Jim Berklan

Most bills introduced in the US Senate or House get nowhere close to becoming a law. There are many reasons for this, many with roots well before our current era of hyper partisanship. So a bill’s odds of success are typically low to start with. 

But there’s one nursing home-focused measure — actually a reintroduced measure — that should be a slam dunk to pass among members of both major political parties.

Cutting to the chase, it’s another stab at getting around the outdated three-day (actually three-night) rule for Medicare coverage of nursing home stays. The Improving Access to Medicare Coverage Act of 2023 would count observation-stay days in the hospital toward the three-day accounting. It’s something that’s long overdue, especially given hospitals’ blatant abuse of this designation.

It’s a bipartisan-sponsored effort, which is a really helpful first step to pass something in today’s political climate.

It’s also supported by the patient lobby, which represents the often-unwitting victims of “observation” designations that can extend far beyond a one-, two- or many more day trial period that most may not even know exists. This observation subterfuge affects quality of care, can ravage patients financially and at the same time upset the proper flow of patients out of the acute-care vortex.

But Congress should not only pass the Improve Access act, it should do one better and also do away with the three-day waiver altogether. One hopes that just because the public health emergency is over and the three-day waiver is back, discussion won’t be muted about the drive to get this done.

It was just mere months ago when researchers released study results showing that use of this waiver was not abused during the pandemic. Care did not suffer and costs did not go up.

In policy scorekeeping that’s: Clinical win. Economical win. Political failure.

The above-mentioned study was executed by none other than the Centers for Medicare & Medicaid Services. That ought to carry quite a bit of weight, you say? Well, it turns out that only Congress can rescind the three-day waiver, as many a CMS lieutenant who has spoken before LTC groups recently have eagerly reminded.

Keep in mind that even before the pandemic spurred the blanket waiver and the subsequent study revealed the “no harm” findings, others were (and still are) using CMS-blessed waivers. We’re talking accountable care organizations and managed care groups.

Sure, those are known for managing their client base so their results employing the waiver might be tilted to look prim, proper and benign. But here’s the rub: Federal regulators have no problem monitoring or auditing all kinds of other provider activity. Why not waive the three-day requirement for everyone and then simply track results for a year or two, or whatever makes sense, to make sure certain bad-faith actors aren’t abusing the system?

Washington should take a flier on this. It’s time to do away with the antiquated, 58-year-old three-day rule. This could wind up saving everybody angst, and money. 

If those currently benefiting from the artificially slow flow of patients to long-term care facilities don’t like it, well, too bad.

Given the demographic boom upon us, there are going to be plenty of older, needy individuals in search of all kinds of earnest, ethical providers for many years to come.

James M. Berklan is McKnight’s Executive Editor.

Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.