A Texas Federal district court upheld CMS’s distinction between primary and secondary roads connecting hospitals, which is a factor used to determine whether a hospital is a critical access hospital (“CAH”). 

By statute, a CAH must be “located more than a 35-mile drive (or in the case of mountainous terrain or in areas with only secondary roads available, a 15-mile drive) from a hospital.”  42 U.S.C. § 1395i-4(c)(2)(B)(i)(I).  However, neither statute nor regulation defines “primary” or “secondary” roads.

CMS’s State Operations Manual (“SOM”) defined a “primary road” as “(1) a numbered Federal highway; (2) a numbered State highway with two or more lanes in each direction; or (3) a road that is shown as a primary highway divided by a median strip on a map prepared in accord with the U.S. Geological Survey standards.”  Roads that do not qualify as primary are considered secondary.

The Seymour Hospital in Throckmorton Texas, is 31.8 miles from a hospital down a two-lane road with no median strip, passing lanes, or paved shoulders.  The hospital argued that these features classified the highway as a “secondary road” and thus beyond the 15-mile standard necessary to qualify.  However, 28.4 miles of the road is considered a U.S. highway.  Thus, CMS designated the road as a primary route and denied the hospital’s CAH designation in 2013.  The hospital challenged CMS’s determination as arbitrary and against the purpose of the statute.  Had the highway had a State designation rather than Federal, it would have qualified.  The hospital argued CMS’s policy ignored the road’s characteristics in favor of a blanket designation that all Federal highways are primary roads.

The Federal court sided with CMS, agreeing that establishing a bright line rule was reasonable and “advances the goal of uniformity.”  The court concluded that the CMS rule followed the statute’s intention to increase funding only for selected hospitals in rural areas.  The court further noted that CMS applied the rule in a consistent manner.

Reporter, R.J. Cooper, Sacramento, +1 916 321 4809, rcooper@kslaw.com.