Texas Legislature Provides Pathway for Continuation of Hospital-at-Home Program

On May 16, 2023, the Texas legislature passed and sent to the Texas Governor House Bill 1890. If signed by the Governor, Texas would provide a pathway for hospitals to provide Hospital at Home services (i) for as long as the Centers for Medicare and Medicaid Services (CMS) continues to permit it either under the existing waiver or under a successor program; and (ii) with approval of the executive commissioner of the Texas Health and Human Services Commission (HHSC). 

CMS established the acute hospital care at-home waiver program, commonly referred to as the Hospital at Home program, in response to the COVID-19 pandemic. It provided a method for hospitals to provide care for patients at the patient’s homes, which in turn allowed hospitals to free beds for other patients. This program allowed hospitals to seek waivers from CMS for 42 C.F.R. §482.23(b) and (b)(1) of the Hospital Conditions of Participation (CoPs), among others. Under the program, the CoPs require hospitals provide nursing services on-premises 24 hours a day, 7 days a week and the immediate availability of a registered nurse for care of any patient, but these were suspended under the waiver.

These waivers were introduced pursuant to the public health emergency declared by the federal government. While the declaration of the COVID-19 public health emergency ended on May 11, 2023, Congress passed a bill in late December 2022 extending the waivers for certain programs through December 31, 2024. This extension included the Hospital at Home program. While this was good news for those that were currently providing Hospital at Home services, there has been no permanent expansion of the Hospitals at Home program.

The CMS waivers are only one-half of the story, as they do not address state laws and requirements. There have been questions in numerous states about whether they can extend waivers of their own licensure laws without a state emergency declaration or state legislation.    

In Texas, HHSC, most recently, adopted an emergency rule effective on January 29, 2023, to last 120 days to allow for hospitals to continue under the Hospital at Home program. However, the 120 days were set to expire on May 29, 2023. The emergency rule can be extended by an extra 60 days. If the Governor signs the new legislation, HHSC would no longer need to rely on emergency declarations in the future. 

House Bill 1890 will continue to allow hospitals to apply for the Hospital at Home or any successor program that is offered by CMS. It requires hospitals to apply for approval from the state, a process which requires submission of an application to HHSC and payment of a fee. HHSC must also establish minimum standards, which need to be at least as stringent as CMS’s current program. The legislature also granted HHSC with a method to waive any requirements of the subchapter by an order if the waiver or modification would facilitate a hospital’s creation or operation of the Hospital at Home program and is in the best interests of the individuals served by the program. This bill has passed both chambers of the legislature and has gone to the Governor for his signature. As the bill passed both chambers with a two-thirds majority, it will also be immediately effective. 

It is possible that HHSC will choose to extend the emergency rule for the extra 60 days to give themselves time to establish the application process and any additional standards and/or if the Governor has not signed House Bill 1180.

Individuals and entities in Texas participating in the Hospital at Home program should keep close watch on the status of the bill, pending regulations, the HHSC application process, and for extension of the current Emergency Rule permitting the Hospital at Home program in the state. Hospital at Home program participants in all states should consider monitoring (i) whether their state waivers are active, at least through the December 31, 2024 date; and (ii) for ongoing changes by the federal and their state governments.