Shannon Britton Hartsfield is a Partner in our Tallahassee office.
As new healthcare delivery models evolve, we may see an increase in hospitals that share space with other hospitals or healthcare entities. On May 3, 2019, Centers for Medicare and Medicaid Services (CMS) issued draft guidance for its state survey agency directors regarding co-located hospitals. These hospitals must independently comply with the Medicare Conditions of Participation. According to the CMS draft, a hospital may share public areas such as waiting rooms, lobbies, staff lounges, elevators and entrances with other entities. However, it may not be able to share certain clinical spaces due to concerns regarding quality and safety, infection control, patient management and confidentiality. If there are shared staff members, there must be "clear lines of authority and accountability."
The goal is "to ensure safety and accountability without being overly prescriptive." CMS notes that, if patients are co-mingled in a nursing unit or other clinical area, it "could pose a risk to the safety of a patient as the entities would have two different infection control plans." CMS is also concerned that sharing space "could jeopardize the patient's right to personal privacy and confidentiality of their medical records." The draft guidance defines clinical space as "any non-public space in which patient care occurs." The draft guidance also includes a number of other requirements including the following:
- Staff, other than privileged medical staff, must work for only one hospital during a shift and may not "float" between two hospitals at the same time or be "on call" at another hospital
- Hospitals may not share the same lab, pharmacy or nursing director simultaneously
- Contracted individuals should receive the same training as would be provided to direct employees
- Medical staff approved by the governing body of a hospital may float, or be shared, between co-located hospitals if they have privileges at each hospital
- If a hospital does not have its own emergency department, it may not arrange to have the co-located hospital respond to its emergencies, but it may allow contracted emergency staff to perform other duties in the hospital and be immediately available for an emergency. During that time, those staff members may not perform duties at the other co-located hospital
- If a hospital without an emergency department contracts for emergency services with another hospital's emergency department, the hospital without its own emergency department must comply with Emergency Medical Treatment and Active Labor Act (EMTALA)
Under the draft guidance, surveyors are required to ask for a floor plan that shows the spaces used by each hospital. Hospital leadership must also provide a list of all the services that are provided through contracts. If both entities use the same space and non-compliance is found in the shared space, both entities would be found to be out of compliance. CMS is soliciting comments from stakeholders regarding the draft. Comments are due by July 2, 2019.
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