Texas Legislature Provides Path to Continuing the In-Home Hospital Program | Katten Muchin Rosenman LLP

On May 16, 2023, it passed the Texas legislature and sent into Texas Governor Act 1890. If signed by the governor, Texas would provide a path for hospitals to offer hospital services at home (1) as long as the Centers for Medicare and Medicaid Services (CMS) continue ) to be permitted either under the present waiver or under a later program; and (ii) with the approval of the Executive Commissioner of the Texas Health and Human Services Commission (HHSC).

CMS created the Home Acute Care Waiver Program, commonly referred to as the Hospital at Home Program, in response to the COVID-19 pandemic. It provided a way for hospitals to provide care to patients in patients’ homes, which in turn allowed hospitals to provide free beds to other patients. This program allowed hospitals to request exemptions from CMS for 42 CFR ยง482.23(b) and (b)(1) Hospital Participation Conditions (CoPs), among others. Under the program, CoPs require hospitals to provide on-premises nursing services 24 hours a day, 7 days a week and the immediate availability of a registered nurse to care for any patient, but those services have been suspended under the waiver.

These waivers were made in accordance with the public health emergency declared by the federal government. While the declaration of the COVID-19 public health emergency expired on May 11, 2023, Congress passed a bill in late December 2022 to extend exemptions for certain programs through December 31, 2024. This extension included the Hospital at Home program. While this was good news for those who were currently providing hospital services at home, there was no permanent expansion of the hospital program at home.

CMS waivers are only half the story because they don’t address state laws and requirements. There have been questions in many states about whether they can extend exemptions from their licensing laws without declaring an emergency or state legislation.

In Texas, HHSC recently adopted an emergency rule effective January 29, 2023, to last 120 days to allow hospitalizations to continue under the hospital-at-home program. However, the 120-day period was set to expire on May 29, 2023. The emergency law could be extended for an additional 60 days. If the governor signs the new legislation, HHSC will no longer need to rely on emergency declarations in the future.

House Bill 1890 will continue to allow hospitals to apply for Hospital at Home or any subsequent program offered by CMS. It requires hospitals to apply for state approval, a process that requires submitting an application to HHSC and paying a fee. The HHSC must also set minimum standards that must be at least as stringent as the current CMS program. The legislation also gave HHSC a way to waive any requirements of the subchapter by order if the waiver or modification would facilitate the hospital’s establishment or operation of the Hospital at Home program and would be in the best interest of the individuals served by the program. This bill passed both houses of the legislature and went to the Governor for signature. Since the bill passed both houses by a two-thirds majority, it would be effective immediately.

It is possible for HHSC to choose to extend the emergency rule for an additional 60 days to give themselves enough time to establish the application process and any additional criteria and/or if the Governor does not sign House Rule 1180.

Texas individuals and entities participating in the Hospital at Home program should keep a close eye on the status of billing, pending regulations, the HHSC application process, and for extensions of the current emergency rule allowing Hospital at Home in the state. Hospital at Home program participants in all states should consider monitoring (1) whether their state waivers are active, at least through December 31, 2024; and (2) to ongoing changes by the federal and state governments.

You may also like...

Leave a Reply

Your email address will not be published. Required fields are marked *