42 U.S.C. § 6601 (2024) — Title 42: THE PUBLIC HEALTH AND WELFARE / Chapter 79: SCIENCE AND TECHNOLOGY POLICY, ORGANIZATION AND PRIORITIES / Subchapter I: NATIONAL SCIENCE, ENGINEERING, AND TECHNOLOGY POLICY AND PRIORITIES / Section 6601: Congressional findings; priority goals
Congressional findings; priority goals
Status: in_force

(a) The Congress, recognizing the profound impact of science and technology on society, and the interrelations of scientific, technological, economic, social, political, and institutional factors, hereby finds and declares that—

(1) the general welfare, the security, the economic health and stability of the Nation, the conservation and efficient utilization of its natural and human resources, and the effective functioning of government and society require vigorous, perceptive support and employment of science and technology in achieving national objectives;

(2) the many large and complex scientific and technological factors which increasingly influence the course of national and international events require appropriate provision, involving long-range, inclusive planning as well as more immediate program development, to incorporate scientific and technological knowledge in the national decisionmaking process;

(3) the scientific and technological capabilities of the United States, when properly fostered, applied, and directed, can effectively assist in improving the quality of life, in anticipating and resolving critical and emerging international, national, and local problems, in strengthening the Nation's international economic position, and in furthering its foreign policy objectives;

(4) Federal funding for science and technology represents an investment in the future which is indispensable to sustained national progress and human betterment, and there should be a continuing national investment in science, engineering, and technology which is commensurate with national needs and opportunities and the prevalent economic situation;

(5) the manpower pool of scientists, engineers, and technicians, constitutes an invaluable national resource which should be utilized to the fullest extent possible; and

(6) the Nation's capabilities for technology assessment and for technological planning and policy formulation must be strengthened at both Federal and State levels.

(b) As a consequence, the Congress finds and declares that science and technology should contribute to the following priority goals without being limited thereto:

(1) fostering leadership in the quest for international peace and progress toward human freedom, dignity, and well-being by enlarging the contributions of American scientists and engineers to the knowledge of man and his universe, by making discoveries of basic science widely available at home and abroad, and by utilizing technology in support of United States national and foreign policy goals;

(2) increasing the efficient use of essential materials and products, and generally contributing to economic opportunity, stability, and appropriate growth;

(3) assuring an adequate supply of food, materials, and energy for the Nation's needs;

(4) contributing to the national security;

(5) improving the quality of health care available to all residents of the United States;

(6) preserving, fostering, and restoring a healthful and esthetic natural environment;

(7) providing for the protection of the oceans and coastal zones, and the polar regions, and the efficient utilization of their resources;

(8) strengthening the economy and promoting full employment through useful scientific and technological innovations;

(9) increasing the quality of educational opportunities available to all residents of the United States;

(10) promoting the conservation and efficient utilization of the Nation's natural and human resources;

(11) improving the Nation's housing, transportation, and communication systems, and assuring the provision of effective public services throughout urban, suburban, and rural areas;

(12) eliminating air and water pollution, and unnecessary, unhealthful, or ineffective drugs and food additives; and

(13) advancing the exploration and peaceful uses of outer space.

(Pub. L. 94–282, title I, §101, May 11, 1976, 90 Stat. 459.)

Statutory Notes and Related Subsidiaries

Short Title of 2017 Amendment

Pub. L. 114–329, title VI, §604(a), Jan. 6, 2017, 130 Stat. 3037, provided that: "This section [amending section 6612 of this title] may be cited as the 'United States Chief Technology Officer Act'."

Short Title

Pub. L. 94–282, §1, May 11, 1976, 90 Stat. 459, provided that: "This Act [enacting this chapter, amending section 1863 of this title, repealing sections 1, 2, 3, and 4 of Reorganization Plan Numbered 2 of 1962 (76 Stat. 1253), set out as a note under section 1861 of this title, and section 2 of Reorganization Plan Numbered 1 of 1973 (87 Stat. 1089), set out as a note under section 5195 of this title, and enacting provisions set out as notes under this section and sections 1862 and 6611 of this title] may be cited as the 'National Science and Technology Policy, Organization, and Priorities Act of 1976'."

Pub. L. 94–282, title II, §201, May 11, 1976, 90 Stat. 463, provided that: "This title [enacting subchapter II of this chapter] may be cited as the 'Presidential Science and Technology Advisory Organization Act of 1976'."

Industries of the Future

Pub. L. 116–283, div. H, title XCIV, §9412, Jan. 1, 2021, 134 Stat. 4818, provided that:

"(a) Short Title.—This section may be cited as the 'Industries of the Future Act of 2020'.

"(b) Report on Federal Research and Development Focused on Industries of the Future.—

"(1) In general.—Not later than 120 days after the date of the enactment of this Act [Jan. 1, 2021], the Director of the Office of Science and Technology Policy shall submit to Congress a report on research and development investments, infrastructure, and workforce development investments of the Federal Government that enable continued United States leadership in industries of the future.

"(2) Contents.—The report submitted under paragraph (1) shall include the following:

"(A) A definition, for purposes of this section, of the term 'industries of the future' that includes emerging technologies.

"(B) An assessment of the current baseline of investments in civilian research and development investments of the Federal Government in the industries of the future.

"(C) A plan to double such baseline investments in artificial intelligence and quantum information science by fiscal year 2022.

"(D) A detailed plan to increase investments described in subparagraph (B) in industries of the future to $10,000,000,000 per year by fiscal year 2025.

"(E) A plan to leverage investments described in subparagraphs (B), (C), and (D) in industries of the future to elicit complimentary investments by non-Federal entities, including providing incentives for significant complementary investments by such entities and facilitating public-private partnerships.

"(F) Proposals for the Federal Government, including any necessary draft legislation, to implement such plans.

"(c) Industries of the Future Coordination Council.—

"(1) Establishment.—

"(A) In general.—The President shall establish or designate a council to advise the Director of the Office of Science and Technology Policy on matters relevant to the Director and the industries of the future.

"(B) Designation.—The council established or designated under subparagraph (A) shall be known as the 'Industries of the Future Coordination Council' (in this section the 'Council').

"(2) Membership.—

"(A) Composition.—The Council shall be composed of employees of the Federal Government who shall be appointed as follows:

"(i) One member appointed by the Director.

"(ii) A chairperson of the Select Committee on Artificial Intelligence of the National Science and Technology Council.

"(iii) A chairperson of the Subcommittee on Advanced Manufacturing of the National Science and Technology Council.

"(iv) A chairperson of the Subcommittee on Quantum Information Science of the National Science and Technology Council.

"(v) Such other members as the President considers appropriate.

"(B) Chairperson.—The member appointed to the Council under paragraph (A)(i) shall serve as the chairperson of the Council.

"(3) Duties.—The duties of the Council are as follows:

"(A) To provide the Director with advice on ways in which in [sic] the Federal Government can ensure the United States continues to lead the world in developing emerging technologies that improve the quality of life of the people of the United States, increase economic competitiveness of the United States, and strengthen the national security of the United States, including identification of the following:

"(i) Federal investments required in fundamental research and development, infrastructure, technology transfer, and workforce development of the United States workers who will support the industries of the future.

"(ii) Actions necessary to create and further develop the workforce that will support the industries of the future.

"(iii) Actions required to leverage the strength of the research and development ecosystem of the United States, which includes academia, industry, and nonprofit organizations, to support industries of the future.

"(iv) Ways that the Federal Government can consider leveraging existing partnerships and creating new partnerships and other multisector collaborations to advance the industries of the future.

"(v) Actions required to accelerate the translation of federally funded research and development to practice and meaningful benefits for society while mitigating any risks.

"(B) To provide the Director with advice on matters relevant to the report required under subsection (b).

"(4) Coordination.—The Council shall coordinate with and utilize relevant existing National Science and Technology Council committees to the maximum extent feasible in order to minimize duplication of effort.

"(5) Applicability of faca.—The Federal Advisory Committee Act ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.] shall not apply to the Council established under this subsection.

"(6) Sunset.—The Council shall terminate on the date that is 6 years after the date of the enactment of this Act [Jan. 1, 2021]."

Securing American Science and Technology

Pub. L. 116–92, div. A, title XVII, §1746, Dec. 20, 2019, 133 Stat. 1843, provided that:

"(a) Interagency Working Group.—

"(1) In general.—The Director of the Office of Science and Technology Policy, acting through the National Science and Technology Council, in consultation with the National Security Advisor, shall establish or designate an interagency working group to coordinate activities to protect federally funded research and development from foreign interference, cyber attacks, theft, or espionage and to develop common definitions and best practices for Federal science agencies and grantees, while accounting for the importance of the open exchange of ideas and international talent required for scientific progress and American leadership in science and technology.

"(2) Membership.—

"(A) In general.—The working group shall include at least one representative of—

"(i) the National Science Foundation;

"(ii) the Department of Energy;

"(iii) the National Aeronautics and Space Administration;

"(iv) the Department of Commerce;

"(v) the Department of Health and Human Services;

"(vi) the Department of Defense;

"(vii) the Department of Agriculture;

"(viii) the Department of Education;

"(ix) the Department of State;

"(x) the Department of the Treasury;

"(xi) the Department of Justice;

"(xii) the Department of Homeland Security;

"(xiii) the Central Intelligence Agency;

"(xiv) the Office of the Director of National Intelligence;

"(xv) the Office of Management and Budget;

"(xvi) the National Economic Council; and

"(xvii) such other Federal department or agency as the President considers appropriate.

"(B) Chair.—The working group shall be chaired by the Director of the Office of Science and Technology Policy (or the Director's designee).

"(3) Responsibilities of the working group.—The working group established under paragraph (1) shall—

"(A) identify known and potential cyber, physical, and human intelligence threats and vulnerabilities within the United States scientific and technological enterprise;

"(B) coordinate efforts among agencies to share and update important information, including specific examples of foreign interference, cyber attacks, theft, or espionage directed at federally funded research and development or the integrity of the United States scientific enterprise;

"(C) identify and assess existing mechanisms for protection of federally funded research and development;

"(D) develop an inventory of—

"(i) terms and definitions used across Federal science agencies to delineate areas that may require additional protection; and

"(ii) policies and procedures at Federal science agencies regarding protection of federally funded research; and

"(E) develop and periodically update unclassified recommendations for policy guidance to assist Federal science agencies and grantees in defending against threats to federally funded research and development and the integrity of the United States scientific enterprise that—

"(i) includes—

     "(I) descriptions of known and potential threats to federally funded research and development and the integrity of the United States scientific enterprise;

     "(II) common definitions and terminology for categorization of research and technologies that are protected;

      "(III) identified areas of research or technology that might require additional protection;

     "(IV) recommendations for how control mechanisms can be utilized to protect federally funded research and development from foreign interference, cyber attacks, theft or espionage, including any recommendations for updates to existing control mechanisms;

     "(V) recommendations for best practices for Federal science agencies, universities, and grantees to defend against threats to federally funded research and development, including coordination and harmonization of any relevant reporting requirements that Federal science agencies implement for grantees, and by providing such best practices with grantees and universities at the time of awarding such grants or entering into research contracts;

     "(VI) a remediation plan for grantees and universities to mitigate the risks regarding such threats before research grants or contracts are cancelled because of such threats;

     "(VII) recommendations for providing opportunities and facilities for academic researchers to perform controlled and classified research in support of Federal missions;

     "(VIII) assessments of potential consequences that any proposed practices would have on international collaboration and United States leadership in science and technology; and

     "(IX) a classified addendum as necessary to further inform Federal science agency decisionmaking; and

"(ii) accounts for the range of needs across different sectors of the United States science and technology enterprise.

