[Federal Register Volume 67, Number 156 (Tuesday, August 13, 2002)]
[Proposed Rules]
[Pages 52696-52702]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-20307]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Part 13
Implementation of the Equal Access to Justice Act in Agency
Proceedings
AGENCY: Office of the Secretary, HHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule would extend the coverage of the
Department's regulation implementing the Equal Access to Justice Act to
include adversary administrative adjudications commenced after
September 30, 1984. It would also amend the eligibility criteria and
certain other aspects of that regulation to conform with amendments to
the Act. Finally, it would reflect the separation of the Social
Security Administration from HHS, and that component's establishment as
an independent agency in 1995.
DATE: HHS will accept comments on this proposed rule through October
12, 2002. The Office of Management and Budget will accept comments on
the amendments to Secs. 13.10 through 13.12 through the same date.
ADDRESSES: Comments must be in writing. Please send them to: Katherine
M. Drews, Acting Associate General
[[Page 52697]]
Counsel, Business and Administrative Law Division, Room 5362, 330
Independence Ave., SW., Cohen Building, Room 5362, Washington, DC
20201. Please send comments on the amendments to subpart B to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503, Attention: Desk Officer for HHS.
FOR FURTHER INFORMATION CONTACT: Katherine M. Drews, Acting Associate
General Counsel. Telephone: (202) 619-0150.
SUPPLEMENTARY INFORMATION:
Background
The Equal Access to Justice Act (EAJA), enacted in 1980, requires
the Government to pay attorney fees to parties prevailing against it in
litigation where the Government's position is not substantially
justified. The Act applies to certain types of adversary administrative
proceedings and to certain court litigation where attorney fees are not
otherwise available.
The EAJA requires each agency to issue rules implementing the Act
as it applies to administrative proceedings. The current rule of the
Department of Health and Human Services (HHS) was published on October
4, 1983, and is codified at 45 CFR part 13. (All citations below to
section 13 are to sections of 45 CFR part 13.)
The original Act had a sunset provision, causing it to expiring on
September 30, 1984 (although it would continue to cover proceedings
pending on that date). The HHS regulation presently in effect contains
a similar sunset provision. A subsequent statutory change eliminated
the sunset provision, revised the eligibility criteria for parties, and
amended the Act in certain other respects. Public Law No. 99-80, 99
Stat. 183 (1985).
HHS published a Notice of Proposed Rulemaking to revise its EAJA
regulation on June 19, 1987 (52 FR 23311). Pursuant to the notice, we
received only one set of comments, from the Office of the Chairman of
the Administrative Conference of the United States (ACUS), an agency
that no longer exists. Since then, the Social Security Administration,
certain proceedings of which were addressed in the proposed rule,
became an independent agency. See Pub. L. No. 103-296, Sec. 101
(codified at 42 U.S.C. 901). Also since than, the EAJA has been amended
by section 231 of the Contract with America Advancement Act of 1996,
Pub. L. No. 104-121, 110 Stat. 847 (1996). Because of those changes
because substantial time has passed since the initial Notice of
Proposed Rulemaking, we are publishing a new Notice of Proposed
Rulemaking; this notice replaces the earlier notice. We considered the
ACUS comments carefully, and this notice reflects some of those
comments. This notice also reflects the changes effected by Pub. L.
104-121. Since the statutory change, we have been processing fee
applications under the current regulation except to the extent that the
amended statute requires changes.
This proposed rule would amend the existing rule in the following
ways:
1. The Act provided for fee shifting only where the agency's
position was not substantially justified. Pub. L.; 1-4-121 added a
provision of fee shifting where the agency's demand was substantially
in excess of the ultimate decision and was unreasonable when compared
with decision. The proposed regulation would amend section 13.1, and
would revise sections 13.5 and 13.10 (a)(2), to incorporate this new
basis for fee awards. Pub. L. 104-121 also added a new category of
party that would be eligible for a fee award, though only for awards
made based on this excessive and unreasonable demand criterion. The
proposed regulation would amend sections 13.4; 13.10(a)(3), (5); and
13.11(a) to the same effect.
2. The Act included a sunset clause, section 203(c), providing that
the Act would not apply to administrative adjudications initiated after
September 30, 1984. HHS's regulation includes a similar provisions, 45
CFR 13.2. Section 6(b)(1) of Pub. L. 99-80 repealed the sunset
provision in the Act. The proposed regulation would similarly amend
Section 13.2.
