New Guidance Expected for Shared Space

CORRECTION: Because of a publishing error, this article, written by healthcare attorney David Glaser, was published on May 30 by RACmonitor after the new guidance was actually published.

That guidance can be found here,

In a statement to RACmonitor, Glaser offered comments about the new guidance from the Centers for Medicare & Medicaid Services (CMS).

“While there were some positives in the new guidance, including clarity that shared waiting rooms are acceptable, on the whole it is rather disappointing,” Glaser wrote in an email to RACmonitor. “This new guidance, while better than the current position taken by regional offices, is inconsistent with both the wording and spirit of the regulation.”

According to Glaser, there is a legitimate policy concern that underlies the guidance: preventing situations where patients are surprised by hospital co-payments when they expected to be treated like clinic patients. The provider-based rules require that the facility make the patient aware that they are in hospital space, a requirement that Glaser said is fair.

“The new guidance, however, focuses on things like the paths of various corridors, suggesting that if a hallway goes through clinical space the hallway may not be used by patients from a different provider,” Glaser said. “That principle is difficult to apply and completely unrelated to the policy of making sure patients know they’ll receive a hospital bill.”

Glaser’s point is that whether a particular corridor goes through or around a unit seems like an arbitrary way to decide whether or not entities can share space. The difference, Glaser said, is between a hallway that goes “through” a lab compared to one that goes “past” a lab may be Talmudic, but it does not seem like a way to determine whether medical care should be covered.

“The good news is that CMS is allowing public comment on this policy,” Glaser said. “Comments can be made until July 2. I know Fredrikson & Byron will be putting together comments on behalf of its clients. I encourage listeners to do the same. We will be suggesting that the emphasis return to patient awareness, not issues like whether medical records are shared.”


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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