"(4) Policy guidance.—Not later than 270 days after the date of the enactment of this Act [Dec. 20, 2019], the Director of the Office of Science and Technology Policy, in consultation with the working group established under paragraph (1), shall—

"(A) develop and issue policy guidance to Federal science agencies with more than $100,000,000 in extramural research in fiscal year 2018 to protect against threats to federally funded research and the United States science enterprise, including foreign interference, cyber attacks, theft, or espionage; and

"(B) encourage consistency in the policies developed by Federal science agencies with more than $100,000,000 in extramural research in fiscal year 2018, as appropriate, and factoring in the potential range of applications across different areas of science and technology.

"(5) Coordination with national academies roundtable.—The Director of the Office of Science and Technology Policy shall coordinate with the Academies to ensure that at least one member of the interagency working group is also a member of the roundtable under subsection (b).

"(6) Interim report.—Not later than six months after the date of enactment of this Act, the Director of the Office of Science and Technology Policy shall provide a report to the relevant committees that includes the inventory required under paragraph (3)(D), and an update on progress toward developing the policy guidance required under paragraphs (3)(E) and (4), as well as any additional activities undertaken by the working group in that time.

"(7) Biennial reporting.—Two years after the date of enactment of this Act, and at least every two years thereafter, the Director of the Office of Science and Technology Policy shall provide a summary report to the relevant committees on the activities of the working group and the most current version of the policy guidance required under paragraph (4).

"(8) Termination.—The working group established or designated under paragraph (1) shall terminate on the date that is ten years after the date on which such working group is established or designated.

"(b) National Academies Science, Technology and Security Roundtable.—

"(1) In general.—The National Science Foundation, the Department of Energy, and the Department of Defense, and any other agencies as determined by the Director of the Office of Science and Technology Policy, shall enter into a joint agreement with the Academies to create a new 'National Science, Technology, and Security Roundtable' (hereinafter in this subsection referred to as the 'roundtable').

"(2) Participants.—The roundtable shall include senior representatives and practitioners from Federal science, intelligence, and national security agencies, law enforcement, as well as key stakeholders in the United States scientific enterprise including institutions of higher education, Federal research laboratories, industry, and non-profit research organizations.

"(3) Purpose.—The purpose of the roundtable is to facilitate among participants—

"(A) exploration of critical issues related to protecting United States national and economic security while ensuring the open exchange of ideas and international talent required for scientific progress and American leadership in science and technology;

"(B) identification and consideration of security threats and risks involving federally funded research and development, including foreign interference, cyber attacks, theft, or espionage;

"(C) identification of effective approaches for communicating the threats and risks identified in subparagraph (b) to the academic and scientific community, including through the sharing of unclassified data and relevant case studies;

"(D) sharing of best practices for addressing and mitigating the threats and risks identified in subparagraph (B); and

"(E) examination of potential near- and long-term responses by the Government and the academic and scientific community to mitigate and address the risks associated with foreign threats.

"(4) Report and briefing.—The joint agreement under paragraph (1) shall specify that—

"(A) the roundtable shall periodically organize workshops and issue publicly available reports on the topics described in paragraph (3) and the activities of the roundtable;

"(B) not later than March 1, 2020, the Academies shall provide a briefing to the relevant committees on the progress and activities of the roundtable; and

"(C) the Academies shall issue a final report on its activities to the relevant committees before the end of fiscal year 2024.

"(5) Termination.—The roundtable shall terminate on September 30, 2024.

"(c) Definitions.—In this section:

"(1) The term 'Academies' means the National Academies of Science, Engineering and Medicine.

"(2) The term 'Federal science agency' means any Federal agency with at least $100,000,000 in basic and applied research obligations in fiscal year 2018.

"(3) The term 'grantee' means an entity that is—

"(A) a recipient or subrecipient of a Federal grant or cooperative agreement; and

"(B) an institution of higher education or a non-profit organization.

"(4) The term 'relevant committees' means—

"(A) the Committee on Science, Space, and Technology of the House of Representatives;

"(B) the Committee on Commerce, Science, and Transportation of the Senate;

"(C) the Committee on Armed Services of the House of Representatives;

"(D) the Committee on Armed Services of the Senate; and

"(E) the Committee on Homeland Security and Governmental Affairs of the Senate."

Physical Sciences Coordination

Pub. L. 114–329, title I, §106, Jan. 6, 2017, 130 Stat. 2985, provided that:

"(a) High-energy Physics.—

"(1) In general.—The Physical Science Subcommittee of the National Science and Technology Council (referred to in this section as 'Subcommittee') shall continue to coordinate Federal efforts related to high-energy physics research to maximize the efficiency and effectiveness of United States investment in high-energy physics.

"(2) Purposes.—The purposes of the Subcommittee include—

"(A) to advise and assist the Committee on Science and the National Science and Technology Council on United States policies, procedures, and plans in the physical sciences, including high-energy physics; and

"(B) to identify emerging opportunities, stimulate international cooperation, and foster the development of the physical sciences in the United States, including—

"(i) in high-energy physics research, including related underground science and engineering research;

"(ii) in physical infrastructure and facilities;

"(iii) in information and analysis; and

"(iv) in coordination activities.

"(3) Responsibilities.—In regard to coordinating Federal efforts related to high-energy physics research, the Subcommittee shall, taking into account the findings and recommendations of relevant advisory committees—

"(A) provide recommendations on planning for construction and stewardship of large facilities participating in high-energy physics;

"(B) provide recommendations on research coordination and collaboration among the programs and activities of Federal agencies related to underground science, neutrino research, dark energy, and dark matter research;

"(C) establish goals and priorities for high-energy physics, related underground science, and research and development that will strengthen United States competitiveness in high-energy physics;

"(D) propose methods for engagement with international, Federal, and State agencies and Federal laboratories not represented on the National Science and Technology Council to identify and reduce regulatory, logistical, and fiscal barriers that inhibit United States leadership in high-energy physics and related underground science; and

"(E) develop, and update as necessary, a strategic plan to guide Federal programs and activities in support of high-energy physics research, including—

"(i) the efforts taken in support of paragraph (2) since the last strategic plan;

"(ii) an evaluation of the current research needs for maintaining United States leadership in high-energy physics; and

"(iii) an identification of future priorities in the area of high-energy physics.

"(b) Radiation Biology.—

"(1) In general.—The Subcommittee shall continue to coordinate Federal efforts related to radiation biology research to maximize the efficiency and effectiveness of United States investment in radiation biology.

"(2) Responsibilities for radiation biology.—In regard to coordinating Federal efforts related to radiation biology research, the Subcommittee shall—

"(A) advise and assist the National Science and Technology Council on policies and initiatives in radiation biology, including enhancing scientific knowledge of the effects of low dose radiation on biological systems to improve radiation risk management methods;

"(B) identify opportunities to stimulate international cooperation and leverage research and knowledge from sources outside of the United States;

"(C) ensure coordination between the Department of Energy Office of Science, [National Science] Foundation, National Aeronautics and Space Administration, National Institutes of Health, Environmental Protection Agency, Department of Defense, Nuclear Regulatory Commission, and Department of Homeland Security;

"(D) identify ongoing scientific challenges for understanding the long-term effects of ionizing radiation on biological systems; and

"(E) formulate overall scientific goals for the future of low-dose radiation research in the United States.

"(c) Fusion Energy Sciences.—

"(1) In general.—The Subcommittee shall continue to coordinate Federal efforts related to fusion energy research to maximize the efficiency and effectiveness of United States investment in fusion energy sciences.

"(2) Responsibilities for fusion energy sciences.—In regard to coordinating Federal efforts related to fusion energy sciences, the Subcommittee shall—

"(A) advise and assist the National Science and Technology Council on policies and initiatives in fusion energy sciences, including enhancing scientific knowledge of fusion energy science, plasma physics, and related materials sciences;

"(B) identify opportunities to stimulate international cooperation and leverage research and knowledge from sources outside of the United States, including the ITER project;

"(C) ensure coordination between the Department of Energy Office of Science, National Nuclear Security Administration, Advanced Research Projects Agency-Energy, National Aeronautics and Space Administration, [National Science] Foundation, and Department of Defense regarding fusion energy sciences and plasma physics; and

"(D) formulate overall scientific goals for the future of fusion energy sciences and plasma physics."

Executive Documents

Ex. Ord. No. 12039. Transfer of Certain Science and Technology Policy Functions

Ex. Ord. No. 12039, Feb. 24, 1978, 43 F.R. 8095, as amended by Ex. Ord. No. 12399, Dec. 31, 1982, 48 F.R. 379, provided:

By virtue of the authority vested in me by the Constitution and laws of the United States of America, including Section 7 of Reorganization Plan No. 1 of 1977 (42 FR 56101 (October 21, 1977)) [set out in Appendix of Title 5, Government Organization and Employees], Section 301 of Title 3 of the United States Code, and Section 202 of the Budget and Accounting Procedures Act of 1950 (31 U.S.C. 581c) [31 U.S.C. 1531], and as President of the United States of America, in order to provide for the transfer of certain science and technology functions, it is hereby ordered as follows:

Section 1. (a) The transfer, provided by Section 5A of Reorganization Plan No. 1 of 1977 (42 FR 56101) [set out in Appendix of Title 5, Government Organization and Employees], of certain functions under the National Science and Technology Policy, Organization, and Priorities Act of 1976, hereinafter referred to as the Act (90 Stat. 459, 42 U.S.C. 6601 et seq.), from the Office of Science and Technology Policy and its Director to the Director of the National Science Foundation is hereby effective.

(b) The abolition of the Intergovernmental Science, Engineering, and Technology Advisory Panel, the President's Committee on Science and Technology, and the Federal Coordinating Council for Science, Engineering and Technology (established in accordance with Titles II, III, and IV of the Act) [sections 6611 et seq., 6631 et seq., and 6651 of this title] and the transfer of their functions (Sections 205(b)(1), 303(a) and (b)(1), and 401 of the Act, 42 U.S.C. 6614(b)(1), 6633 (a) and (b)(1), and 6651(e)) to the President of the United States of America, provided by Section 5A of Reorganization Plan No. 1 of 1977 [set out in Appendix of Title 5, Government Organization and Employees], are hereby effective.

Sec. 2. (a) The intergovernmental science, engineering, and technology functions under Section 205(b)(1) of the Act (42 U.S.C. 6614(b)(1)), which were transferred to the President (see Section 1(b) of this Order), are delegated to the Director of the Office of Science and Technology Policy; Except that, the responsibility for fostering any policies to facilitate the transfer and utilization of research and development results is delegated to the Director of the Office of Management and Budget.

(b) The functions vested by subsection (a) of this Section in the Director of the Office of Management and Budget shall be performed in accord with the Director's responsibilities under the Intergovernmental Cooperation Act of 1968 (82 Stat. 1098, 42 U.S.C. 4201 et seq.) [31 U.S.C. 6501 et seq.]. The Director of the Office of Science and Technology Policy shall advise the Director of the Office of Management and Budget with respect to the needs of State, regional, and local governments which may be assisted by the utilization of science, engineering, and technology research and development results.

(c) The functions vested by subsection (a) of this Section in the Director of the Office of Science and Technology Policy shall be performed in coordination with the Director of the Office of Management and Budget and with others as designated by the President.

(d) [Revoked by Ex. Ord. No. 12399, Dec. 31, 1982, 48 F.R. 379.]

Sec. 3. The Federal science, engineering, and technology functions under Section 303 (a) and (b)(1) of the Act (42 U.S.C. 6633 (a) and (b)(1)), which were transferred to the President (see Section 1(b) of this Order), are delegated to the Director of the Office of Science and Technology Policy: Except that, those functions concerned with reorganization, including Federal–State liaison, are delegated to the Director of the Office of Management and Budget, who shall be provided advice and assistance thereon by the Director of the Office of Science and Technology Policy.

