Is hospital home care here to stay? | Blogs | Health law today

It has been nearly two years since the Centers for Medicare & Medicaid Services (CMS) first issued blanket waivers to certain hospital conditions of participation allowing health systems and hospitals to provide hospital services in locations above beyond their existing walls during the COVID-19 Public Health Emergency (PHE). In late 2020, CMS also began accepting requests for waivers of 42 CFR §§ 482.23(b), (b)(1), which requires nursing services to be provided on the premises of a hospital 24 hours a day, 7 days a week. , and the immediate availability of a registered nurse for the care of any patient – ​​thus enabling hospitals to implement acute hospital care programs at home during PHE.

On March 10, 2022, Senators Tom Carper (D-Del.) and Tim Scott (RS.C.) introduced bipartisan legislation, “Hospital Inpatient Services Modernization Act” (S.3792) (the Act) that would extend CMS . Flexibilities to waive acute hospital care at home for an additional two years after PHE expires. Representatives Earl Blumenauer (D-Ore.) and Brad Wenstrup, DPM (R-Ohio) introduced the companion legislation to the House (HR 7053).

The law, as introduced, would allow hospitals in CMS’s Inpatient Acute Home Care program to continue to provide inpatient services to patients’ homes by:

(1) Enable the 24/7 nursing services participation requirement to be satisfied by providing virtual access to nurses, advanced practice providers, or physicians, 24 hours a day; and

(2) Assume that life safety code requirements are met for homes or temporary residences deemed safe and appropriate by the hospital acute care home program.

If the law is passed in a form similar to that introduced, within 12 months of its enactment (not before the midpoint of the extension itself), the Secretary of Health and Human Services (Secretary) is required to publish regulations setting out health and safety requirements for acute hospital home care programs.

In addition, the law requires the Secretary, within 90 days of the bill’s proclamation, to submit to Congress a report evaluating the waiver along with all associated recommendations for legislation and administrative actions. Evaluation should include review of waivers for Hospital Acute Home Care and Hospital Without Walls by reviewing relevant data collected by CMS regarding these waivers and the quality of care provided, patient outcomes, beneficiary access , health disparities, patient safety, cost and use.

Although the law has received broad support from the provider community, it may not go far enough to help Medicare beneficiaries receive more accessible treatment at home. First, there may be additional legal hurdles that influence the ability of hospitals to use acute hospital care at home programs after PHE ends, as states often have regulations similar to the conditions for participation of CMS which may also need to be lifted so as not to conflict with the state. hospital licensing laws. Second, this law only extends the availability of hospitalized hospital services, which is important because even with the recently enacted Consolidated Appropriations Act of 2022, which would extend the availability to provide and bill Medicare for telehealth services for patients at home for 151 days after PHE, it could be barriers for patients continuing to receive care at home once they no longer warrant hospitalization. Third, some critics may note that a two-year waiver is not long enough to understand or see the effectiveness of this program, rather that a five- or seven-year waiver would allow more time for evaluation and more time to create and implement regulations.

Foley is here to help you deal with the short and long term impacts as a result of regulatory changes. We have the resources to help you navigate these important legal considerations related to business operations and industry-specific issues. Please contact the authors, your Foley relationship partner or our Health Care Practice Group with all questions.

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