Nine months into the Public Health Emergency (“PHE”), with COVID-19 cases surging across the country, the Centers for Medicare & Medicaid Services (“CMS”) has announced two new strategies to enhance hospital capacity that focus on nurse staffing.  First, CMS is expanding its Hospitals Without Walls program to add a new ‘Acute Hospital Care at Home’ initiative that allows for more flexible nurse staffing.  Second, CMS is allowing flexibility for nurse staffing for Ambulatory Surgery Centers (“ASCs”) that are enrolled as hospitals during the PHE.  

Since March 2020, with the declaration of the PHE, CMS has waived a number of Medicare Hospital Conditions of Participation (“CoPs”) and adopted additional regulatory flexibilities to allow hospitals to provide services in non-traditional settings, including ASCs and the patient’s home through the “Hospitals Without Walls” program. The blanket waivers are available to all hospitals who meet the requirements.  Despite the flexibilities available through the Hospitals Without Walls program, the nursing services CoPs remained a material operational impediment.  Specifically, the nursing services CoPs at 42 C.F.R. § 482.23(b) and (b)(1) required immediate availability of a registered nurse, and 24-hour on duty nursing services physically in the home or ASC setting - just as in the four walls of the hospital. Obviously, satisfying these CoP requirements was challenging, particularly in areas with nursing shortages. The Acute Hospital Care at Home program alleviates this operational difficulty by providing an opportunity for hospitals to apply for and obtain a waiver of this particular requirement.

The Acute Hospital Care at Home program is not the same as home health, and is intended for patients who require acute inpatient admission to a hospital and who require at least daily rounding by a physician and monitoring. Under the Acute Hospital Care at Home program, hospitals that apply for and are granted a waiver will institute screening protocols to identify inpatient or emergency department patients with a qualifying condition, such as asthma, congestive heart failure, pneumonia, or COPD, who wish to participate in the program. Those patients will be evaluated in-person and then admitted to their homes, where they will receive at least two in-person visits per day from a RN or paramedic and a once-daily evaluation by a RN, either remotely or in-person. The hospital must submit monitoring data on a monthly basis.  This new program is similar to the existing Medicare Health Care Innovation Program for Acute Hospital Care at Home that was initially awarded to six hospitals, outside the PHE.  Hospitals wishing to participate in the Acute Hospital Care at Home initiative can review FAQs here and apply here.

Applicants should carefully consider how they will implement the new program, including how they will ensure continued compliance with the other Hospital CoPs that have not been waived.

CMS simultaneously announced flexibility for ASCs enrolled as hospitals during the PHE so that these facilities are only required to provide 24-hour on-site nursing services when there is a patient in the facility.

ASCs that are enrolled as hospitals can view more information on the ASC flexibilities here.