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Advocates Pursue Appeal of Federal Court Decision

MPLP Summer 2007 Elder Law Section Newsletter Article

                Issue 34, Summer 2007


Advocates Pursue Appeal of Federal Court Decision Regarding Interpretation of the “Three Day Hospital Stay” Rule for Medicare Payment of Subsequent Nursing Home Care

Pursuant to federal law, individuals seeking Medicare coverage of nursing home care must first remain in a hospital for a three day qualifying stay.  CMS has interpreted this requirement to refer only to days when the patient was admitted to the hospital but not to time spent in the emergency room or on “observation status,” even though patients often spend many hours in the hospital before gaining actual admission status.  In 2004, advocates challenged this interpretation in a nationwide class action, Landers v. Leavitt, No. 3:04CV1988JCH (D. Conn.), filed Nov. 23, 2004.  However, last year, the federal district judge deferred to CMS’s interpretation that beneficiaries who spend part of the three days in the ER or on outpatient status are not eligible for the follow-up skilled nursing facility coverage. Plaintiffs appealed from the judgment and the government cross-appealed the order granting certification of a nationwide class.  The parties are scheduled to complete briefing these issues this month and oral argument is expected to take place in the Second Circuit in the fall. For information on the case or issue, contact Gill Deford ( or Toby Edelman ( in the Center's Connecticut or Washington offices, respectively.

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