Three Midnights Could Decide Your Health Care Coverage


With more than twenty 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. During the period known as the PHE (Public Health Emergency) associated with COVID-19 the three midnights rule was suspended but it returned in 2023 to where it is today. See “Hail the Return of the Three-Midnight Rule,” Juliet Ugarte Hopkins, MD, for more information.

The three midnights rule is not the only consideration in determining whether medical care is covered. Another is the distinction between categories “under observation” and “admitted.” Some years back I suffered a fall on ice and was taken by ambulance to our local hospital which, by the way offered excellent treatment, but the result of the fall was a need for some serious reconstructive surgery. I asked a question based on my background while being wheeled in toward admissions. The first words I heard were “we are going to find a bed for you.” My question was “am I being considered ‘under observation’ or ‘admitted?’” The answer was “admitted.” I asked again just to be sure. The difference between “under observation” and “admitted” is critical if you want to know your bill will be paid under Medicare. You want
to know you are considered to be an inpatient.

Returning to the “three midnights rule” the Hopkins’ article summarized the rule: “Medicare will cover SNF <skilled nursing facility> costs for patients who have passed at least three midnights in an acute hospital setting in inpatient status and the patient requires skilled services…for a medical condition which is either related to the hospital stay or was being treated in a SNF before the hospitalization…which must be given by or under the supervision of skilled nursing or therapy staff…which are needed daily…” The article goes on to say …”If a patient does not immediately transfer to a SNF from the hospital at discharge, they have 30 days to utilize the benefit (e.g. SNF care would be covered if the patient realizes after discharge to home that they do require SNF care)…”

Knowledge of and attention to the rules can be important.

About the Author Janet Colliton

Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.

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