3. Section 13.3 generally provides that we have listed the covered
proceedings in the Appendix to the rule. We propose revision this
section to provide for situations involving proceedings not listed in
the Appendix. The new provision would automatically cover proceedings
where the procedural rights are incorporated by reference from certain
statutes that we have already determined invoke the Act. It would also
allow a party in any other administrative proceeding to file an EAJA
application and claim coverage, and have the issue resolved in the
resulting proceeding on the fee application.
4. Section 1(c)(1) of Pub. L. 99-80 increased the net worth
limitations on parties eligible to recover fees under EAJA. It also
added local government units to the categories of eligible entities.
Section 7 of Pub. L. 99-80 makes these expanded eligibility criteria
applicable to proceedings pending on or after August 5, 1985 (the
effective date of that statute), and to proceedings commenced after
September 30, 1984 (the sunset date of the original EAJA), even if
finally disposed of before August 5, 1985. The proposed regulation
would amend Sections 13.3(b) and 13.10(a)(5) to make the same changes
with respect to the same categories of cases. The passage of time has
made it unnecessary to provide explicitly for older cases. However, for
proceedings commenced before October 1, 1984, and finally decided
before August 5, 1985, the older eligibility criteria would govern, as
follows: Individuals with a net worth of not more than $1 million; sole
owners of unincorporated businesses if the owner has a net worth of not
more than $5 million, including both personal and business interests,
and if the business has no more than 500 employees; and all other
partnerships, corporations, associations, or public or private
organizations with a net worth of not more than $5 million and with not
more than 500 employees.
5. Section 1(c)(3) of Pub. L. 99-80 defines the ``position of the
agency'' to include the action or omission that was the basis for the
proceeding, and section 1(a)(1) restricts the analysis of whether that
position was substantially justified to the administrative record. The
proposed regulation would revise sections 13.5(a) and 13.10(a)(2)
likewise, and it would also amend section 13.25(a) to the same end.
6. We no longer take the position that the applicant must have
actually paid (or must have actually become obligated to pay) the
attorney fees and expenses in order to recover those fees and expenses
under EAJA. Accordingly, the proposed regulation would delete the
sentence in section 13.6(a) that stated this position.
7. Pub. L. 104-121 increased the allowable hourly rate for fees
from $75 to $125. The proposed regulation would amend section 13.6(b)
to the same effect.
8. The proposed regulation would amend section 13.12(d) to make
clear that the adjudicative officer may require further substantiation
of fees as well as expenses.
9. The EAJA and the HHS regulation require the prevailing party to
file the fee application within 30 days of the final disposition of the
administrative proceeding. 5 U.S.C. 504(a)(2); 45 CFR 13.22(a). Section
7(b) of Pub. L. 99-80 provides that, in cases commenced after September
30, 1984 (the sunset date of the original EAJA), and finally disposed
of before August 5, 1985 (the effective date of the new law), this 30-
day period runs from the latter date. The proposed
[[Page 52698]]
regulation would amend section 13.22(a) to this effect.
10. Section 1(B) of Pub. L. 99-80 provides that when the Government
appeals the merits of a proceeding, any fee application is stayed until
the appeal is finally resolved, and it specifies that a court decision
is deemed to finally dispose of such an appeal only when that decision
is final and unreviewable. There is a similar, but more inclusive, stay
provision in section 13.22(d). The proposed regulation would amend
sections 13.22(b) and (d) to conform with the statute. The proposed
regulation would also revise section 13.23(a) to make clear that, when
a fee proceeding is stayed in these circumstances, the agency need
answer the fee application only after the final disposition of the
underlying controversy.
11. The proposed rule would revise section 13.27 to designate as
the review authority on fee decisions the same person or component that
would have jurisdiction over an appeal of the merits of the
adjudication. It would eliminate as unnecessary the requirement that
the appellate authority review fee awards where neither party appeals.
It would also revise section 13.27(b) to provide for cross-exceptions
to be filed from an initial decision on a fee application.
12. Appendix A to the regulation lists the HHS proceedings that are
covered by the regulation if the agency's litigating party enters an
appearance and participates. The proposed regulation would revise the
appendix to correct descriptions of categories of proceedings, to
correct statutory citations for categories of proceedings, to add
regulatory citations for categories, and to add new categories of
proceedings that are covered.