Sec. 4. The science, engineering, and technology and related activities functions under Section 401(e) of the Act (42 U.S.C. 6651(e)), which were transferred to the President (see Section 1(b) of this Order), are delegated to the Director of the Office of Science and Technology Policy.

Sec. 5. There is hereby established the Federal Coordinating Council for Science, Engineering, and Technology. The Council shall be composed of the Director of the Office of Science and Technology Policy, who shall be Chairman, and representatives of such other Executive agencies designated by the Chairman. The head of an agency so designated shall designate an appropriate individual to serve on the Council. The Council shall advise and assist the Director of the Office of Science and Technology Policy in the performance of those functions delegated under Section 4 of this Order.

Sec. 6. The records, property, personnel, and unexpended balances of appropriations, available or to be made available, which relate to the functions transferred, reassigned, or redelegated by this Order are hereby transferred to the Director of the Office of Management and Budget, the Director of the Office of Science and Technology Policy, or the Director of the National Science Foundation, as appropriate.

Sec. 7. The Director of the Office of Management and Budget shall make such determinations, issue such orders, and take all actions necessary or appropriate to effectuate the transfers or reassignments provided by this Order, including the transfer of funds, records, property, and personnel.

Sec. 8. This Order shall be effective on February 26, 1978.

Executive Order No. 12700

Ex. Ord. No. 12700, Jan. 19, 1990, 55 F.R. 2219, as amended by Ex. Ord. No. 12768, June 28, 1991, 56 F.R. 30302, which established the President's Council of Advisors on Science and Technology and provided for its functions, administration, and termination on June 30, 1993, was revoked by section 4(c) of Ex. Ord. No. 12882, §4(c), Nov. 23, 1993, 58 F.R. 62493. Ex. Ord. No. 12869, Sept. 30, 1993, §2, 58 F.R. 51751, formerly set out as a note under section 1013 of Title 5, Government Organization and Employees, which reestablished the President's Council of Advisors on Science and Technology in accordance with the provisions of Ex. Ord. No. 12700 and extended its term until Sept. 30, 1995, was also revoked by Ex. Ord. 12882, §4(c).

Ex. Ord. No. 12881. Establishment of National Science and Technology Council

Ex. Ord. No. 12881, Nov. 23, 1993, 58 F.R. 62491; Ex. Ord. No. 13284, §9, Jan. 23, 2003, 68 F.R. 4076, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Establishment. There is established the National Science and Technology Council ("the Council").

Sec. 2. Membership. The Council shall comprise the:

(a) President, who shall serve as Chairman of the Council;

(b) Vice President;

(c) Secretary of Commerce;

(d) Secretary of Defense;

(e) Secretary of Energy;

(f) Secretary of Health and Human Services;

(g) Secretary of State;

(h) Secretary of the Interior;

(i) Secretary of Homeland Security;

(j) Administrator, National Aeronautics and Space Administration;

(k) Director, National Science Foundation;

(l) Director of the Office of Management and Budget;

(m) Administrator, Environmental Protection Agency;

(n) Assistant to the President for Science and Technology;

(o) National Security Adviser;

(p) Assistant to the President for Economic Policy;

(q) Assistant to the President for Domestic Policy; and

(r) Such other officials of executive departments and agencies as the President may, from time to time, designate.

Sec. 3. Meetings of the Council. The President or, upon his direction, the Assistant to the President for Science and Technology ("the Assistant"), may convene meetings of the Council. The President shall preside over the meetings of the Council, provided that in his absence the Vice President, and in his absence the Assistant, will preside.

Sec. 4. Functions. (a) The principal functions of the Council are, to the extent permitted by law: (1) to coordinate the science and technology policy-making process; (2) to ensure science and technology policy decisions and programs are consistent with the President's stated goals; (3) to help integrate the President's science and technology policy agenda across the Federal Government; (4) to ensure science and technology are considered in development and implementation of Federal policies and programs; and (5) to further international cooperation in science and technology. The Assistant may take such actions, including drafting a Charter, as may be necessary or appropriate to implement such functions.

(b) All executive departments and agencies, whether or not represented on the Council, shall coordinate science and technology policy through the Council and shall share information on research and development budget requests with the Council.

(c) The Council shall develop for submission to the Director of the Office of Management and Budget recommendations on research and development budgets that reflect national goals. In addition, the Council shall provide advice to the Director of the Office of Management and Budget concerning the agencies' research and development budget submissions.

(d) The Assistant will, when appropriate, work in conjunction with the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, the Director of the Office of Management and Budget, and the National Security Adviser.

Sec. 5. Administration. (a) The Council will oversee the duties of the Federal Coordinating Council for Science, Engineering, and Technology, the National Space Council, and the National Critical Materials Council.

(b) The Council may function through established or ad hoc committees, task forces, or interagency groups.

(c) To the extent practicable and permitted by law, executive departments and agencies shall make resources, including, but not limited to, personnel, office support, and printing, available to the Council as requested by the Assistant.

(d) All executive departments and agencies shall cooperate with the Council and provide such assistance, information, and advice to the Council as the Council may request, to the extent permitted by law.

Executive Order No. 12882

Ex. Ord. No. 12882, Nov. 23, 1993, 58 F.R. 62493, as amended by Ex. Ord. No. 12907, Apr. 14, 1994, 59 F.R. 18291, which established the President's Committee of Advisors on Science and Technology, was revoked by Ex. Ord. No. 13226, §4(c), Sept. 30, 2001, 66 F.R. 50524, formerly set out below.

Executive Order No. 12975

Ex. Ord. No. 12975, Oct. 3, 1995, 60 F.R. 52063, as amended by Ex. Ord. No. 13018, Sept. 16, 1996, 61 F.R. 49045; Ex. Ord. No. 13046, May 16, 1997, 62 F.R. 27685; Ex. Ord. No. 13137, Sept. 15, 1999, 64 F.R. 50733, which provided for the protection of human research subjects and created the National Bioethics Advisory Commission, was revoked by Ex. Ord. No. 13316, §3(b), Sept. 17, 2003, 68 F.R. 55256, eff. Sept. 30, 2003.

Executive Order No. 13226

Ex. Ord. No. 13226, Sept. 30, 2001, 66 F.R. 50523, as amended by Ex. Ord. No. 13305, May 28, 2003, 68 F.R. 32323; Ex. Ord. No. 13349, July 23, 2004, 69 F.R. 44891; Ex. Ord. No. 13385, §8, Sept. 29, 2005, 70 F.R. 57991, which established the President's Council of Advisors on Science and Technology, was revoked by Ex. Ord. No. 13539, §6, Apr. 21, 2010, 75 F.R. 21975, formerly set out below.

Extension of Term of President's Council of Advisors on Science and Technology

Term of President's Council of Advisors on Science and Technology extended until Sept. 30, 2011, by Ex. Ord. No. 13511, Sept. 29, 2009, 74 F.R. 50909, formerly set out as a note under section 1013 of Title 5, Government Organization and Employees.

Previous extensions of term of President's Council of Advisors on Science and Technology were contained in the following prior Executive Orders:

Ex. Ord. No. 13446, Sept. 28, 2007, 72 F.R. 56175, extended term until Sept. 30, 2009.

Ex. Ord. No. 13385, Sept. 29, 2005, 70 F.R. 57989, extended term until Sept. 30, 2007.

Executive Order No. 13237

Ex. Ord. No. 13237, Nov. 28, 2001, 66 F.R. 59851, which created the President's Council on Bioethics, was superseded by Ex. Ord. No. 13521, §6(a), Nov. 24, 2009, 74 F.R. 62672, set out below.

Extension of Term of President's Council on Bioethics

Term of President's Council on Bioethics extended until Sept. 30, 2009, by Ex. Ord. No. 13446, Sept. 28, 2007, 72 F.R. 56175, formerly set out as a note under section 1013 of Title 5, Government Organization and Employees.

Previous extensions of term of President's Council on Bioethics were contained in the following prior Executive Orders:

Ex. Ord. No. 13385, Sept. 29, 2005, 70 F.R. 57989, extended term until Sept. 30, 2007.

Ex. Ord. No. 13316, Sept. 17, 2003, 68 F.R. 55255, extended term until Sept. 30, 2005.

Ex. Ord. No. 13521. Establishing the Presidential Commission for the Study of Bioethical Issues

Ex. Ord. No. 13521, Nov. 24, 2009, 74 F.R. 62671, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Establishment. There is established within the Department of Health and Human Services the Presidential Commission for the Study of Bioethical Issues (Commission).

Sec. 2. Mission.

(a) The Commission shall advise the President on bioethical issues that may emerge as a consequence of advances in biomedicine and related areas of science and technology. The Commission shall pursue its work with the goal of identifying and promoting policies and practices that ensure scientific research, healthcare delivery, and technological innovation are conducted in an ethically responsible manner. To achieve this goal, the Commission shall:

(i) identify and examine specific bioethical, legal, and social issues related to the potential impacts of advances in biomedical and behavioral research, healthcare delivery, or other areas of science and technology;

(ii) recommend any legal, regulatory, or policy actions it deems appropriate to address these issues; and

(iii) critically examine diverse perspectives and explore possibilities for useful international collaboration on these issues.

(b) In support of its mission, the Commission may examine issues linked to specific technologies, including but not limited to the creation of stem cells by novel means; intellectual property issues involving genetic sequencing, biomarkers, and other screening tests used for risk assessment; and the application of neuro- and robotic sciences. It may also examine broader issues not linked to specific technologies, including but not limited to the protection of human research participants; scientific integrity and conflicts of interest in research; and the intersection of science and human rights.

(c) The Commission shall not be responsible for the review and approval of specific projects.

(d) The Commission may accept suggestions of issues for consideration from executive departments and agencies and the public as it deems appropriate in support of its mission.

(e) In establishing priorities for its activities, the Commission shall consider, among other things, the significance of particular issues; the need for legal, regulatory, and policy guidance with respect to such issues; the connection of the issues to the goal of Federal advancement of science and technology; and the availability of other appropriate entities or fora for deliberating on the issues.

(f) The Commission is authorized to conduct original empirical and conceptual research, commission papers and studies, hold hearings, and establish committees and subcommittees, as necessary. The Commission is authorized to develop reports or other materials.

Sec. 3. Membership.

(a) The Commission shall be an expert panel composed of not more than 13 members appointed by the President, drawn from the fields of bioethics, science, medicine, technology, engineering, law, philosophy, theology, or other areas of the humanities or social sciences, at least one and not more than three of whom may be bioethicists or scientists drawn from the executive branch, as designated by the President.

(b) The President shall designate a Chair and Vice Chair from among the members of the Commission. The Chair shall convene and preside at meetings of the Commission, determine its agenda, and direct its work. The Vice Chair shall perform the duties of the Chair in the absence or disability of the Chair and shall perform such other functions as the Chair may from time to time assign.

(c) Members shall serve for a term of 2 years and shall be eligible for reappointment. Members may continue to serve after the expiration of their terms until the appointment of a successor.

Sec. 4. Administration.

(a) The Department of Health and Human Services shall provide funding and administrative support for the Commission to the extent permitted by law and within existing appropriations.

(b) All executive departments and agencies and all entities within the Executive Office of the President shall provide information and assistance to the Commission as the Chair may request for purposes of carrying out the Commission's functions, to the extent permitted by law.

(c) The Commission shall have a staff headed by an Executive Director, who shall be appointed by the Secretary of Health and Human Services in consultation with the Chair and Vice Chair.

(d) Members of the Commission shall serve without compensation, but shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701–5707), consistent with the availability of funds.

Sec. 5. Termination. The Commission shall terminate 2 years after the date of this order unless extended by the President.

Sec. 6. General Provisions.

(a) This order supersedes Executive Order 13237 of November 28, 2001.

(b) Insofar as the Federal Advisory Committee Act, as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], may apply to the Commission, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Secretary of Health and Human Services in accordance with the guidelines that have been issued by the Administrator of General Services.

