[co-author: Erin Howard]*
On November 12, 2021, the Centers for Medicare & Medicaid Services (CMS) released orientation finalized (“Guidance”) clarifying that hospitals may share spaces, services, or personnel with another hospital or healthcare provider as long as they demonstrate independent compliance with Medicare’s Terms of Participation (CoP). This Guide, which completes the previous orientation project published May 3, 2019, outlines how CMS and state agency investigators will assess a hospital’s space sharing or contract staffing arrangements when evaluating the hospital’s compliance with Medicare CoPs . The Guide entered into force as soon as it was published on November 12, 2021.
As relayed by CMS, hospitals have increasingly collocated with other hospitals or other healthcare entities as they seek efficiencies and develop different care delivery systems. Collocation occurs when two Medicare-certified hospitals or a Medicare-certified hospital and another healthcare entity are located on the same campus or in the same building and share space, staff, or services. CMS provides the following common examples of collocation:
- A hospital located entirely on the campus of another hospital or in the same building as another hospital;
- A portion of a hospital’s inpatient services (eg, in a remote or satellite location) is in another hospital’s building or on another hospital’s campus; and
- A hospital’s outpatient department is located on the same campus or in the same building as another hospital or a separate Medicare-certified provider/provider, such as an Ambulatory Surgical Center (ASC), rural health clinic (RHC), a federally licensed health center. (FQHC), an imaging center, etc.
All co-located hospitals are required to demonstrate independent compliance with the hospital’s CoPs. The CMS guidelines clarify how hospitals can organize shared spaces, departments, staff and emergency services to meet specific regulatory requirements. Ultimately, when hospitals choose to share space, they must consider the compliance risk associated with any shared space or shared service agreement. Appendix A of the CMS State Operations Manual will be revised to include these colocation guidelines as a component of the hospital investigation process. Hospitals should keep these updated guidelines in mind with respect to shared space arrangements, as accreditation investigators will be required to use the guidelines in the future to assess a hospital’s compliance with the CoPs.
A Medicare participating hospital is assessed as a whole for CoP compliance and is required at all times to meet the definition of a Medicare hospital. Section 1861(e) of the Social Security Act and to have operational spaces compatible with the CoPs at 42 CFR Part 482. CMS specifically calls for the following areas to be considered when sharing space: (i) patient rights (including privacy and confidentiality of patient records), (ii) infection prevention and control, (iii) the governing body; and (iv) the physical environment (including patients receiving care in a safe environment).
The hospital should determine whether hospital spaces that are used by another co-located provider could compromise its compliance with these requirements. For example, a complaint may be raised against a co-located hospital for a deficiency related to a shared space that is cited during an investigation of the hospital.
(b) Contractual Services
Co-located hospitals are each responsible for providing their services in accordance with the hospital’s CoPs and under the supervision of the respective hospital’s governing body (see 42 CFR §482.12(e))) as if provided directly by the hospital. Services that may be provided under contract or arrangement in a co-located hospital include laboratory, dietary, pharmacy, maintenance, housekeeping, security, preparation and food delivery, and utilities such as fire detection and suppression, medical gases, vacuuming, compressed air, and alarm systems, such as oxygen alarms.
A hospital is responsible for meeting the staffing needs of CoPs and all services it provides, including staff provided under an arrangement or contract with a co-located hospital. When the hospital staff is obtained under agreement from another entity, the hospital staff must meet the needs of the patients for whom they provide care and meet the legal and regulatory requirements of the activity. All persons providing services to an inpatient under a contract or arrangement must receive appropriate education and training on all relevant hospital policies and procedures, identical to those that would be provided to employees of the hospital so that the quality of care and services provided is the same.
When using staffing contracts, under the contractual services standard to 42 CFR §482.12(e), the governing body is responsible for ensuring: the adequacy of the workforce; adequate monitoring and periodic evaluation of contracted personnel; appropriate training and education of contract staff; that contract staff know and adhere to the quality and performance improvement standards of the hospital concerned; and that contract staff are responsible for the requirements of clinical practice.
With respect to medical personnel, each co-located hospital would be responsible for meeting the applicable medical personnel requirements at 42 CFR §482.22. With regard to nursing staff, each co-located hospital would be responsible for providing an organized nursing service in accordance with 42 CFR §482.23.
(d) Emergency Services
While hospitals are required to provide patient care in emergencies, hospitals are not required to have an emergency department (ED). As part of the CoP at 45 CFR §482.12(f)(2), hospitals that do not have an emergency department and are not identified as providing emergency services must have appropriate policies and procedures in place to meet the emergency care needs of individuals at all times. moment. Hospitals should have policies and procedures to deal with potential emergency scenarios typical of the patient population they routinely serve and ensure staffing that would allow them to provide safe and adequate initial treatment in the event of an emergency. ’emergency. Policies and procedures should include: (1) identifying when a patient is in distress, (2) how to initiate emergency response, (3) how to initiate treatment, and (4) recognizing when the patient should be transferred to a another facility to receive appropriate treatment.
Assessment and initial treatment performed in a hospital (for example, a rehabilitation facility) may require appropriate transfer of the patient to another provider, such as a collocated hospital (for example, an acute care hospital with a service emergency), for continuing care. If the co-located hospital under investigation is identified as providing emergency services or has an emergency department, the hospital would be subject to the requirements for emergency services (see 45 CFR §482.55) and must meet EMTALA requirements. To see Section 1867 of the Social Security Act; 45 CFR §489.20-21; and 45 CFR §489.22-24.
See page 6 of Advice read related survey procedures.
Comparison with the draft guidance
After the comment period, several changes were made to the previous version orientation project which was published on May 3, 2019. Notably, in this final version of the Guide, CMS has removed certain personnel requirements requiring contract personnel to be immediately available to provide contracted services and prohibiting personnel from “floating” between facilities or perform the same tasks. operate simultaneously in collocated facilities. Similarly, CMS has removed from this final version the requirement that when contracting with another hospital or entity for the assessment and initial treatment of patients in an emergency, contracted personnel must not concurrently working/on duty in another hospital or healthcare entity. These omissions provide flexibility and imply that certain arrangements may be permitted as long as patient needs are met and all legal and regulatory requirements are met. The final guidance also clarifies procedures related to identifying gaps between collocated facilities.
*This article was co-authored by Erin Howard, legal intern at Robinson+Cole. Erin is not yet admitted to practice law.