Three midnights could decide your health care coverage

With more than 20 years as an elder law attorney I have come to realize both how easy (or difficult) it might be to obtain health care coverage under certain circumstances and also how easily coverage can be lost due to what might be regarded as minor differences in description of conditions or lack of knowledge regarding some basic rules.

The rules may be basic for some health care practitioners but not for the public in general.

They certainly are difficult to understand for a patient or family member trying to obtain care during emergency circumstances and rules may be described too late to make a difference.

One example of this issue is what has been referred to as the “three midnights rule” regarding continuation of medical care for “rehab” services with payment by Medicare on discharge from hospitalization. Not everyone receives “rehab” in a skilled nursing (SNF) or similar facility that is paid for by Medicare on leaving the hospital. The difference can be extremely expensive and can run into many tens of thousands of dollars or more when Medicare or a Medicare Advantage plan might not pay. Note also there is a “two midnight” rule which relates to coverage by Medicare for hospital stay.

The “midnight” rules are a shorthand way of describing rules published by CMS, the Center for Medicare and Medicaid Services, a government agency charged with administering Medicare and Medicaid. “Three midnights” is used by skilled nursing and medical facilities to separate those patients who are generally considered in need of additional care because they have been inpatient in the hospital for that period of time and were in need of hospital level of care but, of course, many patients who are in need of days of hospitalization might be considered for discharge anyway prior to the three midnights. This could be due to misdiagnosis, unavailable space or lack of sufficient oversight.

When a family member is discharged from the hospital after a day or after one or two nights and goes to a rehab facility or a nursing home, spouses and children often do not understand the implications until they receive the bill. Medicare can pay for up to 100 days of such care (rarely does this ever reach 100 days, however) but if Medicare does not cover either because of the three midnights rule or otherwise, then the cost is private pay.

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