Emergency physicians are concerned about the return of Medicare's 3-day rule when a waiver that suspended it expires with the COVID Public Health Emergency (PHE) on May 11, warning it will make hospital overcrowding much worse.

The waiver has allowed hospitals to bypass a requirement that traditional Medicare beneficiaries must have 3 full days of an acute stay in order for Medicare to cover their skilled nursing facility (SNF) care when they are discharged.

At the moment, these patients can be discharged directly to a nursing home -- even from the emergency department if appropriate and they have been stabilized -- and still get Medicare coverage for their SNF stay.

When the original policy goes back into effect, patients not hospitalized for that duration will have to pay out-of-pocket for SNF care. Additionally, many skilled nursing facilities won't accept beneficiaries who didn't fulfill the requirement.

That means hospitalists will be under more pressure to keep these patients in acute care beds for the required 3 days, even if they don't really need to be there, emergency physicians said.

"Patients need to meet criteria in order to be admitted in the first place," Jeffrey Davis, director of regulatory and external affairs for the American College of Emergency Physicians (ACEP), told MedPage Today. "But sometimes when a patient needs only 1 or 2 days, they're going to try to keep them there for 3 days so they qualify if they need SNF coverage."

He gave an example of a patient who has a knee operation and there's a surgical complication that takes him to the emergency department. "If he needed rehab treatment, he could probably go safely and directly to a skilled nursing facility. But instead, you have to be an inpatient for 3 days. It doesn't make any sense."

The domino effect means inpatient units will fill up faster, beds will be occupied for longer periods, and more patients will be boarded in the emergency department, taxing emergency department staff even more, Davis said.

The ACEP website has a section devoted to what Davis called "horrific" stories of boarding in hospital emergency rooms, where patients are receiving what he called "hallway medicine."

"Our worry is if they reinstate this, it will make matters even worse, because when the inpatient beds are full, this backs up and locks up whole lines of patients," he said.

Davis noted that most Medicare Advantage enrollees and beneficiaries cared for under certain experimental models such as acute care organizations (ACOs) are not bound by the rule.

Hospital Overcrowding 'Already the Worst in My Career'

A combination of factors in the current "peri-pandemic" period are contributing to hospital overcrowding, said Abhi Mehrotra, MD, an emergency physician and vice chair of emergency medicine at the University of North Carolina Hospitals.

Right now, for example, 60% to 70% of his hospitals' emergency room beds last week were occupied by patients "waiting to go someplace else, either into the hospital for a medical reason, or into a state psychiatric facility, or other kind of hospitalization for behavioral health purposes," said Mehrotra, who is also the past president of ACEP's North Carolina chapter.

"We are definitely over capacity and crowded on the inpatient side, and that has led to emergency department boarding and ED overcrowding," he said.

Workforce issues play a role as well. Mehrotra said his hospital has "had times when beds within the hospital had to be shut down because we didn't have nurse staffing for those beds. I've heard of facilities that have shut down operating rooms because they don't have the staff to run them."

Some of the beds are filled with patients receiving long-delayed but necessary elective care. But much more glaring and difficult, he said, is that "the patients have changed."

"We didn't use to have patients brought into the emergency room because their families weren't able to care for them," he said. Patients have behavioral or cognitive issues, and "they need other resources and placement but there's no medical diagnosis to admit them."

Sometimes the nursing homes themselves can't take care of a patient whose status has changed, and send them to the hospital as well.

Scripps Health in San Diego has been keeping track of "avoidable bed days," or ABDs -- days in which patients were medically stable enough to be discharged but remained in acute care because there was no safe, appropriate setting for them to move to.

From Oct. 16, 2022 to April 15, 2023, its five hospitals and behavioral health unit counted 18,301 avoidable bed days affecting 1,958 unique patients, or an average of 101 ABDs per day.

Scripps Health president and CEO Chris Van Gorder said most of his system and that of others in his region are at capacity.

"Because of low state and federal reimbursement for their patients, SNFs, long-term care, and behavioral health facilities are not taking these low-pay and sometimes, complex patients and we are ending up with beds that are tied up for months and longer," he said.

"To be honest," Van Gorder said, "while the end of the PHE will make things a bit worse, they are already the worst I've seen in my healthcare career."

'Antiquated' Rule

Vincent Mor, PhD, of the Brown University School of Public Health in Rhode Island, and author of an invited commentary on the 3-day rule's history in JAMA Internal Medicine, agreed that the waiver's demise could lead to additional patients taking up hospital beds.

Depending on the size of the hospital, he said, on any day "you could have as many as 10 or 15 extra bed days waiting for that third day to finish."

"If the emergency doctors are concerned about it, it's because they're admitting people who they may not need to admit," he said.

Many others interviewed said it's time for the 3-day rule -- which is as old as Medicare itself, going back to 1965 -- to be abolished.

Leading Age, an advocacy organization for long-term and other senior care providers, has petitioned HHS Secretary Xavier Becerra to permanently extend the waiver.

Although the rule's original intention of preventing hospitals from inappropriately discharging certain patients was noble, recent Medicare audits showed the waiver had no negative impact on patient outcomes, according to Leading Age.

In a statement, the group called the 3-day rule "antiquated" and said it's "onerous for patients and providers and reimplementing it will create hardships for older adults and families who need access to care."

Cheryl Clark has been a medical & science journalist for more than three decades.

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Return of 3-Day Rule Will Stress Crowded Hospitals Further - Medpage Today