PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 133. HOSPITAL LICENSING
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §133.54, concerning Hospital at Home Program Application and Operational Requirements.
BACKGROUND AND PURPOSE
The proposal is necessary to implement House Bill (H.B.) 1890, 88th Legislature, Regular Session, 2023. H.B. 1890 amended Texas Health and Safety Code (HSC) Chapter 241 by adding new Subchapter M to allow a licensed hospital to operate a hospital at home program with approval from the Centers for Medicare & Medicaid Services (CMS) and HHSC.
HSC §241.403(a), as added by H.B. 1890, requires HHSC to adopt rules establishing minimum standards for the operation of a hospital at home program by a hospital.
In March of 2020, CMS created the Acute Hospital Care at Home program, originally called the Hospitals Without Walls program, to increase hospital capacity during the COVID-19 pandemic.
In response to state and federal state of disaster declarations relating to COVID-19, HHSC adopted an emergency rule in the Texas Administrative Code, Title 26, Chapter 500, §500.4, relating to Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic. This emergency rule expired July 28, 2023.
SECTION-BY-SECTION SUMMARY
Proposed new §133.54 implements the provisions in HSC Chapter 241, Subchapter M.
Proposed new §133.54(a) defines "acute hospital care at home waiver program" and "hospital at home program" to establish their meaning when used in the new rule. These definitions are based on their meaning in HSC §241.401.
Proposed new §133.54(b) establishes conditions for which a hospital may operate a hospital at home program.
Proposed new §133.54(c) establishes the application process for a licensed hospital to seek HHSC approval to operate a hospital at home program and establishes an application fee.
Proposed new §133.54(d) requires hospitals to reapply for approval when applying to renew the hospital's license.
Proposed new §133.54(e) establishes the renewal application fee.
Proposed new §133.54(f) requires hospitals operating a hospital at home program to comply with CMS requirements and maintain CMS approval to participate in the acute hospital care at home waiver program and adopt policies and procedures to ensure hospital patient and staff safety.
Proposed new §133.54(g) clarifies HHSC may withdraw its approval for a hospital to operate a hospital at home program at any time if HHSC finds a threat to patient health or safety.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rule as proposed to pay for six full-time employee positions HHSC received to implement the hospital at home program.
The effect on state government for each year of the first five years the proposed rule is in effect is an estimated cost of $832,650 in fiscal year (FY) 2024, $780,103 in FY 2025, $780,103 in FY 2026, $780,103 in FY 2027, and $780,103 in FY 2028.
Trey Wood has also determined that for each year of the first five years that the rule will be in effect, there will be an estimated increase in revenue to state government as a result of enforcing and administering the rule as proposed. A hospital that chooses to operate a hospital at home program must pay a $350 initial application fee and then a renewal application fee of $390 per 10 at-home beds every two years when the hospital renews its license. HHSC cannot estimate the increase in revenue because HHSC is unable to anticipate how many hospitals will seek HHSC approval to operate a hospital at home program or how many beds a hospital may choose to include in its hospital at home program.
Enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of local government.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rule will be in effect:
(1) the proposed rule will not create or eliminate a government program;
(2) implementation of the proposed rule will affect the number of HHSC employee positions;
(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;
(4) the proposed rule will require an increase in fees paid to HHSC;
(5) the proposed rule will create a new rule;
(6) the proposed rule will not expand, limit, or repeal existing rule;
(7) the proposed rule will not change the number of individuals subject to the rules; and
(8) the proposed rule will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because it is optional for a hospital to operate a hospital at home program.
LOCAL EMPLOYMENT IMPACT
The proposed rule will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas and implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from patients being able to access hospital services from their homes, which will also increase a hospital's capacity to treat patients at the hospital.
Trey Wood has also determined that for the first five years the rule is in effect, persons who are required to comply with the proposed rule may incur economic costs because a hospital must pay a $350 initial application fee and then a renewal application fee of $390 per 10 at-home beds every two years when the hospital renews its license.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HCR_PRU@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R064" in the subject line.
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; HSC §241.026, which requires HHSC to develop, establish, and enforce standards for the construction, maintenance, and operation of licensed hospitals; and HSC §241.403, which requires HHSC to adopt rules establishing minimum standards for the operation of a hospital at home program by a hospital.
