I 
117TH CONGRESS 
2D SESSION 
H. R. 8746 
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 
AUGUST 26, 2022 
Mr. COURTNEY (for himself, Mr. THOMPSON of Pennsylvania, and Mr. 
BUTTERFIELD) 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 rehabilita-
tion therapy program in an inpatient rehabilitation hos-
pital or unit. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Access to Inpatient 
Rehabilitation Therapy Act of 2022’’. 
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.—Congress finds the following: 
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(1) Intensive, coordinated medical rehabilitation 
provided in inpatient rehabilitation hospitals and 
units is critical to Medicare beneficiaries with inju-
ries, illnesses, disabilities, and chronic conditions in 
order to return to health, full function, independent 
living, and a high quality of life. 
(2) The Centers for Medicare & Medicaid Serv-
ices (in this section referred to as ‘‘CMS’’) uses an 
‘‘intensity of therapy’’ requirement to help determine 
which Medicare beneficiaries are appropriate for 
treatment in an inpatient rehabilitation hospital or 
unit. CMS has interpreted the intensity of therapy 
requirement through application of the so-called 
‘‘Three Hour Rule’’ (42 C.F.R. 412.622(a)(3)(ii)) 
which requires the patient to be able to participate 
in three hours of rehabilitation therapy per day, five 
days per week, or 15 hours of rehabilitation therapy 
over a one-week period. 
(3) In 1989, a Federal district court held that 
‘‘Medicare determinations for hospital rehabilitation 
care are to be based upon an assessment of each in-
dividual patient’s need for care’’ and ‘‘denials of ad-
missions, services, and/or Medicare coverage based 
upon 
numerical 
utilization 
screens, 
diagnostic 
screens, diagnosis, specific treatment norms, the 
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‘Three Hour Rule’, or other ‘rules of thumb’ are not 
appropriate.’’ Hooper v. Sullivan, No. H–80–99 (D. 
Conn. 1989). 
(4) Before 2010, a CMS ruling explicitly stated 
that physical therapy, occupational therapy, speech 
therapy, and orthotics and prosthetics were counted 
toward the Three Hour Rule on an as-needed basis. 
In addition, the CMS ruling stated that ‘‘other 
therapeutic modalities’’ that were determined by the 
physician and the rehabilitation team to be needed 
by the patient ‘‘on a priority basis’’ would quality to-
ward satisfaction of the rule (HCFA Ruling 85–2). 
(5) This language allowed physicians with spe-
cialized training and experience in inpatient hospital 
rehabilitation to prescribe the mix of skilled thera-
pies and services appropriate to meet the needs of 
each individual patient in order to satisfy the Three 
Hour Rule in the inpatient rehabilitation hospital or 
unit setting. 
(6) CMS by regulation (74 Fed. Reg. 39811 
(August 7, 2009)) revised these prior requirements, 
effective January 1, 2010. The Secretary of Health 
and Human Services acknowledged that he is bound 
by the court’s decision in Hooper v. Sullivan that 
‘‘rules of thumb’’, including the Three Hour Rule, 
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may not be imposed to deny IRF coverage. The Sec-
retary stated that he would ‘‘monitor the appro-
priateness of instances where IRFs demonstrate the 
required level of intensity’’ without meeting the 
Three Hour Rule. 
(7) The Secretary’s 2010 regulation limited the 
Three Hour Rule to recognize only four skilled serv-
ices (namely, physical therapy, occupational therapy, 
and speech language pathology services as well as 
orthotics and prosthetics) and required that the pa-
tient’s physician must certify that the patient re-
quires, at admission, at least two of the four therapy 
modalities, one of which must be either physical 
therapy or occupational therapy. The Secretary’s 
2010 regulation removed the discretion of the physi-
cian, in consultation with the rehabilitation team, to 
prescribe other skilled modalities and therapeutic 
services needed by the patient that would count to-
ward satisfaction of the Three Hour Rule. As a re-
sult, the full complement of medically necessary, 
skilled therapy services may not be available to inpa-
tient rehabilitation hospital patients as part of their 
plan of care. 
(8) Skilled, therapeutic modalities in addition to 
physical therapy, occupational therapy, speech lan-
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guage pathology services, and orthotic and prosthetic 
services that should be counted toward the Three 
Hour Rule include recreational therapy services, res-
piratory therapy, and other skilled modalities as de-
termined by the Secretary when such skilled services 
are medically necessary and prescribed by a physi-
cian as part of the patient’s plan of care. 
(b) PURPOSE.—The purpose of this Act is to restore 
reliance on the professional judgment of the treating phy-
sician, in consultation with the rehabilitation team, when 
determining whether a Medicare patient meets the inten-
sity of therapy requirement of an inpatient rehabilitation 
hospital or unit in order for that patient to gain access 
to the appropriate mix of medically necessary, rehabilita-
tion services in that setting. This Act retains the current 
requirement that the patient must need at admission phys-
ical therapy, occupational therapy, speech language pa-
thology services, or orthotic and prosthetic services but 
permits the patient’s physician to modify the intensive re-
habilitation therapy program after admission to include 
additional necessary therapy modalities. 
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SEC. 3. PHYSICIAN JUDGEMENT TO DETERMINE THE THER-
APY MODALITIES THAT CONSTITUTE AN IN-
TENSIVE REHABILITATION THERAPY PRO-
GRAM IN DETERMINING THE MEDICAL NE-
CESSITY OF SERVICES IN AN INPATIENT RE-
HABILITATION FACILITY. 
(a) IN GENERAL.—Section 1886(j) of the Social Se-
curity Act (42 U.S.C. 1395ww(j)) is amended by adding 
at the end the following new paragraph: 
‘‘(9) PHYSICIAN
JUDGEMENT
TO
DETERMINE 
THE THERAPY MODALITIES THAT CONSTITUTE AN 
INTENSIVE REHABILITATION THERAPY PROGRAM IN 
A
REHABILITATION
FACILITY.—In the case of a 
claim for payment under the prospective payment 
system under this subsection with respect to a dis-
charge of an individual, in implementing section 
412.622 of title 42, Code of Federal Regulations (or 
any successor to such regulation) for purposes of de-
termining if items and services with respect to such 
discharge are to be considered reasonable and nec-
essary under section 1862(a)(1), the Secretary shall 
provide that an intensive rehabilitation therapy pro-
gram described in paragraph (a)(3)(ii) of such sec-
tion 412.622— 
‘‘(A) shall, at the time of the admission as-
sociated with such discharge, consist of physical 
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therapy, occupational therapy, speech language 
pathology services, or orthotic and prosthetic 
services (or any combination thereof); and 
‘‘(B) may, after such admission, be modi-
fied by the rehabilitation physician treating 
such individual to include other skilled thera-
peutic modalities, including recreational ther-
apy, respiratory therapy, and other skilled serv-
ices specified by the Secretary.’’. 
(b) EFFECTIVE DATE.—The amendment made by 
subsection (a) shall apply to admissions occurring after 
December 31, 2022, or the last day of the emergency pe-
riod described in section 1135(g)(1)(B) of the Social Secu-
rity Act (42 U.S.C. 1320b–5(g)(1)(B)), whichever is soon-
er. 
Æ 
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