Armed with what it calls a growing body of evidence and “test” results gathered during the pandemic, a major aging services association is calling for an end to the 58-year-old rule requiring a three-day inpatient hospital stay as a precondition for Medicare coverage of a nursing home stay.

The rule is outdated, as well as “unreasonable, unnecessary, irresponsible and inequitable,” said LeadingAge’s top executive in letters to leaders of both political parties in Congress, as well as the Secretary of the Department of Health and Human Services.

Action is needed quickly since the public health emergency is set to expire May 11, and with it a waiver for the 3-day rule, emphasized LeadingAge President and CEO Katie Smith Sloan.

“We urge the Department of Health and Human Services to immediately make permanent the waiver of the 3-day requirement, and we urge Congress to do away with the requirement entirely,” Sloan said in a statement explaining the letters, which were sent late Wednesday. 

Other long-term care associations and operators have expressed similar hopes for a permanent extension of waiver conditions.

Calling the mandated stays “wasteful and ineffective,” Sloan broke down the many levels at which the rule, at worst, has been proven a failure and, at best, superfluous. She said:

  • The rule is unreasonable because over the last five-plus decades of its existence, nursing homes have become more adept at providing routine care, such as intravenous antibiotics, which is now often assigned to hospitals.
  • Audits by Medicare Administrative Contractors (MACs) since 2020 show that waiving the rule has had no negative effect on patient outcomes, and also has not led to an increase in inappropriate admissions. CMS also could have rescinded the waiver at any time if it had proven ineffective, which it did not, she reasoned.

“[B]oth rehospitalizations and emergency department visits for short-stay residents held steady from 2019-2022 while rates of improvements in functioning increased,” Sloan wrote to lawmakers, calling in proof that the rule is “not a meaningful requirement.”

  • “Millions of dollars in unnecessary health expenses” have been rung up due to the rigid three-day stay mandate, Sloan also asserted. 

In 2021, the average inpatient acute hospital care day charge was $2,883, far above a daily rate for skilled nursing care, her letter noted.

  • Further, the rule is inequitable, Sloan wrote, because of its negative impacts on residents of disadvantaged neighborhoods, as illustrated by previous study results. In addition, lengthening hospital stays can put elderly patients at a disadvantage.

“Lengthening hospital stays is duplicative, costly, and perhaps most importantly, confusing and challenging for older people, particularly those with cognitive impairments,” Sloan wrote in the letters.

The challenges providers have faced during the PHE “will not simply vanish on May 11,” she added as justification for HHS permanently continuing the waiver and Congress passing legislation to codify it.