Three-Hour Rule NOT Defined: How to interpret regulations when black-and-white guidelines do not exist
I was recently asked whether there was evidence somewhere to support that patients discharged on day seven do not have to receive three hours of therapy for at least five days of the week. I immediately went to my trusty Medicare Benefit Policy Manual – Chapter 1, which I assumed would provide me a concrete answer for this scenario. Well, I was mistaken and started wondering how to respond to this question.
Having just finished watching the final episode in season seven of Game of Thrones, the following interaction between Lord Baelish (a.k.a. Littlefinger) and Sansa Stark came to mind:
Sometimes when I try to understand a person’s motives, I play a little game. I assume the worst. What’s the worst reason they could possibly have for saying what they say and doing what they do? Then I ask myself: How well does that reason explain what they say and what they do?
What does this quote have to do with the three-hour rule?
Do I really think that CMS regulations are the “worst” or that the organization has “bad” motives? Absolutely not. However, if you take the essence of this quote, it can be used to assist in figuring out the intent of a regulation when there isn’t a concrete, black-and-white answer. The three-hour rule interpretation is a great example.
Per the Medicare Benefit Policy Manual, the three-hour rule is the “generally accepted standard by which the intensity of services is typically demonstrated in IRFs.” It also states that the “… patient’s IRF medical record must document that the required therapy treatments began within 36 hours from midnight of the day of admission to the IRF.” You might be thinking that because therapy doesn’t have to start until day three, I don’t have to worry about meeting the three-hour rule until day four. Is this the justification that a patient with a stay less than seven days doesn’t have to meet the three-hour rule? Before you answer, let’s play the little “game.”
Why would CMS determine a stay less than seven days was not an appropriate IRF admission?
In all the documentation related to the justification of a patient stay in an IRF, CMS repeatedly mentions that the “… patient generally required the intensive rehabilitation therapy services that are uniquely provided in IRFs.” In other words, if a patient is admitted to an IRF, the patient must require AND participate in intensive therapy services that are unique to an IRF. If a patient is not participating in this unique level of service, then CMS will question whether the patient could have received rehabilitation at a lesser level of intensity (such as a skilled nursing or home health).
If, during this stay of six midnights, the patient only received three or four days of three hours of therapy, does this meet the intensity of rehab if the patient had the potential to have at least five days of three hours of therapy? Does the reason for requiring intensive rehabilitation explain why CMS might say that this particular stay was not appropriate?
Granted, there may have been extenuating circumstances in the scenario, but if you look at the reasons why a patient’s stay might be denied, you must look past the black-and-white rules to understand the intent of the regulation.
In today’s world, it isn’t enough to be able to just check off the boxes that I did this or did that; instead, it is necessary to really dig into the documentation to be sure that each patient meets all criteria for IRF admission.