I 

118TH CONGRESS 

1ST SESSION H. R. 6110 

To amend title XVIII of the Social Security Act to restore physician judgment 

to prescribe the appropriate mix of skilled modalities that constitute 

an intensive rehabilitation therapy program in an inpatient rehabilitation 

hospital or unit. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 26, 2023 

Mr. THOMPSON of Pennsylvania (for himself and Mr. COURTNEY) introduced 

the following bill; which was referred to the Committee on Ways and Means 

A BILL 

To amend title XVIII of the Social Security Act to restore 

physician judgment to prescribe the appropriate mix of 

skilled modalities that constitute an intensive rehabilitation therapy program in an inpatient rehabilitation hospital or unit. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Access to Inpatient 

5 Rehabilitation Therapy Act of 2023’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 


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1 (1) Intensive, coordinated medical rehabilitation 

2 provided in inpatient rehabilitation hospitals and 

3 units is critical to Medicare beneficiaries with inju4 ries, illnesses, disabilities, and chronic conditions in 

5 order to return to health, full function, independent 

6 living, and a high quality of life. 

7 (2) The Centers for Medicare & Medicaid Serv8 ices (in this section referred to as ‘‘CMS’’) uses an 

9 ‘‘intensity of therapy’’ requirement to help determine 

10 which Medicare beneficiaries are appropriate for 

11 treatment in an inpatient rehabilitation hospital or 

12 unit. CMS has interpreted the intensity of therapy 

13 requirement through application of the so-called 

14 ‘‘Three Hour Rule’’ (42 C.F.R. 412.622(a)(3)(ii)) 

15 which requires the patient to be able to participate 

16 in 3 hours of rehabilitation therapy per day, 5 days 

17 per week, or 15 hours of rehabilitation therapy over 

18 a 1-week period. 

19 (3) In 1989, a Federal district court held that 

20 ‘‘Medicare determinations for hospital rehabilitation 

21 care are to be based upon an assessment of each in22 dividual patient’s need for care’’ and ‘‘denials of ad23 missions, services, and/or Medicare coverage based 

24 upon numerical utilization screens, diagnostic 

25 screens, diagnosis, specific treatment norms, the 


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1 ‘Three Hour Rule’, or other ‘rules of thumb’ are not 

2 appropriate.’’ Hooper v. Sullivan, No. H–80–99 (D. 

3 Conn. 1989). 

4 (4) Before 2010, a CMS ruling explicitly stated 

5 that physical therapy, occupational therapy, speech 

6 therapy, and orthotics and prosthetics were counted 

7 toward the Three Hour Rule on an as-needed basis. 

8 In addition, the CMS ruling stated that ‘‘other 

9 therapeutic modalities’’ that were determined by the 

10 physician and the rehabilitation team to be needed 

11 by the patient ‘‘on a priority basis’’ would quality to12 ward satisfaction of the rule (HCFA Ruling 85–2). 

13 (5) This language allowed physicians with spe14 cialized training and experience in inpatient hospital 

15 rehabilitation to prescribe the mix of skilled thera16 pies and services appropriate to meet the needs of 

17 each individual patient in order to satisfy the Three 

18 Hour Rule in the inpatient rehabilitation hospital or 

19 unit setting. 

20 (6) CMS by regulation (74 Fed. Reg. 39811 

21 (August 7, 2009)) revised these prior requirements, 

22 effective January 1, 2010. The Secretary of Health 

23 and Human Services acknowledged that he is bound 

24 by the court’s decision in Hooper v. Sullivan that 

25 ‘‘rules of thumb’’, including the Three Hour Rule, 


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1 may not be imposed to deny IRF coverage. The Sec2 retary stated that he would ‘‘monitor the appro3 priateness of instances where IRFs demonstrate the 

4 required level of intensity’’ without meeting the 

5 Three Hour Rule. 

6 (7) The Secretary’s 2010 regulation limited the 

7 Three Hour Rule to recognize only 4 skilled services 

8 (namely, physical therapy, occupational therapy, and 

9 speech language pathology services as well as 

10 orthotics and prosthetics) and required that the pa11 tient’s physician must certify that the patient re12 quires, at admission, at least 2 of the 4 therapy mo13 dalities, one of which must be either physical ther14 apy or occupational therapy. The Secretary’s 2010 