13. The legislative history of Pub. L. 99-80 contains several
references to the Social Security Administration Representation
Project, under which SSA representatives participated in certain
disability hearings involving Social Security benefits or Supplemental
Security Income benefits. That project was discontinued in 1987. See 52
FR 17285 (May 7, 1987). We have taken the position that proceedings in
that project were not within the scope of the EAJA as originally
enacted, and thus Appendix A to the current regulation does not list
them. The legislative history of Pub. L. 99-80 evidences the intent of
some members of Congress that the EAJA as revised and amended should
apply to cases in this project. As noted above, the project has been
discontinued, and, in any case, the Social Security Administration is
now an independent agency. However, we have determined that the EAJA
should be applied to other HHS proceedings for which the statutory
entitlement to a hearing rests either on a statute tracking the
language of the provision underlying the disability hearings (section
205(b) of the Social Security Act, 42 U.S.C. 405(b)), or on a statute
incorporating that provision by reference. Thus, the proposed
regulation would add these proceedings to Appendix A.
Economic Impact
We have examined the impacts of this proposed rule as required by
Executive Order 12866 (September 1993, Regulatory Planning and Review),
the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 96-
354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 96-354), the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive
Order 13132 (Federalism).
Executive Order 12866 (the Order) directs agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis must be prepared for major rules with
economically significant affects ($100 million or more in any 1 year).
We have determined that the proposed rule is consistent with the
principles set forth in the Order, and we also find that the proposed
rule would not have economically significant effects. In addition, the
rule is not a major rule as defined at 5 USC 804(2). In accordance with
the provisions of the Order, this regulation was reviewed by the Office
of Management and Budget.
The Secretary certifies that this regulation will not have a
significant economic impact on a substantial number of small entities.
The basis for the Secretary's certification is that, although small
entities are eligible to apply for awards, the regulation will apply
only to a small number of the proceedings held by the Department each
year, and, in many of those proceedings, there will not be any fee
award because the Department's position will be substantially justified
or its demand will be reasonable. Also, most of the changes reflected
in the regulation are mandated by the statue, so it is the statute
rather than the regulation that would have any impact. Finally, the
procedures prescribed by the regulation are no more onerous than those
imposed by the current rule. In sum, the regulation will have
negligible effect on such entities.
The Secretary states, in accordance with section 3(c) of Executive
Order 12988 (Civil Justice Reform), that the Department has reviewed
this regulatory proposal in light of section 3 of that Order and that
the proposal meets the applicable standards in subsections (a) and (b)
of that Order.
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that agencies assess anticipated costs and benefits before issuing any
rule that may result in expenditure in any 1 year by State, local, or
tribal governments, in the aggregate, or by the private sector, of $110
million. As noted above, we find that this proposal would not have an
effect of this magnitude on the economy.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. We have reviewed this proposed rule under the threshold
criteria of Executive order 13132, and we find that there would be no
substantial direct effect on the States, on the relationship between
the States and the national Government, or on the distribution of power
between the levels of government on our federal system. Thus, a
federalism impact statement is not required.
Information Collection
Under the Paperwork Reduction Act of 1995 (PRA), agencies are
required to provide a 60-day notice in the Federal Register and solicit
public comment before a collection of information requirement is
submitted to the Office of Management and Budget (OMB) for review and
approval. Subpart B of the proposed 45 CFR part 13 contains collection
of information requirements. These collection of information
requirements are necessary to carry out the provisions of the EAJA. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the PRA requires that we
solicit comment on the following issues:
--Whether the information collection is necessary and useful to carry
out the proper functions of the agency;
--The accuracy of the agency's estimate of the information collection
burden;
--The quality, utility, and clarity of the information to be collected;
and
--Recommendations to minimize the information collection burden on the
[[Page 52699]]
affected public, including automated collection techniques.
Section 13.10 of the proposed rule contains the requirements for
the application for an award of fees and expenses. The burden
associated with these requirements is the time and effort necessary for
an applicant to prepare and submit the application. On an annual basis
it is estimated that it will take 10 applicants 20 hours each to
prepare and submit an application. The total annual burden associated
with this requirement is 200 hours.
