42 U.S.C. § 1395s — Medicare rural hospital flexibility program

**(a) Establishment** Any State that submits an application in accordance with subsection (b) may establish a medicare rural hospital flexibility program described in subsection (c). **(b) Application** A State may establish a medicare rural hospital flexibility program described in subsection (c) if the State submits to the Secretary at such time and in such form as the Secretary may require an application containing— (1) assurances that the State— (A) has developed, or is in the process of developing, a State rural health care plan that— (i) provides for the creation of 1 or more rural health networks (as defined in subsection (d)) in the State; (ii) promotes regionalization of rural health services in the State; and (iii) improves access to hospital and other health services for rural residents of the State; and (B) has developed the rural health care plan described in subparagraph (A) in consultation with the hospital association of the State, rural hospitals located in the State, and the State Office of Rural Health (or, in the case of a State in the process of developing such plan, that assures the Secretary that the State will consult with its State hospital association, rural hospitals located in the State, and the State Office of Rural Health in developing such plan); (2) assurances that the State has designated (consistent with the rural health care plan described in paragraph (1)(A)), or is in the process of so designating, rural nonprofit or public hospitals or facilities located in the State as critical access hospitals; and (3) such other information and assurances as the Secretary may require. **(c) Medicare rural hospital flexibility program described** (1) **In general** — A State that has submitted an application in accordance with subsection (b), may establish a medicare rural hospital flexibility program that provides that— (A) the State shall develop at least 1 rural health network (as defined in subsection (d)) in the State; and (B) at least 1 facility in the State shall be designated as a critical access hospital in accordance with paragraph (2). (2) **State designation of facilities** (A) *In general* — A State may designate 1 or more facilities as a critical access hospital in accordance with subparagraphs (B), (C), and (D). (B) *Criteria for designation as critical access hospital* — A State may designate a facility as a critical access hospital if the facility— (i) is a hospital that is located in a county (or equivalent unit of local government) in a rural area (as defined in [section 1395ww(d)(2)(D) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395ww/d/2/D&num=0&edition=prelim)) or is treated as being located in a rural area pursuant to [section 1395ww(d)(8)(E) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395ww/d/8/E&num=0&edition=prelim), and that— (I) is 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, or another facility described in this subsection; or (II) is certified before January 1, 2006, by the State as being a necessary provider of health care services to residents in the area; (ii) makes available 24-hour emergency care services that a State determines are necessary for ensuring access to emergency care services in each area served by a critical access hospital; (iii) provides not more than 25 acute care inpatient beds (meeting such standards as the Secretary may establish) for providing inpatient care for a period that does not exceed, as determined on an annual, average basis, 96 hours per patient; (iv) meets such staffing requirements as would apply under [section 1395x(e) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395x/e&num=0&edition=prelim) to a hospital located in a rural area, except that— (I) the facility need not meet hospital standards relating to the number of hours during a day, or days during a week, in which the facility must be open and fully staffed, except insofar as the facility is required to make available emergency care services as determined under clause (ii) and must have nursing services available on a 24-hour basis, but need not otherwise staff the facility except when an inpatient is present; (II) the facility may provide any services otherwise required to be provided by a full-time, on site dietitian, pharmacist, laboratory technician, medical technologist, and radiological technologist on a part-time, off site basis under arrangements as defined in [section 1395x(w)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395x/w/1&num=0&edition=prelim); and (III) the inpatient care described in clause (iii) may be provided by a physician assistant, nurse practitioner, or clinical nurse specialist subject to the oversight of a physician who need not be present in the facility; and (v) meets the requirements of [section 1395x(aa)(2)(I) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395x/aa/2/I&num=0&edition=prelim). (C) *Recently closed facilities* — A State may designate a facility as a critical access hospital if the facility— (i) was a hospital that ceased operations on or after the date that is 10 years before November 29, 1999; and (ii) as of the effective date of such designation, meets the criteria for designation under subparagraph (B). (D) *Downsized facilities* — A State may designate a health clinic or a health center (as defined by the State) as a critical access hospital if such clinic or center— (i) is licensed by the State as a health clinic or a health center; (ii) was a hospital that was downsized to a health clinic or health center; and (iii) as of the effective date of such designation, meets the criteria for designation under subparagraph (B). (E) *Authority to establish psychiatric and rehabilitation distinct part units* (i) *In general* — Subject to the succeeding provisions of this subparagraph, a critical access hospital may establish— (I) a psychiatric unit of the hospital that is a distinct part of the hospital; and (II) a rehabilitation unit of the hospital that is a distinct part of the hospital, if the distinct part meets the requirements (including conditions of participation) that would otherwise apply to the distinct part if the distinct part were established by a subsection (d) hospital in accordance