C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 409—HOSPITAL INSURANCE BENEFITS › Subpart D—Requirements for Coverage of Posthospital SNF Care

42 C.F.R. § 409.35

Criteria for “practical matter”

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(a) General considerations. In making a “practical matter” determination, as required by § 409.31(b)(3), consideration must be given to the patient's condition and to the availability and feasibility of using more economical alternative facilities and services. However, in making that determination, the availability of Medicare payment for those services may not be a factor. For example, if a beneficiary can obtain daily physical therapy services on an outpatient basis, the unavailability of Medicare payment for those alternative services due to the beneficiary's non-enrollment in Part B may not be a basis for finding that the needed care can only be provided in a SNF.

(b) Examples of circumstances that meet practical matter criteria—(1) Beneficiary's condition. Inpatient care would be required “as a practical matter” if transporting the beneficiary to and from the nearest facility that furnishes the required daily skilled services would be an excessive physical hardship.

(2) Economy and efficiency. Even if the beneficiary's condition does not preclude transportation, inpatient care might be more efficient and less costly if, for instance, the only alternative is daily transportation by ambulance.

[48 FR 12541, Mar. 25, 1983, as amended at 50 FR 33033, Aug. 16, 1985; 85 FR 47632, Aug. 5, 2020]
Notes of Decisions
Cited in 3 cases, 1987–2011 · leading case: Fox v. Bowen, 656 F. Supp. 1236 (D. Conn. 1987).
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Fox v. Bowen, 656 F. Supp. 1236 (D. Conn. 1987). “” 42 C.F.R. § 409.35 (a). In addition, the Secretary contends that any conflict between the plaintiffs’ experts and the intermediaries with respect to the need of a given category of patient for daily skilled physical therapy is nothing more than a “bona fide professional…”
United Healthcare Ins. v. Sebelius, 774 F. Supp. 2d 1014 (D. Minnesota 2011). “42 C.F.R. § 409.35 (a). United made no argument either in its briefs or at oral argument contesting that the g-tube services that Bushnell received on the dates in question could only be performed at an SNF.”
Hoye v. Sebelius, 778 F. Supp. 2d 145 (D. Mass. 2011). · cites it 3× “31 (b)(3) and further described in 42 C.F.R. § 409.35 (which is quoted in rele *149 vant part in the margin).”
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