(c) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(d) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(e) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Barack Obama.      

Extension of Term of Presidential Commission for the Study of Bioethical Issues

Term of Presidential Commission for the Study of Bioethical Issues extended until Sept. 30, 2017, by Ex. Ord. No. 13708, Sept. 30, 2015, 80 F.R. 60271, formerly set out as a note under section 1013 of Title 5, Government Organization and Employees.

Previous extensions of term of Presidential Commission for the Study of Bioethical Issues were contained in the following prior Executive Orders:

Ex. Ord. No. 13652, Sept. 30, 2013, 78 F.R. 61817, extended term until Sept. 30, 2015.

Ex. Ord. No. 13591, Nov. 23, 2011, 76 F.R. 74623, extended term until Sept. 30, 2013.

Executive Order No. 13539

Ex. Ord. No. 13539, Apr. 21, 2010, 75 F.R. 21973, as amended by Ex. Ord. No. 13596, §2, Dec. 19, 2011, 76 F.R. 80725, which established the President's Council of Advisors on Science and Technology, was revoked by Ex. Ord. No. 13895, §7, Oct. 22, 2019, 84 F.R. 57311, formerly set out below.

Extension of Term of President's Council of Advisors on Science and Technology

Term of President's Council of Advisors on Science and Technology (established by Ex. Ord. No. 13539) extended until Sept. 30, 2021, by Ex. Ord. No. 13889, Sept. 27, 2019, 84 F.R. 52743, formerly set out as a note under section 1013 of Title 5, Government Organization and Employees.

Previous extensions of term of President's Council of Advisors on Science and Technology were contained in the following prior Executive Orders:

Ex. Ord. No. 13811, Sept. 29, 2017, 82 F.R. 46363, extended term until Sept. 30, 2019.

Ex. Ord. No. 13708, Sept. 30, 2015, 80 F.R. 60271, extended term until Sept. 30, 2017.

Ex. Ord. No. 13652, Sept. 30, 2013, 78 F.R. 61817, extended term until Sept. 30, 2015.

Ex. Ord. No. 13591, Nov. 23, 2011, 76 F.R. 74623, extended term until Sept. 30, 2013.

Ex. Ord. No. 13859. Maintaining American Leadership in Artificial Intelligence

Ex. Ord. No. 13859, Feb. 11, 2019, 84 F.R. 3967, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy and Principles. Artificial Intelligence (AI) promises to drive growth of the United States economy, enhance our economic and national security, and improve our quality of life. The United States is the world leader in AI research and development (R&D) and deployment. Continued American leadership in AI is of paramount importance to maintaining the economic and national security of the United States and to shaping the global evolution of AI in a manner consistent with our Nation's values, policies, and priorities. The Federal Government plays an important role in facilitating AI R&D, promoting the trust of the American people in the development and deployment of AI-related technologies, training a workforce capable of using AI in their occupations, and protecting the American AI technology base from attempted acquisition by strategic competitors and adversarial nations. Maintaining American leadership in AI requires a concerted effort to promote advancements in technology and innovation, while protecting American technology, economic and national security, civil liberties, privacy, and American values and enhancing international and industry collaboration with foreign partners and allies. It is the policy of the United States Government to sustain and enhance the scientific, technological, and economic leadership position of the United States in AI R&D and deployment through a coordinated Federal Government strategy, the American AI Initiative (Initiative), guided by five principles:

(a) The United States must drive technological breakthroughs in AI across the Federal Government, industry, and academia in order to promote scientific discovery, economic competitiveness, and national security.

(b) The United States must drive development of appropriate technical standards and reduce barriers to the safe testing and deployment of AI technologies in order to enable the creation of new AI-related industries and the adoption of AI by today's industries.

(c) The United States must train current and future generations of American workers with the skills to develop and apply AI technologies to prepare them for today's economy and jobs of the future.

(d) The United States must foster public trust and confidence in AI technologies and protect civil liberties, privacy, and American values in their application in order to fully realize the potential of AI technologies for the American people.

(e) The United States must promote an international environment that supports American AI research and innovation and opens markets for American AI industries, while protecting our technological advantage in AI and protecting our critical AI technologies from acquisition by strategic competitors and adversarial nations.

Sec. 2. Objectives. Artificial Intelligence will affect the missions of nearly all executive departments and agencies (agencies). Agencies determined to be implementing agencies pursuant to section 3 of this order shall pursue six strategic objectives in furtherance of both promoting and protecting American advancements in AI:

(a) Promote sustained investment in AI R&D in collaboration with industry, academia, international partners and allies, and other non-Federal entities to generate technological breakthroughs in AI and related technologies and to rapidly transition those breakthroughs into capabilities that contribute to our economic and national security.

(b) Enhance access to high-quality and fully traceable Federal data, models, and computing resources to increase the value of such resources for AI R&D, while maintaining safety, security, privacy, and confidentiality protections consistent with applicable laws and policies.

(c) Reduce barriers to the use of AI technologies to promote their innovative application while protecting American technology, economic and national security, civil liberties, privacy, and values.

(d) Ensure that technical standards minimize vulnerability to attacks from malicious actors and reflect Federal priorities for innovation, public trust, and public confidence in systems that use AI technologies; and develop international standards to promote and protect those priorities.

(e) Train the next generation of American AI researchers and users through apprenticeships; skills programs; and education in science, technology, engineering, and mathematics (STEM), with an emphasis on computer science, to ensure that American workers, including Federal workers, are capable of taking full advantage of the opportunities of AI.

(f) Develop and implement an action plan, in accordance with the National Security Presidential Memorandum of February 11, 2019 (Protecting the United States Advantage in Artificial Intelligence and Related Critical Technologies) (the NSPM) to protect the advantage of the United States in AI and technology critical to United States economic and national security interests against strategic competitors and foreign adversaries.

Sec. 3. Roles and Responsibilities. The Initiative shall be coordinated through the National Science and Technology Council (NSTC) Select Committee on Artificial Intelligence (Select Committee). Actions shall be implemented by agencies that conduct foundational AI R&D, develop and deploy applications of AI technologies, provide educational grants, and regulate and provide guidance for applications of AI technologies, as determined by the co-chairs of the NSTC Select Committee (implementing agencies).

Sec. 4. Federal Investment in AI Research and Development.

(a) Heads of implementing agencies that also perform or fund R&D (AI R&D agencies), shall consider AI as an agency R&D priority, as appropriate to their respective agencies' missions, consistent with applicable law and in accordance with the Office of Management and Budget (OMB) and the Office of Science and Technology Policy (OSTP) R&D priorities memoranda. Heads of such agencies shall take this priority into account when developing budget proposals and planning for the use of funds in Fiscal Year 2020 and in future years. Heads of these agencies shall also consider appropriate administrative actions to increase focus on AI for 2019.

(b) Heads of AI R&D agencies shall budget an amount for AI R&D that is appropriate for this prioritization.

(i) Following the submission of the President's Budget request to the Congress, heads of such agencies shall communicate plans for achieving this prioritization to the OMB Director and the OSTP Director each fiscal year through the Networking and Information Technology Research and Development (NITRD) Program.

(ii) Within 90 days of the enactment of appropriations for their respective agencies, heads of such agencies shall identify each year, consistent with applicable law, the programs to which the AI R&D priority will apply and estimate the total amount of such funds that will be spent on each such program. This information shall be communicated to the OMB Director and OSTP Director each fiscal year through the NITRD Program.

(c) To the extent appropriate and consistent with applicable law, heads of AI R&D agencies shall explore opportunities for collaboration with non-Federal entities, including: the private sector; academia; non-profit organizations; State, local, tribal, and territorial governments; and foreign partners and allies, so all collaborators can benefit from each other's investment and expertise in AI R&D.

Sec. 5. Data and Computing Resources for AI Research and Development.

(a) Heads of all agencies shall review their Federal data and models to identify opportunities to increase access and use by the greater non-Federal AI research community in a manner that benefits that community, while protecting safety, security, privacy, and confidentiality. Specifically, agencies shall improve data and model inventory documentation to enable discovery and usability, and shall prioritize improvements to access and quality of AI data and models based on the AI research community's user feedback.

(i) Within 90 days of the date of this order [Feb. 11, 2019], the OMB Director shall publish a notice in the Federal Register inviting the public to identify additional requests for access or quality improvements for Federal data and models that would improve AI R&D and testing. Additionally, within 90 days of the date of this order, OMB, in conjunction with the Select Committee, shall investigate barriers to access or quality limitations of Federal data and models that impede AI R&D and testing. Collectively, these actions by OMB will help to identify datasets that will facilitate non-Federal AI R&D and testing.

(ii) Within 120 days of the date of this order, OMB, including through its interagency councils and the Select Committee, shall update implementation guidance for Enterprise Data Inventories and Source Code Inventories to support discovery and usability in AI R&D.

(iii) Within 180 days of the date of this order, and in accordance with the implementation of the Cross-Agency Priority Goal: Leveraging Federal Data as a Strategic Asset, from the March 2018 President's Management Agenda, agencies shall consider methods of improving the quality, usability, and appropriate access to priority data identified by the AI research community. Agencies shall also identify any associated resource implications.

(iv) In identifying data and models for consideration for increased public access, agencies, in coordination with the Senior Agency Officials for Privacy established pursuant to Executive Order 13719 of February 9, 2016 (Establishment of the Federal Privacy Council) [42 U.S.C. 2000ee–2 note], the heads of Federal statistical entities, Federal program managers, and other relevant personnel shall identify any barriers to, or requirements associated with, increased access to and use of such data and models, including:

(A) privacy and civil liberty protections for individuals who may be affected by increased access and use, as well as confidentiality protections for individuals and other data providers;

(B) safety and security concerns, including those related to the association or compilation of data and models;

(C) data documentation and formatting, including the need for interoperable and machine-readable data formats;

(D) changes necessary to ensure appropriate data and system governance; and

(E) any other relevant considerations.

(v) In accordance with the President's Management Agenda and the Cross-Agency Priority Goal: Leveraging Data as a Strategic Asset, agencies shall identify opportunities to use new technologies and best practices to increase access to and usability of open data and models, and explore appropriate controls on access to sensitive or restricted data and models, consistent with applicable laws and policies, privacy and confidentiality protections, and civil liberty protections.

(b) The Secretaries of Defense, Commerce, Health and Human Services, and Energy, the Administrator of the National Aeronautics and Space Administration, and the Director of the National Science Foundation shall, to the extent appropriate and consistent with applicable law, prioritize the allocation of high-performance computing resources for AI-related applications through:

(i) increased assignment of discretionary allocation of resources and resource reserves; or

(ii) any other appropriate mechanisms.

(c) Within 180 days of the date of this order, the Select Committee, in coordination with the General Services Administration (GSA), shall submit a report to the President making recommendations on better enabling the use of cloud computing resources for federally funded AI R&D.

(d) The Select Committee shall provide technical expertise to the American Technology Council on matters regarding AI and the modernization of Federal technology, data, and the delivery of digital services, as appropriate.

Sec. 6. Guidance for Regulation of AI Applications.

(a) Within 180 days of the date of this order, the OMB Director, in coordination with the OSTP Director, the Director of the Domestic Policy Council, and the Director of the National Economic Council, and in consultation with any other relevant agencies and key stakeholders as the OMB Director shall determine, shall issue a memorandum to the heads of all agencies that shall:

(i) inform the development of regulatory and non-regulatory approaches by such agencies regarding technologies and industrial sectors that are either empowered or enabled by AI, and that advance American innovation while upholding civil liberties, privacy, and American values; and

(ii) consider ways to reduce barriers to the use of AI technologies in order to promote their innovative application while protecting civil liberties, privacy, American values, and United States economic and national security.

(b) To help ensure public trust in the development and implementation of AI applications, OMB shall issue a draft version of the memorandum for public comment before it is finalized.