15 regulation removed the discretion of the physician, 

16 in consultation with the rehabilitation team, to pre17 scribe other skilled modalities and therapeutic serv18 ices needed by the patient that would count toward 

19 satisfaction of the Three Hour Rule. As a result, the 

20 full complement of medically necessary, skilled ther21 apy services may not be available to inpatient reha22 bilitation hospital patients as part of their plan of 

23 care. 

24 (8) Skilled, therapeutic modalities in addition to 

25 physical therapy, occupational therapy, speech lanVerDate Sep 11 2014 20:15 Oct 28, 2023 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6110.IH H6110

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1 guage pathology services, and orthotic and prosthetic 

2 services that should be counted toward the Three 

3 Hour Rule include recreational therapy services, res4 piratory therapy, and other skilled modalities as de5 termined by the Secretary when such skilled services 

6 are medically necessary and prescribed by a physi7 cian as part of the patient’s plan of care. 

8 (b) PURPOSE.—The purpose of this Act is to restore 

9 reliance on the professional judgment of the treating phy10 sician, in consultation with the rehabilitation team, when 

11 determining whether a Medicare patient meets the inten12 sity of therapy requirement of an inpatient rehabilitation 

13 hospital or unit in order for that patient to gain access 

14 to the appropriate mix of medically necessary, rehabilita15 tion services in that setting. This Act retains the current 

16 requirement that the patient must need at admission phys17 ical therapy, occupational therapy, speech language pa18 thology services, or orthotic and prosthetic services but 

19 permits the patient’s physician to modify the intensive re20 habilitation therapy program after admission to include 

21 additional necessary therapy modalities. 


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1 SEC. 3. PHYSICIAN JUDGEMENT TO DETERMINE THE THER2 APY MODALITIES THAT CONSTITUTE AN IN3 TENSIVE REHABILITATION THERAPY PRO4 GRAM IN DETERMINING THE MEDICAL NE5 CESSITY OF SERVICES IN AN INPATIENT RE6 HABILITATION FACILITY. 

7 (a) IN GENERAL.—Section 1886(j) of the Social Se8 curity Act (42 U.S.C. 1395ww(j)) is amended by adding 

9 at the end the following new paragraph: 

10 ‘‘(9) PHYSICIAN JUDGEMENT TO DETERMINE

11 THE THERAPY MODALITIES THAT CONSTITUTE AN

12 INTENSIVE REHABILITATION THERAPY PROGRAM IN

13 A REHABILITATION FACILITY.—In the case of a 

14 claim for payment under the prospective payment 

15 system under this subsection with respect to a dis16 charge of an individual, in implementing section 

17 412.622 of title 42, Code of Federal Regulations (or 

18 any successor to such regulation) for purposes of de19 termining if items and services with respect to such 

20 discharge are to be considered reasonable and nec21 essary under section 1862(a)(1), the Secretary shall 

22 provide that an intensive rehabilitation therapy pro23 gram described in paragraph (a)(3)(ii) of such sec24 tion 412.622— 

25 ‘‘(A) shall, at the time of the admission as26 sociated with such discharge, consist of physical 


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1 therapy, occupational therapy, speech language 

2 pathology services, or orthotic and prosthetic 

3 services (or any combination thereof); and 

4 ‘‘(B) may, after such admission, be modi5 fied by the rehabilitation physician treating 

6 such individual to include other skilled thera7 peutic modalities, including recreational ther8 apy, respiratory therapy, and other skilled serv9 ices specified by the Secretary.’’. 

10 (b) EFFECTIVE DATE.—The amendment made by 

11 subsection (a) shall apply to admissions occurring after 

12 December 31, 2023, or the last day of the emergency pe13 riod described in section 1135(g)(1)(B) of the Social Secu14 rity Act (42 U.S.C. 1320b–5(g)(1)(B)), whichever is soon15 er. 

Æ 


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