“Acute Hospital Care at Home”: Omnibus Bill Extends Flexibility Period to December 31, 2024

04 January 2023 Health Care Law Today Blog
Author(s): Alan H. Einhorn Olivia Benjamin (King) Lawrence W. Vernaglia Judith A. Waltz

As part of the $1.7 trillion omnibus spending bill that became law December 29, 2022, the Centers for Medicare & Medicaid Services (CMS) extended, through December 31, 2024, the Acute Hospital Care at Home (H@H) initiative whereby individual hospitals may seek waivers to operate H@H programs. The industry had been anticipating this development since the spring of 2022 because, without an extension, these programs would no longer receive Medicare (and likely Medicaid) reimbursement once the public health emergency (PHE) ends. See here.

H@H programs are designed to offer at-home, acute, hospital-level treatment to certain patients who require acute inpatient care, but whose care can be delivered in the home via telemedicine, combined with home visits by nursing and other appropriate personnel, and supportive services. Hospitals that operate H@H programs provide access to those programs to patients who satisfy hospital-specific criteria that are designed to ensure that the patients can be cared for safely in their homes. 

CMS’ H@H initiative was begun during the PHE, in large part to maximize inpatient bed capacity at hospitals during the PHE, and to reduce COVID-19 exposure for health care workers and patients. H@H care programs have been in existence since long before the PHE, but the need for safe expansion of hospital capacity during the PHE accelerated the proliferation of H@H programs, and their recognition and acceptance by CMS.

Pursuant to CMS’ H@H initiative, individual hospitals have been able to request and receive waivers of Medicare Conditions of Participation that require nursing services to be provided on hospitals’ premises 24 hours a day, seven days a week, and that require the immediate availability of registered nurses for patient care. The H@H waivers are only available for services to patients who enter H@H programs from the hospital’s inpatient service or emergency department. As part of their waiver applications, hospitals are obliged to: identify the criteria they will use to ensure that the services are only provided to individuals requiring inpatient level care; agree to require their physicians to document in the medical record of each H@H patient that the patient satisfies those criteria; and ensure that the standard of care for H@H patients is the same as the standard for treating such patients in the inpatient setting. 

Largely tracking CMS’ H@H initiative, Section 4140 of the omnibus spending bill (H.R. 2617) adds Section 1866G to the Social Security Act and provides that The United States Department of Health and Human Services Secretary may grant H@H waivers and flexibilities for H@H admissions occurring during the period beginning on the first day after the end of the PHE (described in Section 1135(g)(1)(B)) and ending on December 31, 2024. The criteria for granting waivers and flexibilities are set forth in Section 1866G(a)(3).   

Statutory extension of the H@H initiative will enable hospitals to continue to establish and implement H@H programs. The extension also provides for the collection of quality, patient experience and reimbursement data regarding H@H programs and will allow for the further assessment of the effectiveness of such programs. 

The legislation is the first statutory acknowledgement of the H@H care model, suggesting that the program may ultimately continue beyond the extended termination date and, potentially, encourage new investment and innovation in this closely-watched care delivery design. 

Foley is here to help you address the short- and long-term impacts in the wake of regulatory changes. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Health Care Practice Group with any questions.

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