New York Representatives Introduce Legislation to Save Critical Access Hospitals

Proposed bipartisan legislation would put in place safeguards such as public comment period to ensure that facilities currently operating as Critical Access Hospitals can’t lose their designation overnight.

In an effort to protect rural hospitals, two members of Congress are introducing legislation that will rein in the Centers for Medicaid and Medicare Services.

U.S. Representatives Elise Stefanik (R-N.Y.) and Antonio Delgado (D-N.Y.) joined forces last week to introduce the bi-partisan Protecting Rural Access to Care Act, which would protect rural hospitals with the Critical Access Hospital (CAH) designation.

Rural hospitals designated as Critical Access Hospitals must be 35 miles by primary roads or 15 miles by secondary roads from the nearest other hospital, among other requirements. In exchange for higher rates of reimbursement on Medicare and Medicaid patients, in an effort to keep those hospitals open in rural areas.

For more information, read our explainer.

The legislation is designed to bring certification standards for CAHs back to their 2015 levels and to make them permanent. The legislation will also require the Centers for Medicaid and Medicare Services (CMS) to use public notice and comment periods for any future guidance or regulation changes.

Currently, CMS can make changes to how CAHs are determined just by changing the rules, which it did in 2015. In 2006, a primary road was defined as an interstate highway, a U.S. highway, an expressway, a state-divided highway with two or more lanes each way, or any road with at least two contiguous miles where the speed limit is 45 miles per hour or greater.

In 2015, CMS changed the definition to any numbered Interstate or US route regardless of its terrain, meaning any road designated by I or U.S. would be considered a primary road. According to this definition, U.S. 220, or the Blue Ridge Parkway which runs through the Great Smoky Mountains would be considered a primary road and not a secondary one, and requiring any hospital on it to be 35 miles away from another hospital, instead of 15 miles.

Likewise, in Stefanik’s state, US 4, a two lane road that runs from East Greenbush, New York to Portsmouth, New Hampshire, would be considered a primary road. US 4 runs along the Hudson River to the Hudson Fallan and the Champlain Canal passing through riverside and canalside communities like Mechanicville, New York, population 5,107.

By changing the definition of what constituted a primary road, CMS essentially eliminated some rural hospitals from being CAHs without any warning at all. Typically, federal agencies must let people know that they are considering making changes to a rule, and allow the public time to comment on it before making those changes final.

Currently, in order to qualify as a CAH, a hospital has to be at least 35 miles from the nearest hospital, or have been certified as a necessary healthcare services provider prior to 2006. The new bill would correct the CMS changes made in 2015, and require CMS to let the public know in advance if it were making changes to its rules.

“The bill (Protecting Rural Access to Care) specifies that this (new primary road) guidance does not apply to CAHs that were certified prior to July 31, 2015, and that these CAHs are instead subject to the standards that were in place before the guidance was issued. Ongoing CAH certifications are also subject to pre-guidance standards until the CMS issues new guidance after a specified public comment period,” states the summary of the bill.

The bill would also require CMS rule changes to follow “notice of proposed rulemaking” (NPRM) procedures. Under NPRM, an independent federal agency must issue a public notice if it decides to add, remove or change a rule or regulation. Once that notice is made, the new rule or regulation is open to public comment before being enacted.

“This is an important issue for rural hospitals as this reflects a persistent problem at CMS, that of sub-regulatory guidance,” Brock Slabach, National Rural Health Association’s senior vice president for member services, said via email. “These documents don’t go through a NPRM process. Escaping the rulemaking process, policy can be made without any input or comment from the public.”

This happened in 2015, he said, when CMS made changes in the distance requirements of CAHs, essentially ending their reimbursement status for some hospitals with the stroke of a pen.

Stefanik said she wanted to ensure that didn’t happen again.

“I am proud to introduce the Protecting Rural Access to Care Act, a necessary and permanent solution to protect North Country hospitals and healthcare centers,” Stefanik said in a statement.

“The guidance that was released by CMS in 2015 put rural hospitals and healthcare centers at a dangerous risk of losing their Critical Access Hospital certification and the much-needed benefits that come with it. I was proud to work directly with district hospitals and the previous administration to place a temporary pause on re-certifications during the Covid-19 pandemic. This bill will provide a long-lasting solution.”

Stefanik also introduced the same legislation in August of 2020, where the bill was forwarded to the House Ways and Means Committee where it died.

Administrators with rural hospitals in New York support the bill.  “Critical Access Hospitals have been the cornerstone for providing quality healthcare to rural communities,” said Rich Duvall, Carthage Area Hospital CEO said in a statement.  “Without them, patients would have to travel long distances to receive care. Now more than ever, their importance is significant, especially during the Covid pandemic. The Protecting Rural Access to Care Act ensures the survival of Critical Access Hospitals in New York State and across the nation.”