The new section implements Texas Government Code §531.0055 and HSC §241.403.
§133.54.Hospital at Home Program Application and Operational Requirements.
(a) As defined by Texas Health and Safety Code §241.401, and when used in this subchapter, the following words and terms have the following meanings.
(1) "Acute hospital care at home waiver program" means:
(A) the program established by the Centers for Medicare and Medicaid Services under United States Code Title 42 Section 1320b-5 that waives the requirements of 42 CFR Sections 482.23(b) and (b)(1); and
(B) a successor program to the program described by subparagraph (A) of this paragraph that is established by the United States Congress or the Centers for Medicare & Medicaid Services.
(2) "Hospital at home program" means a program operated by a hospital to provide in a home setting health care services that are considered to be acute hospital care for purposes of the acute hospital care at home waiver program.
(b) Notwithstanding hospital functions and services requirements in §133.41 of this subchapter (relating to Hospital Functions and Services) and hospital physical plant and construction requirements in Subchapter I of this chapter (relating to Physical Plant and Construction Requirements), a hospital may operate a hospital at home program and treat an eligible patient at that patient's home if the hospital:
(1) obtains approval from the Centers for Medicare & Medicaid Services (CMS) to participate in the acute hospital care at home waiver program; and
(2) receives written approval from the Texas Health and Human Services Commission (HHSC) to operate a hospital at home program.
(c) To apply for HHSC approval to operate a hospital at home program, an applicant shall submit the following to HHSC:
(1) a complete application to operate the program as indicated on the HHSC website;
(2) a nonrefundable application fee of $350;
(3) a copy of the CMS approval to participate in the acute hospital care at home waiver program; and
(4) any additional information requested by HHSC.
(d) A hospital shall reapply for HHSC approval to operate the hospital's hospital at home program when applying to renew the hospital's license under §133.23 of this chapter (relating to Application and Issuance of Renewal License).
(e) A hospital shall pay a nonrefundable renewal application fee of $390 per 10 beds designated for the hospital at home program in addition to the hospital's license renewal fee.
(f) A hospital that is approved by HHSC to operate a hospital at home program shall:
(1) maintain CMS approval to participate in the acute hospital care at home waiver program;
(2) comply with the CMS acute hospital care at home waiver program requirements and all other applicable statutes and regulations;
(3) develop, implement, and enforce policies and procedures to ensure:
(A) the patient's health and safety;
(B) the safety of hospital staff entering the patient's home; and
(C) the safety of the patient's home;
(4) ensure the hospital's policies and procedures adopted under paragraph (3) of this subsection require the patient's home to:
(A) be located at a physical residential address;
(B) maintain electricity service;
(C) maintain water service;
(D) maintain wastewater service;
(E) allow hospital staff entry into the home at designated times;
(F) have animals separated securely away from the patient care area while hospital staff is on site, except for service animals as allowed by the Americans with Disabilities Act of 1990; and
(G) maintain a safe route from the entrance and exit to the patient area within in the home;
(5) ensure the hospital's policies and procedures adopted under paragraph (3) of this subsection require the patient maintain access to telephone service;
(6) obtain a patient's written and informed consent to participate before the patient participates in the hospital's hospital at home program, including consent to allow HHSC staff to enter the patient's home at reasonable times during a complaint investigation or survey to perform their regulatory duties; and
(7) notify HHSC in writing no later than five business days if the hospital:
(A) chooses to no longer operate a hospital at home program; or
(B) loses CMS approval to participate in the acute hospital care at home waiver program.
(g) At any time, HHSC may withdraw its approval for a hospital to operate a hospital at home program if HHSC finds a threat to patient health or safety. Any patient being treated under the hospital at home program at the time HHSC withdraws its approval shall be safely relocated as soon as practicable and according to the hospital's policies and procedures.
(h) To the extent this section may conflict with a requirement in §133.21(c)(4)(B) or (C) of this chapter (relating to General), this section controls.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on October 5, 2023.
TRD-202303712
Karen Ray
Chief Counsel
Department of State Health Services
Earliest possible date of adoption: November 19, 2023
For further information, please call: (512) 834-4591