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Is Hospital Care at Home Here to Stay?

It has been almost two years since the Centers for Medicare & Medicaid Services (CMS) first issued blanket waivers of certain hospital conditions of participation allowing healthcare systems and hospitals to provide hospital services in locations beyond their existing walls during the COVID-19 Public Health Emergency (PHE). At the end of 2020, CMS also began accepting waiver requests to waive 42 C.F.R §§ 482.23(b), (b)(1), which requires nursing services to be provided on a hospital’s premises 24 hours a day, 7 days a week, and the immediate availability of a registered nurse for care of any patient – thereby, permitting hospitals to implement Acute Hospital Care at Home programs during the PHE.

On March 10, 2022, Senators Tom Carper (D-Del.) and Tim Scott (R-S.C.) introduced the bipartisan legislation, “Hospital Inpatient Services Modernization Act” (S.3792) (the Act) that would extend CMS’ Acute Hospital Care at Home waiver flexibilities for an additional two years after the PHE expires.  Representatives Earl Blumenauer (D-Ore.) and Brad Wenstrup, DPM (R-Ohio) introduced the companion legislation in the House (H.R. 7053).

The Act, as introduced, would allow hospitals within CMS’ Acute Hospital Care at Home program to continue providing inpatient services in patients’ homes by:

(1) Allowing the 24/7 nursing services condition of participation to be satisfied by providing virtual access to nurses, advanced practice providers, or physicians, 24-hours per day; and

(2) Deeming life safety code requirements satisfied for homes or temporary residences determined to be safe and appropriate by the Acute Hospital Care at Home Program.

If the Act passes in similar form as introduced, within 12 months of being signed into law (not until the midway point of the extension itself), the Secretary of Health and Human Services (Secretary) is required to issue regulations establishing health and safety requirements for Acute Hospital Care at Home programs.

Additionally, the Act requires the Secretary, within 90 days of enactment of the bill, to submit a waiver evaluation report along with any associated recommendations for legislation and administrative actions to Congress. The evaluation must include reviewing Acute Hospital Care at Home and Hospital Without Walls waivers by looking at the relevant data collected by CMS related to those waivers and the quality of care provided, patient outcomes, beneficiary access, health disparities, patient safety, cost, and utilization. 

While the Act has received broad support from the provider community, it may not go far enough to help Medicare beneficiaries receive more accessible treatment in their homes. First, there may be additional state law barriers that influence whether hospitals can utilize the Acute Hospital Care at Home programs after the PHE ends since states often have regulations similar to CMS’ conditions of participation that may similarly need to be waived to not conflict with state hospital licensure laws. Second, this Act only extends the availability of inpatient hospital services, which is important since even with the recently enacted Consolidated Appropriations Act, 2022, which would extend the availability to provide and bill Medicare for telehealth services for patients in the home for 151 days post PHE, there could be barriers for patients continuing to receive care in the home once they no longer justify inpatient admission. Third, some critics may note that a two-year waiver is not long enough to understand or see the effectiveness of this Program, rather a five or seven-year waiver would allow for more evaluation time and additional time to create and implement regulations.

© 2023 Foley & Lardner LLPNational Law Review, Volume XII, Number 80

About this Author

Kara Sweet, Health Care Lawyer, Foley & Lardner law Firm, Denver

Kara Sweet is a health care lawyer with Foley & Lardner LLP and member of the firm’s Government Enforcement, Defense, and Investigation Practice and Telemedicine & Digital Health Industry Team.

Kara works with hospitals and health systems, physician practice groups, pharmacies, durable medical equipment companies, laboratories, and emerging technology companies across the country. Her work focuses on federal and state health care regulatory compliance, conducting internal investigations, and defending government investigations and...

Lawrence W. Vernaglia, Health Care Attorney, Foley Lardner Law Firm

Lawrence Vernaglia is a partner and health care lawyer with Foley & Lardner LLP and serves as chair of the firm’s Health Care Industry Team – named “Health Law Firm of the Year” for three of the past four years on the U.S. News - Best Lawyers® "Best Law Firms" list. Mr. Vernaglia represents hospitals, health systems and academic medical centers and a variety of other health care providers. Mr. Vernaglia's practice involves regulatory and transactional matters, including Medicare/Medicaid reimbursement compliance advice and appeals; mergers, acquisitions and...

Rachel Goodman Health Care Attorney Foley Lardner Tampa
Senior Counsel

Rachel B. Goodman is a senior counsel with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group and national Telemedicine & Digital Health Industry Team. Hardworking, creative and dedicated to her clients, Rachel’s practice focuses on representing a wide array of clients nationally with transactional and related regulatory issues in the health care industry including health care providers, physician groups, hospitals, health systems, pharmacies, laboratories, home health agencies, skilled nursing facilities, assisted living facilities, rehabilitation agencies...