with the matter following clause (v) 11 See References in Text note below. of [section 1395ww(d)(1)(B) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395ww/d/1/B&num=0&edition=prelim), including any regulations adopted by the Secretary under such section. (ii) *Limitation on number of beds* — The total number of beds that may be established under clause (i) for a distinct part unit may not exceed 10. (iii) *Exclusion of beds from bed count* — In determining the number of beds of a critical access hospital for purposes of applying the bed limitations referred to in subparagraph (B)(iii) and subsection (f), the Secretary shall not take into account any bed established under clause (i). (iv) *Effect of failure to meet requirements* — If a psychiatric or rehabilitation unit established under clause (i) does not meet the requirements described in such clause with respect to a cost reporting period, no payment may be made under this subchapter to the hospital for services furnished in such unit during such period. Payment to the hospital for services furnished in the unit may resume only after the hospital has demonstrated to the Secretary that the unit meets such requirements. **(d) “Rural health network” defined** (1) **In general** — In this section, the term “rural health network” means, with respect to a State, an organization consisting of— (A) at least 1 facility that the State has designated or plans to designate as a critical access hospital; and (B) at least 1 hospital that furnishes acute care services. (2) **Agreements** (A) *In general* — Each critical access hospital that is a member of a rural health network shall have an agreement with respect to each item described in subparagraph (B) with at least 1 hospital that is a member of the network. (B) *Items described* — The items described in this subparagraph are the following: (i) Patient referral and transfer. (ii) The development and use of communications systems including (where feasible)— (I) telemetry systems; and (II) systems for electronic sharing of patient data. (iii) The provision of emergency and non-emergency transportation among the facility and the hospital. (C) *Credentialing and quality assurance* — Each critical access hospital that is a member of a rural health network shall have an agreement with respect to credentialing and quality assurance with at least— (i) 1 hospital that is a member of the network; (ii) 1 peer review organization or equivalent entity; or (iii) 1 other appropriate and qualified entity identified in the State rural health care plan. **(e) Certification by Secretary** The Secretary shall certify a facility as a critical access hospital if the facility— (1) is located in a State that has established a medicare rural hospital flexibility program in accordance with subsection (c); (2) is designated as a critical access hospital by the State in which it is located; and (3) meets such other criteria as the Secretary may require. **(f) Permitting maintenance of swing beds** Nothing in this section shall be construed to prohibit a State from designating or the Secretary from certifying a facility as a critical access hospital solely because, at the time the facility applies to the State for designation as a critical access hospital, there is in effect an agreement between the facility and the Secretary under [section 1395tt of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395tt&num=0&edition=prelim) under which the facility’s inpatient hospital facilities are used for the provision of extended care services, so long as the total number of beds that may be used at any time for the furnishing of either such services or acute care inpatient services does not exceed 25 beds. For purposes of the previous sentence, any bed of a unit of the facility that is licensed as a distinct-part skilled nursing facility at the time the facility applies to the State for designation as a critical access hospital shall not be counted. **(g) Grants** (1) **Medicare rural hospital flexibility program** — The Secretary may award grants to States that have submitted applications in accordance with subsection (b) for— (A) engaging in activities relating to planning and implementing a rural health care plan; (B) engaging in activities relating to planning and implementing rural health networks; (C) designating facilities as critical access hospitals; and (D) providing support for critical access hospitals for quality improvement, quality reporting, performance improvements, and benchmarking. (2) **Rural emergency medical services** (A) *In general* — The Secretary may award grants to States that have submitted applications in accordance with subparagraph (B) for the establishment or expansion of a program for the provision of rural emergency medical services. (B) *Application* — An application is in accordance with this subparagraph if the State submits to the Secretary at such time and in such form as the Secretary may require an application containing the assurances described in subparagraphs (A)(ii), (A)(iii), and (B) of subsection (b)(1) and paragraph (3) of that subsection. (3) **Upgrading data systems** (A) *Grants to hospitals* — The Secretary may award grants to hospitals that have submitted applications in accordance with subparagraph (C) to assist eligible small rural hospitals in meeting the costs of implementing data systems required to meet requirements established under the medicare program pursuant to amendments made by the Balanced Budget Act of 1997 and to assist such hospitals in participating in delivery system reforms under the provisions of and amendments made by the Patient Protection and Affordable Care Act, such as value-based purchasing programs, accountable care organizations under [section 1395jjj of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395jjj&num=0&edition=prelim), the National pilot program on payment bundling under [section 1395cc–4 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395cc-4&num=0&edition=prelim), and other delivery system reform programs determined appropriate by the Secretary. (B) *Eligible small rural hospital defined* — For purposes of this paragraph, the term “eligible small rural hospital” means a non-Federal, short-term general acute care hospital