memorandum. The memorandum includes clarifications on certain prohibitions and new survey procedures that will apply to co-located entities. Although much of the guidance appears to adopt long-standing CMS enforcement policies (e.g., generally no sharing of clinical space), the guidance also leaves many questions unanswered. 

Fortunately, CMS issued this guidance in draft form with a 60-day comment period. Advis strongly encourages health entities to submit comments. Recommended is discussing and questioning how the guidance would impact different types of entities in various scenarios, trying to force CMS’ hand to address the outstanding ambiguities. Comments in response to the guidance are due to CMS on July 2, 2019. Advis is available to assist with drafting comments making sure that the specific aspects of the guidance which directly affect your entity are addressed. 

CMS breaks the guidance into three sections. Advis provides below a high-level summary of each:

Guidance regarding Shared Space and Co-Location:

CMS adopted its long-standing policy allowing providers to share certain public spaces while limiting the sharing of any clinical space. CMS states that it limits the sharing of clinical spaces “due to infection control, patient management, confidentiality, and other quality and safety concerns.”

CMS defines acceptable shared space as “public spaces and public paths of travel that are utilized by both the hospital and the co-located healthcare entity,” while clinical space is defined as “any non-public space in which patient care occurs.” CMS provides examples of acceptable shared public space, including: 

 • Public lobbies;

• Waiting rooms;

• Reception areas (with separate “check-in” areas and clear signage); 

• Public restrooms; 

• Staff lounges;

• Elevators;

• Main corridors through non-clinical areas; and

• Main entrances to a building.

The clarification with respect to shared waiting and reception areas is especially welcomed, as CMS regional offices have historically applied here various levels of scrutiny. However, CMS also leaves many wondering how this policy will affect them. 

For example, CMS clarifies that patients may not traverse hospital inpatient nursing units and clinical hospital departments – which it defines as “outpatient medical clinics, laboratories, pharmacies, imaging sites, operating rooms, post anesthesia care units, emergency departments, etc.” – to reach another co-located entity. However, CMS does not expand on what does or does not qualify as “patient care” in sufficient detail to classify these spaces as clinical. Can a hospital and physician group entity share a hallway that runs through the center of a medical office building if this hallway may only be accessed by registered patients and staff? Must all interior access points between co-located clinical spaces be walled off or kept behind locked doors? What constitutes a separate “check in” area? Advis encourages hospitals and other providers to submit comments to CMS to seek this level of clarity. 

Guidance regarding Contracted Services and Staffing Contracts:

CMS clarified that although hospitals will continue to be responsible for their own services and compliance with CoPs, certain services may continue to be provided under contract with another co-located or other healthcare entity. Specifically, when staff (not including medical staff members) are obtained under contract from another entity, they must be assigned to work solely for one entity at a time; they may not “float” between the two entities. In addition, all staff must receive appropriate training and education for each provider when staff is shared between two entities. With respect to nurses, CMS also states than an RN may not work “on more than one unit, building, or floor in a building, or with more than one provider (e.g., distinct part SNF, RHC, excluded unit, etc.) at the same time.” Again, Advis encourages providers to seek clarity from CMS with respect to any specific scenarios that would be affected by this new definition. 

 Guidance regarding Emergency Services:

CMS states that hospitals without emergency departments that contract for emergency services are now “considered to provide emergency services and must meet the requirements of EMTALA.” CMS states that these hospitals “may not arrange to have another hospital respond to its emergencies in order to appraise the patient and provide initial emergency treatment.” Again, in creating this new standard CMS leaves many wondering. Does this policy apply to all hospital types including LTACHs? How do two co-located hospitals determine when either or both must respond to a patient emergency? If they do so simultaneously, can one hospital be held responsible for the conduct of the other? Advis again encourages providers to seek throughout the comment process precisely this level of detail from CMS.


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