(c) Within 180 days of the date of the memorandum described in subsection (a) of this section, the heads of implementing agencies that also have regulatory authorities shall review their authorities relevant to applications of AI and shall submit to OMB plans to achieve consistency with the memorandum.

(d) Within 180 days of the date of this order, the Secretary of Commerce, through the Director of the National Institute of Standards and Technology (NIST), shall issue a plan for Federal engagement in the development of technical standards and related tools in support of reliable, robust, and trustworthy systems that use AI technologies. NIST shall lead the development of this plan with participation from relevant agencies as the Secretary of Commerce shall determine.

(i) Consistent with OMB Circular A–119, this plan shall include:

(A) Federal priority needs for standardization of AI systems development and deployment;

(B) identification of standards development entities in which Federal agencies should seek membership with the goal of establishing or supporting United States technical leadership roles; and

(C) opportunities for and challenges to United States leadership in standardization related to AI technologies.

(ii) This plan shall be developed in consultation with the Select Committee, as needed, and in consultation with the private sector, academia, non-governmental entities, and other stakeholders, as appropriate.

Sec. 7. AI and the American Workforce.

(a) Heads of implementing agencies that also provide educational grants shall, to the extent consistent with applicable law, consider AI as a priority area within existing Federal fellowship and service programs.

(i) Eligible programs for prioritization shall give preference to American citizens, to the extent permitted by law, and shall include:

(A) high school, undergraduate, and graduate fellowship; alternative education; and training programs;

(B) programs to recognize and fund early-career university faculty who conduct AI R&D, including through Presidential awards and recognitions;

(C) scholarship for service programs;

(D) direct commissioning programs of the United States Armed Forces; and

(E) programs that support the development of instructional programs and curricula that encourage the integration of AI technologies into courses in order to facilitate personalized and adaptive learning experiences for formal and informal education and training.

(ii) Agencies shall annually communicate plans for achieving this prioritization to the co-chairs of the Select Committee.

(b) Within 90 days of the date of this order, the Select Committee shall provide recommendations to the NSTC Committee on STEM Education regarding AI-related educational and workforce development considerations that focus on American citizens.

(c) The Select Committee shall provide technical expertise to the National Council for the American Worker on matters regarding AI and the American workforce, as appropriate.

Sec. 8. Action Plan for Protection of the United States Advantage in AI Technologies.

(a) As directed by the NSPM, the Assistant to the President for National Security Affairs, in coordination with the OSTP Director and the recipients of the NSPM, shall organize the development of an action plan to protect the United States advantage in AI and AI technology critical to United States economic and national security interests against strategic competitors and adversarial nations.

(b) The action plan shall be provided to the President within 120 days of the date of this order, and may be classified in full or in part, as appropriate.

(c) Upon approval by the President, the action plan shall be implemented by all agencies who are recipients of the NSPM, for all AI-related activities, including those conducted pursuant to this order.

Sec. 9. Definitions. As used in this order:

(a) the term "artificial intelligence" means the full extent of Federal investments in AI, to include: R&D of core AI techniques and technologies; AI prototype systems; application and adaptation of AI techniques; architectural and systems support for AI; and cyberinfrastructure, data sets, and standards for AI; and

(b) the term "open data" shall, in accordance with OMB Circular A–130 and memorandum M–13–13, mean "publicly available data structured in a way that enables the data to be fully discoverable and usable by end users."

Sec. 10. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Executive Order No. 13895

Ex. Ord. No. 13895, Oct. 22, 2019, 84 F.R. 57309, which established the President's Council of Advisors on Science and Technology, was revoked by Ex. Ord. No. 14007, §6, Jan. 27, 2021, 86 F.R. 7616, set out below.

Ex. Ord. No. 14007. President's Council of Advisors on Science and Technology

Ex. Ord. No. 14007, Jan. 27, 2021, 86 F.R. 7615, as amended by Ex. Ord. No. 14044, Sept. 13, 2021, 86 F.R. 51579, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish an advisory council on science, technology, and innovation, it is hereby ordered as follows:

Section 1. Policy. As directed in the Presidential Memorandum of January 27, 2021 (Scientific Integrity and Evidence-Based Policymaking) [set out below], it is the policy of my Administration to make evidence-based decisions guided by the best available science and data. Officials and employees across my Administration shall seek from scientists, engineers, and other experts the best available scientific and technological information and advice.

Sec. 2. Establishment. (a) There is hereby established the President's Council of Advisors on Science and Technology (PCAST).

(b) The PCAST shall be composed of not more than 32 members. The Assistant to the President for Science and Technology (the "Science Advisor") shall be a member of the PCAST. The Science Advisor, if also serving as the Director of the Office of Science and Technology Policy, may designate the U.S. Chief Technology Officer as a member. The remaining members shall be distinguished individuals and representatives from sectors outside of the Federal Government appointed by the President. These non-Federal members shall have diverse perspectives and expertise in science, technology, and innovation.

(c) The Science Advisor shall serve as a Co-Chair of the PCAST. The President shall also designate at least one, but not more than two, of the non-Federal members to serve as a Co-Chair, or Co-Chairs, of the PCAST with the Science Advisor. The Science Advisor may designate up to three Vice Chairs of the PCAST from among the non-Federal members of the PCAST, to support the Co-Chairs in the leadership and organization of the PCAST.

Sec. 3. Functions. (a) The PCAST shall advise the President on matters involving policy affecting science, technology, and innovation, as well as on matters involving scientific and technological information that is needed to inform public policy relating to the economy, worker empowerment, education, energy, the environment, public health, national and homeland security, racial equity, and other topics.

(b) The PCAST shall meet regularly and shall:

(i) respond to requests from the President or the Science Advisor for information, analysis, evaluation, or advice;

(ii) solicit information and ideas from a broad range of stakeholders, including the research community; the private sector; universities; national laboratories; State, local, and Tribal governments; foundations; and nonprofit organizations;

(iii) serve as the advisory committee identified in section 101(b) of the High-Performance Computing Act of 1991 (Public Law 102–194), as amended (15 U.S.C. 5511(b)), in which capacity the PCAST shall be known as the President's Innovation and Technology Advisory Committee; and

(iv) serve as the advisory panel identified in section 4 of the 21st Century Nanotechnology Research and Development Act (Public Law 108–153), as amended (15 U.S.C. 7503), in which capacity the PCAST shall be known as the National Nanotechnology Advisory Panel.

(c) The PCAST shall provide advice from the non-Federal sector to the National Science and Technology Council (NSTC) in response to requests from the NSTC.

Sec. 4. Administration. (a) The heads of executive departments and agencies shall, to the extent permitted by law, provide the PCAST with information concerning scientific and technological matters when requested by the PCAST Co-Chairs and as required for the purpose of carrying out the PCAST's functions.

(b) In consultation with the Science Advisor, the PCAST is authorized to create standing subcommittees and ad hoc groups, including technical advisory groups, to assist the PCAST and provide preliminary information directly to the PCAST.

(c) In order to allow the PCAST to provide advice and analysis regarding classified matters, the Science Advisor may request that members of the PCAST, its standing subcommittees, or ad hoc groups, who do not hold a current clearance for access to classified information, receive security clearance and access determinations pursuant to Executive Order 12968 of August 2, 1995 (Access to Classified Information) [50 U.S.C. 3161 note], as amended, or any successor order.

(d) The Department of Energy shall provide such funding and administrative and technical support as the PCAST may require, to the extent permitted by law and within existing appropriations.

(e) Members of the PCAST shall serve without any compensation for their work on the PCAST, but may receive travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the government service (5 U.S.C. 5701–5707).

(f) Insofar as the Federal Advisory Committee Act, as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], may apply to the PCAST, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Secretary of Energy, in accordance with the guidelines and procedures established by the Administrator of General Services.

Sec. 5. Termination. The PCAST shall terminate 2 years from the date of this order [Jan. 27, 2021] unless extended by the President.

Sec. 6. Revocation. Executive Order 13895 of October 22, 2019 (President's Council of Advisors on Science and Technology) [formerly set out above], is hereby revoked.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.      

Extension of Term of President's Council of Advisors on Science and Technology

Term of President's Council of Advisors on Science and Technology (established by Ex. Ord. No. 14007) extended until Sept. 30, 2025, by Ex. Ord. No. 14109, Sept. 29, 2023, 88 F.R. 68447, set out as a note under section 1013 of Title 5, Government Organization and Employees.

Previous extension of term of President's Council of Advisors on Science and Technology (established by Ex. Ord. No. 14007) was contained in the following prior Executive Order:

Ex. Ord. No. 14048, Sept. 30, 2021, 86 F.R. 55465, extended term until Sept. 30, 2023.

Strengthened Protections for Human Subjects of Classified Research

Memorandum of President of the United States, Mar. 27, 1997, 62 F.R. 26369, provided:

Memorandum for the Secretary of Defense, the Attorney General, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Labor, the Secretary of Health and Human Services, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Secretary of Energy, the Secretary of Education, the Secretary of Veterans Affairs, the Director of Central Intelligence, the Administrator of the Environmental Protection Agency, the Administrator of the Agency for International Development, the Administrator of the National Aeronautics and Space Administration, the Director of the National Science Foundation, the Chair of the Nuclear Regulatory Commission, the Director of the Office of Science and Technology Policy, [and] the Chair of the Consumer Product Safety Commission

I have worked hard to restore trust and ensure openness in government. This memorandum will further our progress toward these goals by strengthening the Federal Government's protections for human subjects of classified research.

In January 1994, I established the Advisory Committee on Human Radiation Experiments (the "Advisory Committee") to examine reports that the government had funded and conducted unethical human radiation experiments during the Cold War [see Ex. Ord. No. 12891, formerly set out as a note under section 2210 of this title]. I directed the Advisory Committee to uncover the truth, recommend steps to right past wrongs, and propose ways to prevent unethical human subjects research from occurring in the future. In its October 1995 final report, the Advisory Committee recommended, among other things, that the government modify its policy governing classified research on human subjects ("Recommendations for Balancing National Security Interests and the Rights of the Public," Recommendation 15, Final Report, Advisory Committee on Human Radiation Experiments). This memorandum sets forth policy changes in response to those recommendations.

The Advisory Committee acknowledged that it is in the Nation's interest to continue to allow the government to conduct classified research involving human subjects where such research serves important national security interests. The Advisory Committee found, however, that classified human subjects research should be a "rare event" and that the "subjects of such research, as well as the interests of the public in openness in science and in government, deserve special protections." The Advisory Committee was concerned about "exceptions to informed consent requirements and the absence of any special review and approval process for human research that is to be classified." The Advisory Committee recommended that in all classified research projects the agency conducting or sponsoring the research meet the following requirements:

—obtain informed consent from all human subjects;

—inform subjects of the identity of the sponsoring agency;

—inform subjects that the project involves classified research;

—obtain approval by an "independent panel of nongovernmental experts and citizen representatives, all with the necessary security clearances" that reviews scientific merit, risk-benefit tradeoffs, and ensures subjects have enough information to make informed decisions to give valid consent; and

—maintain permanent records of the panel's deliberations and consent procedures.

This memorandum implements these recommendations with some modifications. For classified research, it prohibits waiver of informed consent and requires researchers to disclose that the project is classified. For all but minimal risk studies, it requires researchers to inform subjects of the sponsoring agency. It also requires permanent recordkeeping.

The memorandum also responds to the Advisory Committee's call for a special review process for classified human subjects research. It requires that institutional review boards for secret projects include a nongovernmental member, and establishes an appeals process so that any member of a review board who believes a project should not go forward can appeal the boards' decision to approve it.

Finally, this memorandum sets forth additional steps to ensure that classified human research is rare. It requires the heads of Federal agencies to disclose annually the number of secret human research projects undertaken by their agency. It also prohibits any agency from conducting secret human research without first promulgating a final rule applying the Federal Policy for the Protection of Human Subjects, as modified in this memorandum, to the agency.