Section 13.11 of the proposed rule contains the requirements for
the submission of the applicant's net worth exhibits. The burden
associated with these requirements is the time and effort necessary for
an applicant to prepare and submit the net worth exhibits. On an annual
basis it is estimated that it will take 10 applicants 10 hours each to
prepare and submit net worth exhibits. The total annual burden
associated with this requirement is 100 hours.
Section 131.12 of the proposed rules contains the requirements for
submission of the applicant's documentation of fees and expenses. The
burden associated with these requirements is the time and effort
necessary for an applicant to prepare and submit the fee and expense
documentation. On an annual basis it is estimated that it will take 10
applicants 5 hours each to prepare and submit fee and expense
documentation. The total annual burden associated with this requirement
is 50 hours.
The Department will submit a copy of this proposed Rule to OMB for
its review of the information collection requirements described above.
These requirements are not effective until they have been approved by
OMB.
If you comment on any of these information collection requirements,
please mail copies directly to the following:
Cynthia Agens Bauer, OS Reports Clearance Officer, Room 503H, Humphrey
Building, 200 Independence Avenue SW., Washington, DC 20201; and
Office of Information and Regulatory Affairs, Office of Management and
Budget, Room 10235, New Executive Office Building, Washington, DC
20503, ATTN: Allison Eydt, HHS Desk Officer.
List of Subjects in 45 CFR Part 13
Administrative practice and procedure, Claims, Equal access to
justice.
For the reasons set out in the preamble, the Secretary proposes to
amend 45 CFR part 13 as follows:
1. The authority citation for part 13 is revised to read as
follows:
Authority: 5 U.S.C. 504(c)(1).
2. In Sec. 13.1, the third sentence is revised to read as follows:
Sec. 13.1 Purpose of these rules.
* * * the Department may reimburse parties for expenses incurred in
adversary adjudications if the party prevails in the proceeding and if
the Department's position in the proceeding was not substantially
justified or if the action is one to enforce compliance with a
statutory or regulatory requirement and the Department's demand is
substantially in excess of the ultimate decision and is unreasonable
when compared with that decision. * * *
3. Section 13.2 is revised to read as follows:
Sec. 13.2 When these rules apply.
These rules apply to adversary adjudications before the Department.
4. Section 13.3 is amended by removing the last sentence in
paragraph (a), by redesignating paragraph (b) as paragraph (c), and by
adding a new paragraph (b) as follows:
Sec. 13.3 Proceedings covered.
* * * * *
(b) If the agency's litigating party enters an appearance,
Department proceedings listed in Appendix A to this part are covered by
these rules. Also covered are any other proceedings under statutes that
incorporate by reference the procedures of sections 1128(f),
1128A(c)(2), or 1842(j)(2) of the Social Security Act, 42 U.S.C. 1320a-
7(f), 1320a-7a(c)(2), or 1395u(j)(2). If a proceeding is not covered
under either of the two previous sentences, a party may file a free
application as otherwise required by this part and may argue that the
act covers the proceeding. Any coverage issue shall be determined by
the adjudicative officer and, if necessary, by the appellate authority
on review.
* * * * *
5. Section 13.4(b) is revised to read as follows:
Sec. 13.4 Eligibility of applicants.
* * * * *
(b) The categories of eligible applicants are as follows:
(1) Charitable or other tax-exempt organizations described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(2) Cooperative associations as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees;
(3) Individuals with a net worth of not more than $2 million;
(4) Sole owners of unincorporated businesses if the owner has a net
worth of not more than $7 million, including both personal and business
interests, and if the business has not more than 500 employees;
(5) All other partnerships, corporations, associations, local
governmental units, and public and private organizations with a net
worth of not more than $7 million and with not more than 500 employees;
and
(6) Where an award is sought on the basis stated in Sec. 13.5(c) of
this part, small entities as defined in 5 U.S.C. 601.
* * * * *
6. Section 13.5 is amended by redesignating paragraphs (a) through
(d) as paragraphs (b)(1) through (b)(4), respectively; adding new
paragraph (a) and a paragraph (b) heading; revising newly designated
paragraph (b)(1); and adding a new paragraph (c) to read as follows:
Sec. 13.5 Standards for awards.
