The Nuances of the Two-Midnight Rule

When is a patient an inpatient?

A reader we’ll call Michelle asked a question during a recent Monitor Mondays broadcast — a question that encapsulated many of them: how can a Medicare patient who stays two midnights for a non-medical reason be an inpatient? 

For example, consider a patient who comes in for dehydration and gets IV fluids for one day, then seems ready for discharge, but the physician decides to watch the patient for one more day to check labs the next morning, because the patient does not have transportation to come back in for a lab check. Michelle says that “Medicare clearly states they do not pay for convenience, custodial (assistance), or delays in care.” I agree that Medicare doesn’t pay for convenience or custodial care, though I think there is a pretty good argument that delays in care can, in some instances, be covered. In any event, Michelle’s question is a great one, and on a topic I have been thinking about for two decades. This is one area where the esteemed Dr. Ronald Hirsch may not entirely agree with me, and I will be eager to hear his thoughts.

Let’s start by looking at the two-midnight rule. “The expectation of the physician should be based on such complex medical factors as patient history and comorbidities, the severity of the signs and the symptoms, current medical needs, and the risk of an adverse event.” That last underlined phrase is key. I am going to change Michelle’s question slightly, to add that the patient lives alone, and the doctor is worried that the patient might need someone to keep an eye on them: someone to serve as a nurse. In that case, I would say that discharging the patient poses a risk of an adverse event. 

Under the language in the regulation, I think it is appropriate to consider the patient an inpatient. Note that there is language in the Medicare Benefit Policy Manual that supports this reading. It says that among the factors a physician should consider when determining patient status is “the types of facilities available to inpatients and outpatients.” What can that mean, if it is not responding to the reasonableness of alternative care options? A lack of safe care at home means that there is not an alternative facility.

The Manual repeats the regulation’s provision that the physician should consider the medical predictability of something adverse happening to the patient. In short, if you are worried that something bad might happen to the patient because they live alone, it is medically appropriate to keep them in a situation in which they are observed. You are saying that they need nursing care. And if you look at the definition of inpatient hospital services in the Benefit Policy Manual, nursing services and other related services are included in the definition of hospital services. If a patient needs someone to keep a medical eye on them, they need hospital care, and if they need hospital care for two nights, they are an inpatient. 

Returning to Michelle’s real question, where the only issue is the patient’s lack of a ride to return for a test, that one is a bit more difficult. There, the issue is not that the patient requires monitoring, it is that the patient requires transportation. I would feel much less comfortable defending that case, although there is still an argument to be made in defending such an admission decision. The Benefit Policy Manual includes some difficult-to-understand language suggesting that physicians should consider “the availability of diagnostic procedures at the time when and at the location where the patient presents.” The Manual fails to explain how the physician should consider those factors, but it at least creates an argument that this admission is necessary. Nevertheless, my recommendation would be to send that patient home and provide them with an Uber ride on the hospital’s dime. The bottom line is that I think there is a giant distinction between situations in which the patient does not have a ride home and situations in which the patient does not have access to care at home that will keep them safe. “Lacking a ride” is not “needing hospital care,” but “lacking the level of care you need to be safe” should be. 

The Thompson Twins sing “Doctor! Doctor!” and “I don’t want to stay here on my own.”  Such a patient’s desire, by itself, is not enough to justify an admission – but if they really cannot stay there on their own, I think admission is defensible, because you don’t want the patient to travel to eternity.

Programming Note: Listen to healthcare attorney David Glaser and his “Risky Business” segment every Monday on Monitor Mondays at 10 Eastern.