What a Difference a Word Makes: Qualifying Three-Day Stays

by Ronald Hirsch, MD, FACP, CHCQM

I recently had the honor of giving the keynote address at the annual meeting of a chapter of the Case Management Society of America to provide an update on Medicare regulations. After my talk, I was approached by a social worker who works at a military treatment facility.

She related that a local long-term care hospital (LTCH, also known as LTACH) was unwilling to accept military veterans who were cared for at her facility or any Veterans Affairs (VA) hospitals even though they would otherwise qualify for LTCH care. The reason the LTCH would not accept these patients was because they did not have a preceding visit in a “regular” hospital. The social worker was seeking a solution.

This intrigued me. I know that CMS allows a patient’s three-day inpatient admission to qualify for his or her Part A skilled nursing facility to be at any hospital, including a hospital in another country, so I was surprised this LTCH would refuse VA patients. I began searching the Medicare MLN Matters® index, where I would learn that the 2015 inpatient prospective payment system (IPPS) final rule changed the payment structure for LTCHs. CMS is now separating payment for admissions into two types: the standard LTCH payment for patients who had a three-day or more intensive care unit (ICU) stay or a patient who requires 96 hours or more of mechanical ventilation at the LTCH. The rule also noted a site-neutral payment rate for patients who do not meet either of those two criteria.

But more specifically, MLN Matters MM9015 states criterion one by noting that the patient must “have been admitted directly from an IPPS hospital during which at least three days were spent in an ICU or coronary care unit…” I found it strange that CMS would restrict this to IPPS hospitals (i.e., acute care hospitals paid under the diagnosis-related group system) and exclude all other acute care hospitals.

So my next step was to go to the actual rule. The rule states, “The stay in the LTCH was immediately preceded by a discharge from an acute care hospital that included at least three days in an ICU…” Do you see what happened? The 2015 IPPS final rule published in the Federal Register states “acute care hospital” and MLN Matters changed this to “IPPS hospital.”

Not satisfied, I dug a bit deeper. In the hierarchy of regulations, the Social Security Act and Code of Federal Regulations carry more weight than the Federal Register, which has more weight than MLN Matters. So off I went to the Code of Federal Regulations and found 42 CFR 412.552, “Application of site neutral payment rate.” The regulation, section (b) states:

The discharge from the subsection (d) hospital that immediately preceded the admission to the long-term care hospital includes at least three days in an intensive care unit (as defined in §413.53(d) of this chapter), as evidenced by at least one of the revenue center codes on the claim for the discharge that indicate such services were provided for the requisite number of days during the stay.

Now the term has changed three times. The Code of Federal Regulations says “subsection (d) hospital,” the Federal Register says “acute care hospital,” and MLN Matters says “IPPS hospital.”

I went back to the Social Security Act, section 1886 (d)(1)(B), where I found that the term “subsection (d) hospital” means a hospital located in one of the 50 states or the District of Columbia other than a psychiatric hospital, rehabilitation hospital, hospital whose inpatients are predominantly individuals under 18 years of age, LTCH hospital, or cancer hospital.

So what CMS has inadvertently done is potentially deny LTCH services to a patient who spent three or more days in the ICU of a military hospital, VA hospital, or even a critical access hospital. That clearly is not the intent of the law. I have notified the MLN Matters team of the error, along with the implications, and CMS has already acknowledged receiving that communication. Furthermore, when I notified an acting deputy director of the Acute Care Division of CMS, I received a prompt response and clarification—on a Sunday no less. Such prompt responses are refreshing in light of the lack of answers we have all received during our three-year battle with the 2-midnight rule.

The astute reader may have noticed that LTCHs are not forbidden from accepting patients who do not meet one of the two criteria. The law only lowers payment for patients who do not meet the criteria, but it clearly is financially disadvantageous to accept them. Is an LTCH allowed to turn down patients who did not have an ICU stay of three or more days despite meeting other qualifications? I’ll leave that question to the ethicists and compliance officers to debate.

Editor’s note: Hirsch is the vice president of the Regulations and Education Group at Accretive Health in Chicago.