(a) An award of fees and expenses may be made either on the basis
that the Department's position in the proceeding was not substantially
justified or on the basis that, in a proceeding to enforce compliance
with a statutory or regulatory requirement, the Department's demand
substantially exceeded the ultimate decision and was unreasonable when
compared with that decision. These two bases are explained in greater
detail in paragraphs (b) and (c) of this section.
(b) Awards where the Department's position was not substantially
justified. (1) Awards will be made on this basis only where the
Department's position in the proceeding was not substantially
justified. The Department's position includes, in addition to the
position taken by the agency in the proceeding, the agency action or
failure to act that was the basis for the proceeding. Whether the
Department's position was substantially justified is to be determined
on the basis of the administrative record as a whole. The fact that a
party has prevailed in a proceeding does not create a presumption that
the Department's position was not substantially justified. The burden
of proof as to substantial justification is on the agency's litigating
party, which may avoid an award by showing that its position was
reasonable in law and fact.
* * * * *
(c) Awards where the Department's demand was substantially
excessive and
[[Page 52700]]
unreasonable. (1) Awards will be made on this basis only where the
adversary adjudication arises from the Department's action to enforce a
party's compliance with a statutory or regulatory requirement. An award
may be made on this basis only if the Department's demand that led to
the proceeding was substantially in excess of the ultimate decision in
the proceeding, and that demand is unreasonable when compared with that
decision, given all the facts and circumstances of the case.
(2) Any award made on this basis shall be limited to the fees and
expenses that are primarily related to defending against the excessive
nature of the demand. An award shall not include fees and expenses that
are primarily related to defending against the merits of charges, or
fees and expenses that are primarily related to defending against the
portion of the demand that was not excessive, to the extent that these
fees and expenses are distinguishable from the fees and expenses
primarily related to defending against the excessive nature of the
demand.
(3) Awards will be denied if the party has committed a willful
violation of law or otherwise acted in bad faith, or if special
circumstances make an award unjust.
7. In Sec. 13.6, the second sentence of paragraph (a) is removed
and the first sentence of paragraph (b) is amended by removing
``$75.00'' and adding in its place ``$125.00''.
8.-9. In Sec. 13.10, paragraphs (a)(2) and (a)(3) and the first
sentence of paragraph (a)(5) introductory text are revised; paragraph
(a)(5)(i) is amended by removing the word ``or'' at the end and
paragraph (a)(5)(ii) is amended by adding the word ``or'' at the end;
and paragraph (a)(5)(iii) is added to read as follows:
Sec. 13.10 Contents of application.
(a) * * *
(2) Where an award is sought on the basis stated in Sec. 13.5(b) of
this part, a declaration that the applicant believes it has prevailed,
and an identification of the position of the Department that the
applicant alleges was not substantially justified. Where an award is
sought on the basis stated in Sec. 13.5(c) of this part, an
identification of the statutory or regulatory requirement that the
applicant alleges the Department was seeking to enforce, and an
identification of the Department's demand and of the document or
documents containing that demand;
(3) Unless the applicant is an individual, a statement of the
number of its employees on the date on which the proceeding was
initiated, and a brief description of the type and purpose of its
organization or business. However, where an award is sought solely on
the basis stated in Sec. 13.5(c) of this part, the applicant need not
state the number of its employees;
* * * * *
(5) A statement that the applicant's net worth as of the date on
which the proceeding was initiated did not exceed the appropriate
limits as stated in Sec. 13.4(b) of this part. * * *
* * * * *
(iii) It states that it is applying for an award solely on the
basis stated in Sec. 13.5(c) of this part, and that it is a small
entity as defined in 5 U.S.C. 601, and it describes the basis for its
belief that it qualifies as a small entity under that section.
* * * * *
10.-12. Section 13.11(a) is amended by removing the first sentence
and adding in its place the sentences reading as follows:
Sec. 13.11 Net worth exhibits.
(a) Each applicant must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in Sec. 13.4(f) of this part) when the proceeding was
initiated. This requirement does not apply to a qualified tax-exempt
organization or cooperative association. Nor does it apply to a party
that states that it is applying for an award solely on the basis stated
in Sec. 13.5(c) of this part. * * *
* * * * *
13. Section 13.12(d) is revised to read as follows:
Sec. 13.12 Documentation of fees and expenses.
* * * * *
(d) The adjudicative officer may require the applicant to provide
vouchers, receipts, or other substantiation for any fees or expenses
claimed, pursuant to Sec. 13.25 of this part.