that— (i) is located in a rural area (as defined for purposes of [section 1395ww(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395ww/d&num=0&edition=prelim)); and (ii) has less than 50 beds. (C) *Application* — A hospital seeking a grant under this paragraph shall submit an application to the Secretary on or before such date and in such form and manner as the Secretary specifies. (D) *Amount of grant* — A grant to a hospital under this paragraph may not exceed $50,000. (E) *Use of funds* — A hospital receiving a grant under this paragraph may use the funds for the purchase of computer software and hardware, the education and training of hospital staff on computer information systems, to offset costs related to the implementation of prospective payment systems and to participate in delivery system reforms under the provisions of and amendments made by the Patient Protection and Affordable Care Act, such as value-based purchasing programs, accountable care organizations under [section 1395jjj of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395jjj&num=0&edition=prelim), the National pilot program on payment bundling under [section 1395cc–4 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395cc-4&num=0&edition=prelim), and other delivery system reform programs determined appropriate by the Secretary. (F) *Reports* (i) *Information* — A hospital receiving a grant under this section shall furnish the Secretary with such information as the Secretary may require to evaluate the project for which the grant is made and to ensure that the grant is expended for the purposes for which it is made. (ii) *Timing of submission* (I) *Interim reports* — The Secretary shall report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate at least annually on the grant program established under this section, including in such report information on the number of grants made, the nature of the projects involved, the geographic distribution of grant recipients, and such other matters as the Secretary deems appropriate. (II) *Final report* — The Secretary shall submit a final report to such committees not later than 180 days after the completion of all of the projects for which a grant is made under this section. (4) **Additional requirements with respect to FLEX grants** — With respect to grants awarded under paragraph (1) or (2) from funds appropriated for fiscal year 2005 and subsequent fiscal years— (A) *Consultation with the state hospital association and rural hospitals on the most appropriate ways to use grants* — A State shall consult with the hospital association of such State and rural hospitals located in such State on the most appropriate ways to use the funds under such grant. (B) *Limitation on use of grant funds for administrative expenses* — A State may not expend more than the lesser of— (i) 15 percent of the amount of the grant for administrative expenses; or (ii) the State’s federally negotiated indirect rate for administering the grant. (5) **Use of funds for Federal administrative expenses** — Of the total amount appropriated for grants under paragraphs (1) and (2) for a fiscal year (for each of fiscal years 2005 through 2008) and, of the total amount appropriated for grants under paragraphs (1), (2), and (6) for a fiscal year (beginning with fiscal year 2009), up to 5 percent of such amount shall be available to the Health Resources and Services Administration for purposes of administering such grants. (6) **Providing mental health services and other health services to veterans and other residents of rural areas** (A) *Grants to States* — The Secretary may award grants to States that have submitted applications in accordance with subparagraph (B) for increasing the delivery of mental health services or other health care services deemed necessary to meet the needs of veterans of Operation Iraqi Freedom and Operation Enduring Freedom living in rural areas (as defined for purposes of [section 1395ww(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395ww/d&num=0&edition=prelim) and including areas that are rural census tracks, as defined by the Administrator of the Health Resources and Services Administration), including for the provision of crisis intervention services and the detection of post-traumatic stress disorder, traumatic brain injury, and other signature injuries of veterans of Operation Iraqi Freedom and Operation Enduring Freedom, and for referral of such veterans to medical facilities operated by the Department of Veterans Affairs, and for the delivery of such services to other residents of such rural areas. (B) *Application* (i) *In general* — An application is in accordance with this subparagraph if the State submits to the Secretary at such time and in such form as the Secretary may require an application containing the assurances described in subparagraphs (A)(ii) and (A)(iii) of subsection (b)(1). (ii) *Consideration of regional approaches, networks, or technology* — The Secretary may, as appropriate in awarding grants to States under subparagraph (A), consider whether the application submitted by a State under this subparagraph includes 1 or more proposals that utilize regional approaches, networks, health information technology, telehealth, or telemedicine to deliver services described in subparagraph (A) to individuals described in that subparagraph. For purposes of this clause, a network may, as the Secretary determines appropriate, include Federally qualified health centers (as defined in [section 1395x(aa)(4) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395x/aa/4&num=0&edition=prelim)), rural health clinics (as defined in [section 1395x(aa)(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395x/aa/2&num=0&edition=prelim)), home health agencies (as defined in section 1395x(o) of this title), community mental health centers (as defined in [section 1395x(ff)(3)(B) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395x/ff/3/B&num=0&edition=prelim)) and other providers of mental health services, pharmacists, local government, and other providers deemed necessary to meet the needs of veterans. (iii) *Coordination at local level* — The Secretary shall require, as appropriate, a State to demonstrate consultation with the hospital association of such