United States: Co-Location Of Hospital Space: CMS Issues Draft Guidance For Public Comment

On May 3, 2019, the Centers for Medicare & Medicaid Services (CMS) issued long-awaited draft interpretive guidance for hospitals relating to the "co-location" of services provided by separate healthcare entities. Co-location occurs where two hospitals or a hospital and another healthcare entity are located on the same campus or in the same building and share space, staff, or services.  The draft guidance is intended to introduce some flexibility for hospitals that share space, or co-locate, with other hospitals or healthcare entities.  

The big picture of the draft guidance is that clinical space must always be dedicated to the hospital, and that patients of a co-located entity cannot pass through the hospital's clinical space (or vice versa), reflecting CMS' concerns with infection control and patient privacy and security.  But if space can be adequately described as a "public area," "public space," or "public path of travel," then the concurrent use of that space will not violate the CMS co-location draft guidance.  Sharing of staff and contracted services is also permissible, so long as there is no "floating," such that staff is exclusively providing services for one co-located entity at any one time, and each of the co-located entities have sufficient oversight and maintain independent responsibility for compliance with Medicare Conditions of Participation (CoPs).

The draft guidance was released as a memorandum to State Survey Agency Directors from the CMS Director of the Quality, Safety & Oversight Group. In an unusual move for these sorts of releases, CMS is seeking comments.  Comments will be accepted up to July 2, 2019. 


For a provider-based department, remote location or satellite facility of a hospital to qualify for provider-based status, the facility must be held out to the public and payers as part of the hospital, and adequately identified to assure that patients know they are entering a part of the hospital. (42 C.F.R. § 413.65(b)((3)(iv)) Although this standard does not expressly address co-location, since at least 2011, CMS has taken a restrictive view in regional office guidance and public presentations (e.g., presentation of David Eddinger, CMS Technical Director, Hospital Survey & Certification, for American Health Lawyers Association (AHLA) webinar on March 25, 2015), enforced through the survey and accreditation process,, to require that co-located facilities must demonstrate separateness of space – including both clinical and non-clinical (e.g., registration and waiting areas) space, with limited exceptions.  The generally recognized CMS' view was that patients could enter into a common atrium, and use a common elevator, but then they would need to turn right to go to one provider and left to go to another – they could not traverse one provider's space to access another.  Nor could the providers take advantage of shared waiting rooms or common non-clinical areas.  

Proposed Guidance

The draft guidance, if finalized, would introduce a level of flexibility to permit co-location, with limitations, overturning the more restrictive prior standards applied by CMS. We anticipate that the flexibility will be welcomed by many in the hospital community, as it would not only introduce greater clarity and uniformity in the survey process, but also permit co-located providers to effectively share certain "public" spaces and paths of travel. Clinical space designated for patient care, or separate space necessary for patient confidentiality or security, would need to be kept distinct to each provider/entity.  Providers would be individually responsible for compliance with CoPs in all areas of the co-located facility, including both the shared "public" space and the segregated clinical space.  State licensure and accreditation standards will also need to be taken into account in structuring any arrangement.

Under the draft guidance, hospitals and other "healthcare entities" would specifically be able to share "public" spaces such as:  

  • Main entrances;
  • Waiting areas;
  • Bathrooms;
  • Staff Lounges;
  • Elevators;
  • Main corridors through non-clinical areas;
  • Lobbies; and
  • Reception areas (with separate "check-in" areas and clear signage).

These types of spaces are now treated as "common areas" and "public spaces and public paths of travel." They may share this space in a co-located environment.  On the other hand, clinical space may still not be shared between the hospital and another co-located healthcare entity.  

A second issue which was addressed in the draft guidance was somewhat unexpected. The draft guidance permits sharing of staff so long as they are clearly dedicated to work for the hospital and some other entity at distinct times.  In other words, the staff would need to be assigned exclusively to the hospital during a given shift.  Staff cannot "float" between two hospitals (or be "on-call" for a hospital and a co-located entity) during that same work shift. There is some ambiguity as to whether the exclusivity requirement would apply for purposes of both clinical and non-clinical staff, which is likely to be clarified in the final guidance. Medical staff (physicians and others as recognized by the hospital), in any event, may be shared or "float" between co-located hospitals if they have appropriate privileges and are credentialed for both facilities. This makes sense as members of the medical staff are not considered part of the hospital's work force. 

Hospitals must also have appropriate policies and procedures in place for addressing emergency care needs 24 hours per day and 7 days per week.  If the hospital contracts for emergency support services, the services need to be provided exclusively and without any overlap with the co-located entity that might impede delivery of care.

The draft guidance further recognizes that hospitals may obtain services under contract or arrangement with the co-located hospital or healthcare entity, including laboratory, food services, pharmacy, maintenance, housekeeping and security services, in compliance with CoPs.  

In surveying a hospital, surveyors would follow interpretive guidance and survey procedures applicable to quality assurance and performance improvement (QAPI) and contracted services. (42 C.F.R. §§ 482.21 and 482.12(e), respectively)

As comments are likely to be coming in from multiple sources, we anticipate further refinement of this draft guidance by CMS.  Foley & Lardner LLP is assembling comments for submission.  In addition, Foley & Lardner LLP is participating in a webinar sponsored by AHLA's Regulatory, Accreditation and Payment Practice Group on June 5, 2019.  That webinar will include some of the authors and interpreters of the guidance at CMS, including David Wright, CMS' Acting Deputy Center Director, Center for Clinical Standards and Quality, Karen Tritz, Director of CMS' Division of Acute Care Services, and Danielle Miller, CMS' subject matter expert on co-location.  We expect additional insights to be developed during and after that webinar.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions