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CMS Announces New Flexibility for Nurse Staffing of Acute Hospital Care at Home and Ambulatory Surgery Centers Enrolled as Hospitals

Nine months into the Public Health Emergency (“PHE”), with COVID-19 cases surging across the country, the Centers for Medicare & Medicaid Services (“CMS”) has announced two new strategies to enhance hospital capacity that focus on nurse staffing.  First, CMS is expanding its Hospitals Without Walls program to add a new ‘Acute Hospital Care at Home’ initiative that allows for more flexible nurse staffing.  Second, CMS is allowing flexibility for nurse staffing for Ambulatory Surgery Centers (“ASCs”) that are enrolled as hospitals during the PHE.  

Since March 2020, with the declaration of the PHE, CMS has waived a number of Medicare Hospital Conditions of Participation (“CoPs”) and adopted additional regulatory flexibilities to allow hospitals to provide services in non-traditional settings, including ASCs and the patient’s home through the “Hospitals Without Walls” program. The blanket waivers are available to all hospitals who meet the requirements.  Despite the flexibilities available through the Hospitals Without Walls program, the nursing services CoPs remained a material operational impediment.  Specifically, the nursing services CoPs at 42 C.F.R. § 482.23(b) and (b)(1) required immediate availability of a registered nurse, and 24-hour on duty nursing services physically in the home or ASC setting - just as in the four walls of the hospital. Obviously, satisfying these CoP requirements was challenging, particularly in areas with nursing shortages. The Acute Hospital Care at Home program alleviates this operational difficulty by providing an opportunity for hospitals to apply for and obtain a waiver of this particular requirement.

The Acute Hospital Care at Home program is not the same as home health, and is intended for patients who require acute inpatient admission to a hospital and who require at least daily rounding by a physician and monitoring. Under the Acute Hospital Care at Home program, hospitals that apply for and are granted a waiver will institute screening protocols to identify inpatient or emergency department patients with a qualifying condition, such as asthma, congestive heart failure, pneumonia, or COPD, who wish to participate in the program. Those patients will be evaluated in-person and then admitted to their homes, where they will receive at least two in-person visits per day from a RN or paramedic and a once-daily evaluation by a RN, either remotely or in-person. The hospital must submit monitoring data on a monthly basis.  This new program is similar to the existing Medicare Health Care Innovation Program for Acute Hospital Care at Home that was initially awarded to six hospitals, outside the PHE.  Hospitals wishing to participate in the Acute Hospital Care at Home initiative can review FAQs here and apply here.

Applicants should carefully consider how they will implement the new program, including how they will ensure continued compliance with the other Hospital CoPs that have not been waived.

CMS simultaneously announced flexibility for ASCs enrolled as hospitals during the PHE so that these facilities are only required to provide 24-hour on-site nursing services when there is a patient in the facility.

ASCs that are enrolled as hospitals can view more information on the ASC flexibilities here. 

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 336



About this Author

Ross E. Sallade, Polsinelli PC, Medicare Enrollment Lawyer, Diligence Reports Attorney

Ross Sallade provides value to clients by tackling the complex legal regulatory, operational, reimbursement and enrollment matters that others might be reluctant to handle. Ross does so by drawing upon specialized knowledge for each matter which enables him to quickly evaluate urgent issues and provide practical recommendations. He also leverages a unique skill set that enables him to identify and work with the right federal and state regulators to pinpoint the heart of the issue and make recommendations to reach appropriate resolution. His previous experience...

Ann McCullough, Polsinelli Law Firm, Health Care Attorney

Ann McCullough offers a practical perspective to health care clients.  She has a clinical background and over 25 years of health law experience, both in private practice and as in-house counsel.

Ann has a deep understanding of the operational aspects of relating to hospitals and other health care providers, including hospital-physician financial arrangements, physician employment, medical staff, health facility licensure, Medicare enrollment, EMTALA, contracting, and regulatory compliance. 

Neal Shah, Polsinelli Law Firm, Healthcare Law Attorney

Neal Shah applies his experience in government, private practice, and health care delivery to help identify practical legal solutions to complex regulatory and transactional problems, including:

  • Helping clients comply with the Stark Law, Anti-Kickback Statute, and similar federal and state fraud and abuse laws
  • Establishing and operating Accountable Care Organizations and other coordinated care arrangements
  • Completing self-disclosures of over payments of fraud and abuse liability, including through the CMS Voluntary Self-Referral Disclosure Protocol (SRDP) and...
Colleen E. Guinn Health Care Attorney Polsinelli Denver, CO

Colleen Guinn provides comprehensive representation and strategic counsel to a variety of health care providers, including hospitals and health systems, physician and specialty practice groups, individual health care professionals, home health agencies, and long-term care providers. Working closely with Polsinelli’s team of seasoned health care attorneys, Colleen develops legal solutions for clients’ challenges in an ever-changing health care industry.

Prior to joining Polsinelli, Colleen worked as a paralegal focused on representing clients in all stages of the patent litigation...