(a) Basic requirement.

1. (1) The hospital must be the most accessible one available and equipped to furnish the services.
2. (2) CMS determines accessibility based on the factors specified in paragraphs (b) and (c) of this section and the conditions set forth in paragraph (d) of this section.

(b) Factors that are considered. CMS considers the following factors in determining whether a nonparticipating hospital in a rural area meets the accessibility requirements:

1. (1) The relative distances of participating and nonparticipating hospitals in the area.
2. (2) The transportation facilities available to these hospitals.
3. (3) The quality of the roads to each hospital.
4. (4) The availability of beds at each hospital.

5. (5) Any other factors that bear on whether or not the services could be provided sooner in the nonparticipating hospitals than in a participating hospital in the general area.

   In urban and suburban areas where both participating and nonparticipating hospitals are similarly available, CMS presumes that the services could have been provided in a participating hospital unless clear and convincing evidence shows that there was a medical or practical need to use the nonparticipating hospital.

(c) Factors that are not considered. CMS gives no consideration to the following factors in determining whether the nonparticipating hospital was the most accessible hospital:

1. (1) The personal preference of the beneficiary, the physician, or members of the family.
2. (2) The fact that the attending physician did not have staff privileges in a participating hospital which was available and the most accessible to the beneficiary.
3. (3) The location of previous medical records.

(d) Conditions under which the accessibility requirement is met. If a beneficiary must be taken to a hospital immediately for required diagnosis and treatment, the nonparticipating hospital meets the accessibility requirement if—

1. (1) It was the nearest hospital to the point where the emergency occurred, it was medically equipped to handle the type of emergency, and it was the most accessible, on the basis of the factors specified in paragraph (b) of this section; or
2. (2) There was a closer participating hospital equipped to handle the emergency, but the participating hospital did not have a bed available or would not accept the individual.