State, rural hospitals located in such State, providers of mental health services, or other appropriate stakeholders for the provision of services under a grant awarded under this paragraph. (iv) *Special consideration of certain applications* — In awarding grants to States under subparagraph (A), the Secretary shall give special consideration to applications submitted by States in which veterans make up a high percentage (as determined by the Secretary) of the total population of the State. Such consideration shall be given without regard to the number of veterans of Operation Iraqi Freedom and Operation Enduring Freedom living in the areas in which mental health services and other health care services would be delivered under the application. (C) *Coordination with VA* — The Secretary shall, as appropriate, consult with the Director of the Office of Rural Health of the Department of Veterans Affairs in awarding and administering grants to States under subparagraph (A). (D) *Use of funds* — A State awarded a grant under this paragraph may, as appropriate, use the funds to reimburse providers of services described in subparagraph (A) to individuals described in that subparagraph. (E) *Limitation on use of grant funds for administrative expenses* — A State awarded a grant under this paragraph may not expend more than 15 percent of the amount of the grant for administrative expenses. (F) *Independent evaluation and final report* — The Secretary shall provide for an independent evaluation of the grants awarded under subparagraph (A). Not later than 1 year after the date on which the last grant is awarded to a State under such subparagraph, the Secretary shall submit a report to Congress on such evaluation. Such report shall include an assessment of the impact of such grants on increasing the delivery of mental health services and other health services to veterans of the United States Armed Forces living in rural areas (as so defined and including such areas that are rural census tracks), with particular emphasis on the impact of such grants on the delivery of such services to veterans of Operation Enduring Freedom and Operation Iraqi Freedom, and to other individuals living in such rural areas. (7) **Critical access hospitals transitioning to skilled nursing facilities and assisted living facilities** (A) *Grants* — The Secretary may award grants to eligible critical access hospitals that have submitted applications in accordance with subparagraph (B) for assisting such hospitals in the transition to skilled nursing facilities and assisted living facilities. (B) *Application* — An applicable critical access hospital seeking a grant under this paragraph shall submit an application to the Secretary on or before such date and in such form and manner as the Secretary specifies. (C) *Additional requirements* — The Secretary may not award a grant under this paragraph to an eligible critical access hospital unless— (i) local organizations or the State in which the hospital is located provides matching funds; and (ii) the hospital provides assurances that it will surrender critical access hospital status under this subchapter within 180 days of receiving the grant. (D) *Amount of grant* — A grant to an eligible critical access hospital under this paragraph may not exceed $1,000,000. (E) *Funding* — There are appropriated from the Federal Hospital Insurance Trust Fund under [section 1395i of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1395i&num=0&edition=prelim) for making grants under this paragraph, $5,000,000 for fiscal year 2008. (F) *Eligible critical access hospital defined* — For purposes of this paragraph, the term “eligible critical access hospital” means a critical access hospital that has an average daily acute census of less than 0.5 and an average daily swing bed census of greater than 10.0. **(h) Grandfathering provisions** (1) **In general** — Any medical assistance facility operating in Montana and any rural primary care hospital designated by the Secretary under this section prior to August 5, 1997, shall be deemed to have been certified by the Secretary under subsection (e) as a critical access hospital if such facility or hospital is otherwise eligible to be designated by the State as a critical access hospital under subsection (c). (2) **Continuation of medical assistance facility and rural primary care hospital terms** — Notwithstanding any other provision of this subchapter, with respect to any medical assistance facility or rural primary care hospital described in paragraph (1), any reference in this subchapter to a “critical access hospital” shall be deemed to be a reference to a “medical assistance facility” or “rural primary care hospital”. (3) **State authority to waive 35-mile rule** — In the case of a facility that was designated as a critical access hospital before January 1, 2006, and was certified by the State as being a necessary provider of health care services to residents in the area under subsection (c)(2)(B)(i)(II), as in effect before such date, the authority under such subsection with respect to any redesignation of such facility shall continue to apply notwithstanding the amendment made by section 405(h)(1) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. **(i) Waiver of conflicting part A provisions** The Secretary is authorized to waive such provisions of this part and part E as are necessary to conduct the program established under this section. **(j) Authorization of appropriations** There are authorized to be appropriated from the Federal Hospital Insurance Trust Fund for making grants to all States under subsection (g), $25,000,000 in each of the fiscal years 1998 through 2002, for making grants to all States under paragraphs (1) and (2) of subsection (g), $35,000,000 in each of fiscal years 2005 through 2008, for making grants to all States under paragraphs (1) and (2) of subsection (g), $55,000,000 in each of fiscal years 2009 and 2010, for making grants to all States under paragraph (6) of subsection (g), $50,000,000 in each of fiscal years 2009 and 2010, to remain available until expended and for making grants to all States under subsection (g), such sums as may be necessary in each of fiscal years 2011 and 2012, to remain available until expended.