14. Section 13.22 is amended by revising paragraphs (b) and (d), as
follows:
Sec. 13.22 When an application may be filed.
* * * * *
(b) For purposes of this rule, final disposition means the date on
which a decision or order disposing of the merits of the proceeding or
any other complete resolution of the proceeding, such as a settlement
or voluntary dismissal, becomes final and unappealable, both within the
agency and to the courts.
* * * * *
(d) If review or reconsideration is sought or taken, whether within
the agency or to the courts, of a decision as to which an applicant
believes it has prevailed, proceedings on the application shall be
stayed pending final disposition of the underlying controversy.
15. In Sec. 13.23(a), the first sentence is removed and two
sentences are added in its place to read as follows:
Sec. 13.23 Responsive pleadings.
(a) The agency's litigating party shall file an answer within 30
calendar days after service of the application or, where the proceeding
is stayed as provided in Sec. 13.22(d) of this part, within 30 calendar
days after the final disposition of the underlying controversy. The
answer shall either consent to the award or explain in detail any
objections to the award requested and identify the facts relied on in
support of the agency's position. * * *
* * * * *
16. Section 13.25(a) is amended by adding the following sentence at
the end:
Sec. 13.25 Further proceedings.
(a) * * * In no such further proceeding shall evidence be
introduced from outside the administrative record in order to prove
that the Department's position was, or was not, substantially
justified.
* * * * *
17. Section 13.27 is revised to read as follows:
Sec. 13.27 Agency review.
(a) The appellate authority for any proceedings shall be the
official or component that would have jurisdiction over an appeal of
the merits.
(b) If either the applicant or the agency's litigating party seeks
review of the adjudicative officer's decision on the fee application,
it shall file and serve exceptions within 30 days after issuance of the
initial decision. Within another 30 days after receipt of such
exceptions, the opposing party, if it has not done so previously, may
file its own exceptions to the adjudicative officer's decision. The
appellate authority shall issue a final decision on the application as
soon as possible or remand the application to the adjudicative officer
for further proceedings. Any party that does not file and serve
exceptions within the stated time limit loses the opportunity to do so.
18. Appendix A to part 13 is revised to read as follows:
Appendix A To Part 13
[[Page 52701]]
------------------------------------------------------------------------
Applicable
Proceedings covered Statutory authority regulations
------------------------------------------------------------------------
Office of Inspector General
------------------------------------------------------------------------
1. Proceedings to impose civil 42 U.S.C. 1320a- 42 CFR Part
monetary penalties, 7a(c)(2); 1320b- 1003; 42 CFR
assessments, or exclusions 10(c); 1395l- Part 1005.
from Medicare and State 3(b)(3)(B)(ii),
health care program. (g)(2)(A)(i);
1395l(h)(5)(D),
(i)(6);
1395m(a)(11)(A),
(a)(18), (b)(5)(C),
(j)(2)(A)(iii);
1395u(j)(2), (k),
(l)(3), (m)(3),
(n)(3), (p)(3)(A);
1395y(b)(3)(C),
(b)(6)(B); 1395cc(g);
1395dd(d)(1)(A), (B);
1395mm(i)(6)(B);
1395nn(g)(3), (4);
1395ss(d);
1395bbb(c)(1);
1396b(m)(5)(B);
1396r(b)(3)(B)(ii),
(g)(2)(A)(i);
1396t(i)(3);
11131(c); 11137(b)(2).
2. Appeals of exclusions from 42 U.S.C. 1320a-7(f); 42 CFR Part
Medicare and State health 13951(h)(5)(D); 1001; 42 CFR
care programs and/or other 1395m(a)(11)(A), Part 1005.
programs under the Social (b)(5)(C);
Security Act. 1395u(j)(2), (k),
(l)(3), (m)(3),
(n)(3), (p)(3)(B).
3. Appeal of exclusions from 42 U.S.C. 1320c- 42 CFR Part
programs under the Social 5(b)(4), (5). 1004; 42 CFR
Security Act, for which Parts 1005.
services may be provided on
the recommendation of a Peer
Review Organization.
4. Proceedings to impose civil 31 U.S.C. 3803........ 45 CFR Part 79.
penalties and assessments for
false claims and statements.