These steps, set forth in detail below, will preserve the government's ability to conduct any necessary classified research involving human subjects while ensuring adequate protection of research participants.

1. Modifications to the Federal Policy for the Protection of Human Subjects as it Affects Classified Research. All agencies that may conduct or support classified research that is subject to the 1991 Federal Policy for the Protection of Human Subjects ("Common Rule") (56 Fed. Reg. 28010–28018) shall promptly jointly publish in the Federal Register the following proposed revisions to the Common Rule as it affects classified research. The Office for Protection from Research Risks in the Department of Health and Human Services shall be the lead agency and, in consultation with the Office of Management and Budget, shall coordinate the joint rulemaking.

(a) The agencies shall jointly propose to prohibit waiver of informed consent for classified research.

(b) The agencies shall jointly propose to prohibit the use of expedited review procedures under the Common Rule for classified research.

(c) The joint proposal should request comment on whether all research exemptions under the Common Rule should be maintained for classified research.

(d) The agencies shall jointly propose to require that in classified research involving human subjects, two additional elements of information be provided to potential subjects when consent is sought from subjects:

(i) the identity of the sponsoring Federal agency. Exceptions are allowed if the head of the sponsoring agency determines that providing this information could compromise intelligence sources or methods and that the research involves no more than minimal risk to subjects. The determination about sources and methods is to be made in consultation with the Director of Central Intelligence and the Assistant to the President for National Security Affairs. The determination about risk is to be made in consultation with the Director of the White House Office of Science and Technology Policy.

(ii) a statement that the project is "classified" and an explanation of what classified means.

(e) The agencies shall jointly propose to modify the institutional review board ("IRB") approval process for classified human subjects research as follows:

(i) The Common Rule currently requires that each IRB "include at least one member who is not otherwise affiliated with the institution and who is not part of the immediate family of a person who is affiliated with the institution." For classified research, the agencies shall define "not otherwise affiliated with the institution," as a nongovernmental member with the appropriate security clearance.

(ii) Under the Common Rule, research projects are approved by the IRB if a "majority of those (IRB) members present at a meeting" approved the project. For classified research, the agencies shall propose to permit any member of the IRB who does not believe a specific project should be approved by the IRB to appeal a majority decision to approve the project to the head of the sponsoring agency. If the agency head affirms the IRB's decision to approve the project, the dissenting IRB member may appeal the IRB's decisions to the Director of OSTP. The Director of OSTP shall review the IRB's decision and approve or disapprove the project, or, at the Director's discretion, convene an IRB made up of nongovernmental officials, each with the appropriate security clearances, to approve or disapprove the project.

(iii) IRBs for classified research shall determine whether potential subjects need access to classified information to make a valid informed consent decision.

2. Final Rules. Agencies shall, within 1 year, after considering any comments, promulgate final rules on the protection of human subjects of classified research.

3. Agency Head Approval of Classified Research Projects. Agencies may not conduct any classified human research project subject to the Common Rule unless the agency head has personally approved the specific project.

4. Annual Public Disclosure of the Number of Classified Research Projects. Each agency head shall inform the Director of OSTP by September 30 of each year of the number of classified research projects involving human subjects underway on that date, the number completed in the previous 12-month period, and the number of human subjects in each project. The Director of OSTP shall report the total number of classified research projects and participating subjects to the President and shall then report to the congressional armed services and intelligence committees and further shall publish the numbers in the Federal Register.

5. Definitions. For purposes of this memorandum, the terms "research" and "human subject" shall have the meaning set forth in the Common Rule. "Classified human research" means research involving "classified information" as defined in [former] Executive Order 12958.

6. No Classified Human Research Without Common Rule. Beginning one year after the date of this memorandum, no agency shall conduct or support classified human research without having proposed and promulgated the Common Rule, including the changes set forth in this memorandum and any subsequent amendments.

7. Judicial Review. This memorandum is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any other persons.

8. The Secretary of Health and Human Services shall publish this memorandum in the Federal Register.

William J. Clinton.      

Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking

Memorandum of President of the United States, Jan. 27, 2021, 86 F.R. 8845, provided:

Memorandum for the Heads of Executive Departments and Agencies

It is the policy of my Administration to make evidence-based decisions guided by the best available science and data. Scientific and technological information, data, and evidence are central to the development and iterative improvement of sound policies, and to the delivery of equitable programs, across every area of government. Scientific findings should never be distorted or influenced by political considerations. When scientific or technological information is considered in policy decisions, it should be subjected to well-established scientific processes, including peer review where feasible and appropriate, with appropriate protections for privacy. Improper political interference in the work of Federal scientists or other scientists who support the work of the Federal Government and in the communication of scientific facts undermines the welfare of the Nation, contributes to systemic inequities and injustices, and violates the trust that the public places in government to best serve its collective interests.

This memorandum reaffirms and builds on the Presidential Memorandum of March 9, 2009 (Scientific Integrity) [74 F.R. 10671], and the Director of the Office of Science and Technology Policy's Memorandum of December 17, 2010 (Scientific Integrity).

By the authority vested in me as President by the Constitution and the laws of the United States of America, I direct as follows:

Section 1. Role of the Director of the Office of Science and Technology Policy. The Director of the Office of Science and Technology Policy (Director) shall ensure the highest level of integrity in all aspects of executive branch involvement with scientific and technological processes. This responsibility shall include ensuring that executive departments and agencies (agencies) establish and enforce scientific-integrity policies that ban improper political interference in the conduct of scientific research and in the collection of scientific or technological data, and that prevent the suppression or distortion of scientific or technological findings, data, information, conclusions, or technical results. In implementing this memorandum, the Director shall, as appropriate, convene and confer with the heads of agencies and with personnel within the offices of the Executive Office of the President, including the Office of Management and Budget.

Sec. 2. Task Force on Scientific Integrity. (a) The Director shall convene an interagency task force (the "Task Force") of the National Science and Technology Council (NSTC) to conduct a thorough review of the effectiveness of agency scientific-integrity policies developed since the issuance of the Presidential Memorandum of March 9, 2009.

(b) The Task Force shall complete its review within 120 days of the date of the appointment of its members, and shall take the following actions when completing its review.

(i) The Task Force shall ensure its review considers whether existing Federal scientific-integrity policies prevent improper political interference in the conduct of scientific research and the collection of scientific or technological data; prevent the suppression or distortion of scientific or technological findings, data, information, conclusions, or technical results; support scientists and researchers of all genders, races, ethnicities, and backgrounds; and advance the equitable delivery of the Federal Government's programs.

(ii) The Task Force's review shall include an analysis of any instances in which existing scientific-integrity policies have not been followed or enforced, including whether such deviations from existing policies have resulted in improper political interference in the conduct of scientific research and the collection of scientific or technological data; led to the suppression or distortion of scientific or technological findings, data, information, conclusions, or technical results; disproportionately harmed Federal scientists and researchers from groups that are historically underrepresented in science, technology, and related fields; or impeded the equitable delivery of the Federal Government's programs. The scope of this review shall include the work of scientific and technological advisory committees, boards, and similar bodies. The existing policies examined by this review shall include those issued pursuant to the Presidential Memorandum of March 9, 2009, and the Director's Memorandum of December 17, 2010; any other scientific-integrity policies published on agency websites; and commonly accepted scientific-integrity practices.

(iii) The Task Force shall identify effective practices regarding engagement of Federal scientists, as well as contractors working on scientific matters for agencies, with news media and on social media; effective policies that protect scientific independence during clearance and review, and that avoid improper political interference in research or data collection; effective approaches for handling any disagreements about scientific methods and conclusions; effective reporting practices that promote transparency in the implementation of agency scientific-integrity policies and in the handling of any allegations of misconduct; effective practices for educating and informing employees and contractors of their rights and responsibilities related to agency scientific-integrity policies; promising opportunities to address gaps in current scientific-integrity policies related to emerging technologies, such as artificial intelligence and machine-learning, and evolving scientific practices, such as citizen science and community-engaged research; effective approaches to minimizing conflicts of interest in Federal Government science; and policies that support the professional development of Federal scientists in accordance with, and building on, section IV of the Director's Memorandum of December 17, 2010.

(iv) To inform the review, the Task Force shall gather input from stakeholders and the public regarding scientific-integrity practices. The Task Force shall consider obtaining such input through various means, which may include holding a virtual stakeholder summit hosted by the Office of Science and Technology Policy (OSTP), issuing a public request for information, and conducting a virtual listening tour or open forums.

(v) Upon the conclusion of its review, the Director shall publish a report on the OSTP website synthesizing the Task Force's findings. The report shall include a description of agencies' strengths and weaknesses regarding scientific-integrity policies, as well as a description of best practices and lessons learned.

(c) Within 120 days of the publication of the Task Force's initial 120-day review of existing scientific-integrity policies, the Task Force shall develop a framework to inform and support the regular assessment and iterative improvement of agency scientific-integrity policies and practices, to support the Director and OSTP in ensuring that agencies adhere to the principles of scientific integrity. This framework shall include assessment criteria that OSTP and agencies can use to inform, review, and improve the design and implementation of agency scientific-integrity policies. The Director shall publish this framework on the OSTP website.

Sec. 3. Agency Scientific-Integrity Policies. (a) Heads of agencies shall ensure that all agency activities associated with scientific and technological processes are conducted in accordance with the 6 principles set forth in section 1 of the Presidential Memorandum of March 9, 2009, and the 4 foundations of scientific integrity in government set forth in part I of the Director's Memorandum of December 17, 2010.

(b) Heads of agencies shall ensure that their agency scientific-integrity policies reflect the findings in the Task Force report produced under section (2)(b)(v) of this memorandum and apply to all agency employees, regardless of the nature of their appointment, as well as contractors who perform scientific activities for agencies. Heads of agencies shall coordinate with the Director in the development, updating, and implementation of any agency-specific policies or procedures deemed necessary to ensure the integrity of scientific decision-making. The following time frames shall apply when completing the activities described in this subsection:

(i) The head of each agency with an existing scientific-integrity policy shall submit an updated policy to the Director within 180 days of the publication of the Task Force's report.

(ii) The head of each agency without an existing scientific-integrity policy shall submit a draft agency scientific-integrity policy to the Director within 180 days of the publication of the Task Force's report.

(iii) The Director shall expeditiously review scientific-integrity policies submitted by the agencies to ensure that the policies respond to the Task Force's analysis, adhere to the policy directives in this memorandum, and uphold the highest standards of scientific practice.

(iv) The Director shall notify agencies of any deficiencies in the scientific-integrity policies and collaborate with agencies to expeditiously correct those deficiencies.

(c) In implementing this section, heads of agencies shall:

(i) Provide the Director with any information the Director deems necessary to conduct the Director's duties under this memorandum;

(ii) Publish the agency's scientific-integrity policy on the agency's website, and disseminate information about the policy through the agency's social media channels;

(iii) Develop and publish procedures, as appropriate and consistent with applicable law, for implementing the agency's scientific-integrity policy, including establishing and publishing an administrative process for reporting, investigating, and appealing allegations of deviations from the agency's policy, and for resolving any disputes or disagreements about scientific methods and conclusions;

(iv) Review and, as needed, update within 60 days of the date of this memorandum [Jan. 27, 2021] any website content, and within 300 days of the date of this memorandum any agency reports, data, and other agency materials issued or published since January 20, 2017, that are inconsistent with the principles set forth in this memorandum and that remain in use by the agency or its stakeholders;

(v) Educate agency employees, as well as contractors who perform scientific activities for the agency, on their rights and responsibilities related to scientific integrity, including by conducting routine training on the agency's scientific-integrity policy for all employees, and by ensuring any new employees are made aware of their responsibilities under the agency's scientific-integrity policy shortly after they are hired; and

(vi) Publish, consistent with any requirements related to national security and privacy, as well as any other applicable law, an annual report on the agency's website that includes the number of administrative investigations and appeals involving alleged deviations from the agency's scientific-integrity policies, as described in section (3)(c)(iii) of this memorandum, for the year covered by the report, and the number of investigations and appeals pending from years prior to the year covered by the report, if any.

