Rescinded 1981

SSR 74-15c: Sections 205(a) and 1861(i) [*] (42 U.S.C. 405(a) and 1395x(i)).—Hospital Insurance Benefits—3-Consecutive—Day Hospital Stay Requirement Prior to Admission to Skilled Nursing Facility—Validity of Secretary's Regulations

20 CFR 405.120(c)

74-15c

AMOS V. WEINBERGER, U.S.D.C., M.D. Tenn., Civil Action No. 6762, (6/4/73)

A claimant for hospital insurance benefits under Part A of title XVIII of the Social Security Act, was admitted as a hospital in-patient on December 30 and discharged January 1st. Although the claimant was admitted on January 9 to a participating skilled nursing facility, program payment was denied for failure to meet the 3-consecutive-day hospital stay required by section 1861(i) of Act. Held, the Secretary's regulation, which provides that for purposes of the 3-consecutive-day requirement the calendar day of admission is counted but not the calendar day of discharge, is not unreasonable given the statutory requirement and is not in excess of the authority delegated the Secretary; further held, as applied to this case the regulation precludes Medicare reimbursement for services furnished in the skilled nursing facility.

This is an action brought to review a final decision of the Secretary of Health, Education and Welfare pursuant to provisions of §205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g).

Lonnie F. Neal, who was entitled to hospital insurance benefits under Part A of Title XVIII of the Social Security Act, was admitted as an in-patient to the Vanderbilt University Hospital, Nashville, Tennessee, on December 30, 1970, and discharged on January 1, 1971. On January 9, 1971, he was admitted to the MediCenter of Nashville in Nashville, Tennessee, a participating extended care facility. Program payment to the MediCenter of Nashville on behalf of Mr. Neal for services he received there was denied because he had not met the three-consecutive-day hospital stay requirements as set forth in 42 U.S.C. § 11395x(i) prior to his admission to the extended care facility.[**]This suit is brought by Mrs. Evelyn Amos on behalf of her father, Lonnie F. Neal, now deceased.

It is admitted that to obtain post-hospital extended care services, the deceased must have received in-patient care from a hospital for not less than three consecutive days before his discharge from the hospital in connection with his transfer to a facility for post-hospital extended care services.

Title 42 U.S.C. §1395(y)(4) provides:

(4) For purposes of subsection (i) of this section, the determination of whether services furnished . . . constitute post-hospital extended care services shall be made in accordance with and subject to such conditions, limitations, and requirements as may be provided in regulations.

Title 42 U.S.C. §405(a) provides:

(a) The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.[***]

The reason for having a three-day requirement is found in the following excerpt from the Act's legislative history:

"The 3-consecutive-day hospital inpatient requirement is a period of 3 consecutive days beginning with the calendar day of admission even if less than a 24-hour day, and ending with the day before the calendar day of discharge. Thus, in determining whether the 3-consecutive-day requirement is met, the day of admission is counted as one day; the day of discharge is not counted as a day; and each intervening day is counted as a single day." 20 C.F.R. §405.120(c).[****]

In meeting the three-day requirement, plaintiff asserts that since the deceased entered the hospital on December 30, 1970, and left on January 1, 1971, he had been hospitalized for three calendar days. It is contended that rules and regulations which more narrowly construe such a period should be judicially disregarded as unreasonable and illegal. However, the construction sought by plaintiff could lead to a period of hospitalization far shorter than that envisioned by the lawmakers. For instance, if a patient entered the hospital at 11:59 p.m. on December 30, 1970, and left at 12:01 a.m. on January 1, 1971, the period of hospitalization, although spanning three calendar days, would be only two minutes in excess of 24 hours. At the other extreme, admittedly, could occur the situation in which a patient entered at 10:01 a.m. on December 30, 1970, and left at 11:59 p.m. on January 1, 1971. In this instance, the patient would lack only two minutes of being hospitalized 72 hours, and yet would not meet the Secretary's three-consecutive-day requirement, which could have been satisfied in a shorter time spread over an additional calendar day. Notwithstanding, however, the possible disparity of inpatient time which could occur under either calculation, the question remains whether, in light of the congressional purpose of achieving adequate medical evaluation, the Secretary's regulation is unreasonable and in excess of the power granted him by he Act. Furthermore, the answer must recognize that the Secretary's regulations must be designed to cover all possible situations, not merely those which occur at the extremes of the three-day time period.

In Mourning v. Family Publications Service, Inc., No. 71-829 (U.S. Sup.Ct., decided April 24, 1973), the Supreme Court stated:

We have consistently held that where reasonable minds may differ as to which of several remedial measures should be chosen, courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority. [Citing cases.] Id. at 15.

Furthermore the court stated that where regulations are reasonably related to the purpose of the enabling legislation, the regulations will be sustained. It is further stated by the Supreme court:

We have noted above that the objective sought in delegating rulemaking authority to an agency is to relieve Congress of the impossible burden of drafting a code explicitly covering every conceivable future problem . . . Id. at 19.

Based on the rationale of the above-quoted case, this court cannot say that the Secretary, when confronted with the task of setting forth practical rules in applying the "three consecutive days" of required hospital care, exceeded his authority or made an unreasonable practical application.

Therefore, this case is hereby dismissed.

SMITH, District Judge

[*] Section 1861 (i) provides: The term "post-hospital extended care services" means extended care services furnished an individual after transfer from a hospital in which he was an inpatient for not less than 3 consecutive days before his discharge from the hospital in connection with such transfer. For purposes of the preceding sentence, items and services shall be deemed to have been furnished to an individual after transfer from a hospital, and he shall be deemed to have been an inpatient in the hospital immediately before transfer therefrom, if he is admitted to the skilled nursing facility (A) within 14 days after such discharge from such hospital, or (B) within 28 days after such discharge, in the case of an individual who was unable to be admitted to a skilled nursing facility within such 14 days because of a shortage of appropriate bed space in the geographic area in which he resides, or (C) within such time as it would not be medically appropriate within 14 days after discharge from a hospital; an individual shall be deemed not to have been discharged from a skilled nursing facility within 14 days after discharge therefrom, he is admitted to such facility or any other skilled nursing facility. (Ed.)

[**] The 1972 Amendments to the Social Security Act provided that wherever the term "extended care facility" appeared in title XVIII, the term "skilled nursing facility" should be substituted. (Ed.)

[***]This provision applies with respect to Title XVIII of the Social Security Act, 42 U.S.C. 1395 et seq., to the same extent as it is applicable to Title II. See Section 1872 of the Act, 42 U.S.C. 1395ii. Also see Section 1871, 42 U.S.C. 1395hh. (Ed.)

[****]The Court refers to the same excerpt as legislative history, but the excerpt cited is the text of the regulations, 20 C.F.R. §405.120(c). (Ed.)