------------------------------------------------------------------------
Centers for Medicare and Medicaid Services
------------------------------------------------------------------------
1. Proceedings to suspend or 42 U.S.C. 263a(i); 42 CFR Part 493,
revoke licenses of clinical 1395w-2. Subpart R.
laboratories.
2. Proceedings provided to a 42 U.S.C. 1395h(e)(1)- 42 CFR 421.114,
fiscal intermediary before (3). 421.128.
assigning or reassigning
Medicare providers to a
different fiscal intermediary.
3. Appeals of determinations 42 U.S.C. 1395cc(h); 42 CFR
that an institution or agency 1395dd(d)(1)(A). 489.53(d); 42
is not a Medicare provider of CFR Part 498.
services, and appeals of
terminations or nonrenewals
of Medicare provider
agreements.
4. Proceedings before the 42 U.S.C. 1395oo...... 42 CFR Part 405,
Provider Reimbursement Review Subpart R.
Board when Department
employees appear as counsel
for the intermediary.
5. Appeals of CMS 42 U.S.C. 1396i....... 42 CFR Part 498.
determinations that an
intermediate care facility
for the mentally retarded
(ICFMR) no longer qualifies
as an ICFMR for Medicaid
purposes.
6. Proceedings to impose civil 42 U.S.C. 1395l- 42 CFR Part
monetary penalties, 3(h)(2)(B)(ii); 13951- 1003.
assessments, or exclusions (q)(2)(B)(i);
from Medicare and State 1395m(a)(11)(A),
health care programs. (c)(4)(C); 1395w-
2(b)(2)(A); 1395w-
4(g)(1), (g)(3)(B),
(g)(4)(B)(ii); 1395nn-
(g)(5); 1395ss-
(a)(2), (p)(8),
(p)(9)(C), (q)(5)(C),
(r)(6)(A), (s)(3),
(t)(2);
1395bbb(f)(2)(A);
1396r(h)(3)(C)(ii);
1396r-8(b)(3)(B),
(C)(ii);
1396t(j)(2)(C);
1396u(h)(2).
7. Appeals of exclusions from 42 U.S.C. 42 CFR Part 498;
Medicare and State health 1395l(q)(2)(B)(ii); 42 CFR
care programs and/or other 1395m(a)(11)(A), 1001.107.
programs under the Social (c)(5)(C); 1395w-
Security Act. 4(g)(1), (g)(3)(B),
(g)(4)(B)(ii).
------------------------------------------------------------------------
Food and Drug Administration
------------------------------------------------------------------------
1. Proceedings to withdraw 21 U.S.C. 355(e)...... 21 CFR Part 12:
approval of new drug 21 CFR 314.200.
applications.
2. Proceedings to withdraw 21 U.S.C. 360b(e), (m) 21 CFR Part 12;
approval of new animal drug 21 CFR Part
applications and medicated 514, Subpart B.
feed applications.
3. Proceedings to withdraw 21 U.S.C. 306e(e), (g) 21 CFR Part 12.
approval of medical device
premarket approval
applications.
------------------------------------------------------------------------
Office for Civil Rights
------------------------------------------------------------------------
1. Proceedings to enforce 42 U.S.C. 2000d-1..... 45 CFR 80.9.
Title VI of the Civil Rights
Act of 1964, which prohibits
discrimination on the basis
of race, color or national
origin by recipients of
Federal financial assistance.
2. Proceedings to enforce 29 U.S.C. 794a; 42 45 CFR 84.61.
section 504 of the U.S.C. 2000d-1.
Rehabilitation Act of 1973,
which prohibits
discrimination on the basis
of handicap by recipients of
Federal financial assistance.
3. Proceedings to enforce the 42 U.S.C. 6104(a)..... 45 CFR 91.47.
Age Discrimination Act of
1975, which prohibits
discrimination on the basis
of age by recipients of
Federal financial assistance.
4. Proceedings to enforce 20 U.S.C. 1682........ 45 CFR 86.71.
Title IX of the Education
Amendments of 1972, which
prohibits discrimination on
the basis of sex in certain
education programs by
recipients of Federal
financial assistance.
------------------------------------------------------------------------
[[Page 52702]]
Dated: May 10, 2002.
Tommy G. Thompson,
Secretary.
[FR Doc. 02-20307 Filed 8-12-02; 8:45 am]
BILLING CODE 4150-26-M