Sec. 4. Publication of Scientific-Integrity Policies and Ongoing Biennial Reporting. (a) The Director shall publish on the OSTP website, and disseminate via social media, information about this memorandum, related OSTP and NSTC reports on scientific integrity, and links to the scientific-integrity policies posted on agency websites, to ensure such information and policies can be easily accessed by the public.

(b) The Director shall publish on the OSTP website, and disseminate via social media, a biennial report on the status of the implementation of this memorandum across the executive branch. This report shall include a review of the impact on scientific integrity of diversity, equity, and inclusion practices related to the Federal scientific and engineering workforce and scientific Federal advisory committees.

Sec. 5. Evidence-Based Policymaking. (a) Heads of agencies shall ensure that the scientific-integrity policies of their agencies consider, supplement, and support their plans for forming evidence-based policies, including the evidence-building plans required by 5 U.S.C. 312(a) and the annual evaluation plans required by 5 U.S.C. 312(b).

(b) Within 120 days of the date of this memorandum, after consultation with the Director, the Director of the Office of Management and Budget (OMB) shall issue guidance to improve agencies' evidence-building plans and annual evaluation plans. Specifically, the Director of OMB shall consider whether, consistent with, and building upon, Executive Order 13707 of September 15, 2015 (Using Behavioral Science Insights to Better Serve the American People) [5 U.S.C. 601 note], agencies' evidence-building plans and annual evaluation plans shall include a broad set of methodological approaches for the evidence-based and iterative development and the equitable delivery of policies, programs, and agency operations. Relevant approaches might include use of pilot projects, randomized control trials, quantitative-survey research and statistical analysis, qualitative research, ethnography, research based on data linkages in which records from two or more datasets that refer to the same entity are joined, well-established processes for community engagement and inclusion in research, and other approaches that may be informed by the social and behavioral sciences and data science.

(c) The statutory positions required to be designated by agencies by the Foundations for Evidence-Based Policymaking Act of 2018 (Public Law 115–435) [see Tables for classification], which include the Evaluation Officer, the Chief Data Officer, and a senior statistical official, shall incorporate scientific-integrity principles consistent with this memorandum into agencies' data governance and evaluation approaches. Similarly, the Chief Data Officers Council shall incorporate scientific-integrity principles consistent with this memorandum into its efforts to establish government-wide best practices for the use, protection, dissemination, and generation of data, and both the Chief Data Officers Council and the Evaluation Officer Council shall identify ways in which agencies can improve upon the production of evidence for use in policymaking.

(d) Consistent with the provisions of the Foundations for Evidence-Based Policymaking Act of 2018, heads of agencies shall, as appropriate and consistent with applicable law, expand open and secure access to Federal data routinely collected in the course of administering Federal, State, local, Tribal, or territorial government programs or fulfilling Federal, State, local, Tribal, or territorial government mandates, such as tax data, vital records, other statistical data, and Social Security Administration earnings and employment reports, to ensure governmental and non-governmental researchers can use Federal data to assess and evaluate the effectiveness and equitable delivery of policies and to suggest improvements. In implementing this provision, heads of agencies shall:

(i) Make these data available by default in a machine-readable format and in a manner that protects privacy and confidential or classified information, and any other information protected from disclosure by law;

(ii) Publish an agency data plan that provides a consistent framework for data stewardship, use, and access. If publishing such a plan is not feasible, then the head of the agency shall publish guidelines outlining how the data were collected, metadata on data use, any limitations on data use, and ways for researchers to provide feedback on data shared;

(iii) Follow the mandates of the Information Quality Act (section 515 of [H.R. 5658 of the 106th Congress, as enacted by section 1(a)(3) of] Public Law 106–554) [44 U.S.C. 3516 note] in assessing and making available to researchers information on the quality of the data being provided; and

(iv) Where possible, provide such data disaggregated by gender, race, ethnicity, age, income, and other demographic factors that support researchers in understanding the effects of policies and programs on equity and justice.

(e) The Director of OMB shall review whether guidance to agencies on implementation of the Information Quality Act needs to be updated and reissued.

(f) Heads of agencies shall review and expeditiously update any agency policies, processes, and practices issued or published since January 20, 2017, that prevent the best available science and data from informing the agency's evidence-based and iterative development and equitable delivery of policies and programs.

Sec. 6. Agency Chief Science Officers and Scientific Integrity Officials. (a) Within 120 days of the date of this memorandum, the heads of agencies that fund, conduct, or oversee scientific research shall, to the extent consistent with applicable law, designate a senior agency employee for the role of chief science officer, science advisor, or chief scientist ("Chief Science Officer"), who shall:

(i) Serve as the principal advisor to the head of the agency on scientific issues and ensure that the agency's research programs are scientifically and technologically well-founded and conducted with integrity; and

(ii) Oversee the implementation and iterative improvement of policies and processes affecting the integrity of research funded, conducted, or overseen by the agency, as well as policies affecting the Federal and non-Federal scientists who support the research activities of the agency, including scientific-integrity policies consistent with the provisions of this memorandum.

(b) Because science, facts, and evidence are vital to addressing policy and programmatic issues across the Federal Government, the heads of all agencies (not only those that fund, conduct, or oversee scientific research) shall designate expeditiously a senior career employee as the agency's lead scientific-integrity official ("Scientific Integrity Official") to oversee implementation and iterative improvement of scientific-integrity policies and processes consistent with the provisions of this memorandum, including implementation of the administrative and dispute resolution processes described in section (3)(c)(iii) of this memorandum. For agencies with a Chief Science Officer, the Scientific Integrity Official shall report to the Chief Science Officer on all matters involving scientific-integrity policies.

(c) To the extent necessary to fully implement the provisions of this memorandum, heads of agencies may designate additional scientific-integrity points of contact in different offices and components, who shall coordinate with the agency's Scientific Integrity Official in implementing the agency's scientific-integrity policies and processes.

(d) Heads of agencies should ensure those designated to serve in the roles described in this section, along with their respective staffs, are selected based on their scientific and technological knowledge, skills, experience, and integrity, including experience conducting and overseeing scientific research and utilizing scientific and technological information and data in agency decision-making, prioritizing experience with evidence-based, equitable, inclusive, and participatory practices and structures for the conduct of scientific research and the communication of scientific results.

(e) The Director or a designee of the Director shall regularly convene Chief Science Officers and Scientific Integrity Officials to encourage the discussion and expansion of effective scientific-integrity policies and practices among agencies.

Sec. 7. Scientific Advisory Committees. (a) Within 90 days of the date of this memorandum, heads of agencies shall review their current and future needs for independent scientific and technological advice from Federal advisory committees, commissions, and boards. The review should include an evaluation of those advisory bodies established by law, and should consider both current and anticipated needs.

(b) This review shall assess which Federal scientific and technological advisory committees should be rechartered or recreated to ensure that relevant and highly qualified external experts, with proper safeguards against conflicts of interest, can contribute to critical Federal regulations and other agency actions and decision-making. The review shall also identify any agency policies, processes, or practices that may currently prevent or inhibit relevant and highly qualified external experts from serving on such committees.

(c) In conducting this review, heads of agencies shall take steps to review the membership of scientific and technological advisory committees and, as appropriate and consistent with applicable law, ensure that members and future nominees reflect the diversity of America in terms of gender, race, ethnicity, geography, and other characteristics; represent a variety of backgrounds, areas of expertise, and experiences; provide well-rounded and expert advice to agencies; and are selected based on their scientific and technological knowledge, skills, experience, and integrity, including prioritization of experience with evidence-based, equitable, inclusive, and participatory practices and structures for the conduct of scientific research and the communication of scientific results.

(d) Upon completion of their 90-day review, heads of agencies shall provide a summary report to the Director and the Director of OMB with recommendations on which Federal scientific and technological advisory committees should be rechartered or recreated in accordance with subsection (b) of this section; which scientific and technological advisory committees should be prioritized for membership appointments to ensure they provide well-rounded and expert advice reflecting diverse perspectives, in accordance with subsection (c) of this section; and which agency policies, processes, or practices, if any, should be updated to encourage relevant and highly qualified external experts to serve on such committees.

Sec. 8. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

J.R. Biden, Jr.
42 U.S.C. § 7661a (2024) — Title 42: THE PUBLIC HEALTH AND WELFARE / Chapter 85: AIR POLLUTION PREVENTION AND CONTROL / Subchapter V: PERMITS / Section 7661a: Permit programs
Permit programs
Status: in_force

(a) Violations

After the effective date of any permit program approved or promulgated under this subchapter, it shall be unlawful for any person to violate any requirement of a permit issued under this subchapter, or to operate an affected source (as provided in subchapter IV–A), a major source, any other source (including an area source) subject to standards or regulations under section 7411 or 7412 of this title, any other source required to have a permit under parts 1 C or D of subchapter I, or any other stationary source in a category designated (in whole or in part) by regulations promulgated by the Administrator (after notice and public comment) which shall include a finding setting forth the basis for such designation, except in compliance with a permit issued by a permitting authority under this subchapter. (Nothing in this subsection shall be construed to alter the applicable requirements of this chapter that a permit be obtained before construction or modification.) The Administrator may, in the Administrator's discretion and consistent with the applicable provisions of this chapter, promulgate regulations to exempt one or more source categories (in whole or in part) from the requirements of this subsection if the Administrator finds that compliance with such requirements is impracticable, infeasible, or unnecessarily burdensome on such categories, except that the Administrator may not exempt any major source from such requirements.

(b) Regulations

The Administrator shall promulgate within 12 months after November 15, 1990, regulations establishing the minimum elements of a permit program to be administered by any air pollution control agency. These elements shall include each of the following:

(1) Requirements for permit applications, including a standard application form and criteria for determining in a timely fashion the completeness of applications.

(2) Monitoring and reporting requirements.

(3)(A) A requirement under State or local law or interstate compact that the owner or operator of all sources subject to the requirement to obtain a permit under this subchapter pay an annual fee, or the equivalent over some other period, sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program requirements of this subchapter, including section 7661f of this title, including the reasonable costs of—

(i) reviewing and acting upon any application for such a permit,

(ii) if the owner or operator receives a permit for such source, whether before or after November 15, 1990, implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action),

(iii) emissions and ambient monitoring,

(iv) preparing generally applicable regulations, or guidance,

(v) modeling, analyses, and demonstrations, and

(vi) preparing inventories and tracking emissions.

(B) The total amount of fees collected by the permitting authority shall conform to the following requirements:

(i) The Administrator shall not approve a program as meeting the requirements of this paragraph unless the State demonstrates that, except as otherwise provided in subparagraphs 2 (ii) through (v) of this subparagraph, the program will result in the collection, in the aggregate, from all sources subject to subparagraph (A), of an amount not less than $25 per ton of each regulated pollutant, or such other amount as the Administrator may determine adequately reflects the reasonable costs of the permit program.

(ii) As used in this subparagraph, the term "regulated pollutant" shall mean (I) a volatile organic compound; (II) each pollutant regulated under section 7411 or 7412 of this title; and (III) each pollutant for which a national primary ambient air quality standard has been promulgated (except that carbon monoxide shall be excluded from this reference).

(iii) In determining the amount under clause (i), the permitting authority is not required to include any amount of regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollutant.

(iv) The requirements of clause (i) shall not apply if the permitting authority demonstrates that collecting an amount less than the amount specified under clause (i) will meet the requirements of subparagraph (A).

(v) The fee calculated under clause (i) shall be increased (consistent with the need to cover the reasonable costs authorized by subparagraph (A)) in each year beginning after 1990, by the percentage, if any, by which the Consumer Price Index for the most recent calendar year ending before the beginning of such year exceeds the Consumer Price Index for the calendar year 1989. For purposes of this clause—

(I) the Consumer Price Index for any calendar year is the average of the Consumer Price Index for all-urban consumers published by the Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year, and

(II) the revision of the Consumer Price Index which is most consistent with the Consumer Price Index for calendar year 1989 shall be used.

(C)(i) If the Administrator determines, under subsection (d), that the fee provisions of the operating permit program do not meet the requirements of this paragraph, or if the Administrator makes a determination, under subsection (i), that the permitting authority is not adequately administering or enforcing an approved fee program, the Administrator may, in addition to taking any other action authorized under this subchapter, collect reasonable fees from the sources identified under subparagraph (A). Such fees shall be designed solely to cover the Administrator's costs of administering the provisions of the permit program promulgated by the Administrator.

(ii) Any source that fails to pay fees lawfully imposed by the Administrator under this subparagraph shall pay a penalty of 50 percent of the fee amount, plus interest on the fee amount computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment of Federal taxes).

(iii) Any fees, penalties, and interest collected under this subparagraph shall be deposited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available for appropriation, to remain available until expended, subject to appropriation, to carry out the Agency's activities for which the fees were collected. Any fee required to be collected by a State, local, or interstate agency under this subsection shall be utilized solely to cover all reasonable (direct and indirect) costs required to support the permit program as set forth in subparagraph (A).

(4) Requirements for adequate personnel and funding to administer the program.

(5) A requirement that the permitting authority have adequate authority to:

(A) issue permits and assure compliance by all sources required to have a permit under this subchapter with each applicable standard, regulation or requirement under this chapter;

(B) issue permits for a fixed term, not to exceed 5 years;

(C) assure that upon issuance or renewal permits incorporate emission limitations and other requirements in an applicable implementation plan;

(D) terminate, modify, or revoke and reissue permits for cause;

(E) enforce permits, permit fee requirements, and the requirement to obtain a permit, including authority to recover civil penalties in a maximum amount of not less than $10,000 per day for each violation, and provide appropriate criminal penalties; and

(F) assure that no permit will be issued if the Administrator objects to its issuance in a timely manner under this subchapter.

(6) Adequate, streamlined, and reasonable procedures for expeditiously determining when applications are complete, for processing such applications, for public notice, including offering an opportunity for public comment and a hearing, and for expeditious review of permit actions, including applications, renewals, or revisions, and including an opportunity for judicial review in State court of the final permit action by the applicant, any person who participated in the public comment process, and any other person who could obtain judicial review of that action under applicable law.

(7) To ensure against unreasonable delay by the permitting authority, adequate authority and procedures to provide that a failure of such permitting authority to act on a permit application or permit renewal application (in accordance with the time periods specified in section 7661b of this title or, as appropriate, subchapter IV–A) shall be treated as a final permit action solely for purposes of obtaining judicial review in State court of an action brought by any person referred to in paragraph (6) to require that action be taken by the permitting authority on such application without additional delay.

(8) Authority, and reasonable procedures consistent with the need for expeditious action by the permitting authority on permit applications and related matters, to make available to the public any permit application, compliance plan, permit, and monitoring or compliance report under section 7661b(e) of this title, subject to the provisions of section 7414(c) of this title.

(9) A requirement that the permitting authority, in the case of permits with a term of 3 or more years for major sources, shall require revisions to the permit to incorporate applicable standards and regulations promulgated under this chapter after the issuance of such permit. Such revisions shall occur as expeditiously as practicable and consistent with the procedures established under paragraph (6) but not later than 18 months after the promulgation of such standards and regulations. No such revision shall be required if the effective date of the standards or regulations is a date after the expiration of the permit term. Such permit revision shall be treated as a permit renewal if it complies with the requirements of this subchapter regarding renewals.

(10) Provisions to allow changes within a permitted facility (or one operating pursuant to section 7661b(d) of this title) without requiring a permit revision, if the changes are not modifications under any provision of subchapter I and the changes do not exceed the emissions allowable under the permit (whether expressed therein as a rate of emissions or in terms of total emissions: 3 Provided, That the facility provides the Administrator and the permitting authority with written notification in advance of the proposed changes which shall be a minimum of 7 days, unless the permitting authority provides in its regulations a different timeframe for emergencies.

(c) Single permit

A single permit may be issued for a facility with multiple sources.

(d) Submission and approval

(1) Not later than 3 years after November 15, 1990, the Governor of each State shall develop and submit to the Administrator a permit program under State or local law or under an interstate compact meeting the requirements of this subchapter. In addition, the Governor shall submit a legal opinion from the attorney general (or the attorney for those State air pollution control agencies that have independent legal counsel), or from the chief legal officer of an interstate agency, that the laws of the State, locality, or the interstate compact provide adequate authority to carry out the program. Not later than 1 year after receiving a program, and after notice and opportunity for public comment, the Administrator shall approve or disapprove such program, in whole or in part. The Administrator may approve a program to the extent that the program meets the requirements of this chapter, including the regulations issued under subsection (b). If the program is disapproved, in whole or in part, the Administrator shall notify the Governor of any revisions or modifications necessary to obtain approval. The Governor shall revise and resubmit the program for review under this section within 180 days after receiving notification.

(2)(A) If the Governor does not submit a program as required under paragraph (1) or if the Administrator disapproves a program submitted by the Governor under paragraph (1), in whole or in part, the Administrator may, prior to the expiration of the 18-month period referred to in subparagraph (B), in the Administrator's discretion, apply any of the sanctions specified in section 7509(b) of this title.

(B) If the Governor does not submit a program as required under paragraph (1), or if the Administrator disapproves any such program submitted by the Governor under paragraph (1), in whole or in part, 18 months after the date required for such submittal or the date of such disapproval, as the case may be, the Administrator shall apply sanctions under section 7509(b) of this title in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 7509(a) of this title.

(C) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this paragraph in any area unless the failure to submit or the disapproval referred to in subparagraph (A) or (B) relates to an air pollutant for which such area has been designated a nonattainment area (as defined in part D of subchapter I).

(3) If a program meeting the requirements of this subchapter has not been approved in whole for any State, the Administrator shall, 2 years after the date required for submission of such a program under paragraph (1), promulgate, administer, and enforce a program under this subchapter for that State.

(e) Suspension

The Administrator shall suspend the issuance of permits promptly upon publication of notice of approval of a permit program under this section, but may, in such notice, retain jurisdiction over permits that have been federally issued, but for which the administrative or judicial review process is not complete. The Administrator shall continue to administer and enforce federally issued permits under this subchapter until they are replaced by a permit issued by a permitting program. Nothing in this subsection should be construed to limit the Administrator's ability to enforce permits issued by a State.

(f) Prohibition

No partial permit program shall be approved unless, at a minimum, it applies, and ensures compliance with, this subchapter and each of the following:

(1) All requirements established under subchapter IV–A applicable to "affected sources".

(2) All requirements established under section 7412 of this title applicable to "major sources", "area sources," and "new sources".

(3) All requirements of subchapter I (other than section 7412 of this title) applicable to sources required to have a permit under this subchapter.

Approval of a partial program shall not relieve the State of its obligation to submit a complete program, nor from the application of any sanctions under this chapter for failure to submit an approvable permit program.

(g) Interim approval

If a program (including a partial permit program) submitted under this subchapter substantially meets the requirements of this subchapter, but is not fully approvable, the Administrator may by rule grant the program interim approval. In the notice of final rulemaking, the Administrator shall specify the changes that must be made before the program can receive full approval. An interim approval under this subsection shall expire on a date set by the Administrator not later than 2 years after such approval, and may not be renewed. For the period of any such interim approval, the provisions of subsection (d)(2), and the obligation of the Administrator to promulgate a program under this subchapter for the State pursuant to subsection (d)(3), shall be suspended. Such provisions and such obligation of the Administrator shall apply after the expiration of such interim approval.

(h) Effective date

The effective date of a permit program, or partial or interim program, approved under this subchapter, shall be the effective date of approval by the Administrator. The effective date of a permit program, or partial permit program, promulgated by the Administrator shall be the date of promulgation.

(i) Administration and enforcement

(1) Whenever the Administrator makes a determination that a permitting authority is not adequately administering and enforcing a program, or portion thereof, in accordance with the requirements of this subchapter, the Administrator shall provide notice to the State and may, prior to the expiration of the 18-month period referred to in paragraph (2), in the Administrator's discretion, apply any of the sanctions specified in section 7509(b) of this title.

(2) Whenever the Administrator makes a determination that a permitting authority is not adequately administering and enforcing a program, or portion thereof, in accordance with the requirements of this subchapter, 18 months after the date of the notice under paragraph (1), the Administrator shall apply the sanctions under section 7509(b) of this title in the same manner and subject to the same deadlines and other conditions as are applicable in the case of a determination, disapproval, or finding under section 7509(a) of this title.

(3) The sanctions under section 7509(b)(2) of this title shall not apply pursuant to this subsection in any area unless the failure to adequately enforce and administer the program relates to an air pollutant for which such area has been designated a nonattainment area.

(4) Whenever the Administrator has made a finding under paragraph (1) with respect to any State, unless the State has corrected such deficiency within 18 months after the date of such finding, the Administrator shall, 2 years after the date of such finding, promulgate, administer, and enforce a program under this subchapter for that State. Nothing in this paragraph shall be construed to affect the validity of a program which has been approved under this subchapter or the authority of any permitting authority acting under such program until such time as such program is promulgated by the Administrator under this paragraph.

(July 14, 1955, ch. 360, title V, §502, as added Pub. L. 101–549, title V, §501, Nov. 15, 1990, 104 Stat. 2635.)

1 So in original. Probably should be "part".

2 So in original. Probably should be "clauses".

3 So in original. A closing parenthesis probably should precede the colon.
42 U.S.C. § 1396p (2024) — Title 42: THE PUBLIC HEALTH AND WELFARE / Chapter 7: SOCIAL SECURITY / Subchapter XIX: GRANTS TO STATES FOR MEDICAL ASSISTANCE PROGRAMS / Section 1396p: Liens, adjustments and recoveries, and transfers of assets
Liens, adjustments and recoveries, and transfers of assets
Status: in_force

(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan

(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except—

(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or

(B) in the case of the real property of an individual—

(i) who is an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, if such individual is required, as a condition of receiving services in such institution under the State plan, to spend for costs of medical care all but a minimal amount of his income required for personal needs, and

(ii) with respect to whom the State determines, after notice and opportunity for a hearing (in accordance with procedures established by the State), that he cannot reasonably be expected to be discharged from the medical institution and to return home,

except as provided in paragraph (2).

(2) No lien may be imposed under paragraph (1)(B) on such individual's home if—

(A) the spouse of such individual,

(B) such individual's child who is under age 21, or (with respect to States eligible to participate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in section 1382c of this title, or

(C) a sibling of such individual (who has an equity interest in such home and who was residing in such individual's home for a period of at least one year immediately before the date of the individual's admission to the medical institution),

is lawfully residing in such home.

(3) Any lien imposed with respect to an individual pursuant to paragraph (1)(B) shall dissolve upon that individual's discharge from the medical institution and return home.

(b) Adjustment or recovery of medical assistance correctly paid under a State plan

(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made, except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:

(A) In the case of an individual described in subsection (a)(1)(B), the State shall seek adjustment or recovery from the individual's estate or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of the individual.

(B) In the case of an individual who was 55 years of age or older when the individual received such medical assistance, the State shall seek adjustment or recovery from the individual's estate, but only for medical assistance consisting of—

(i) nursing facility services, home and community-based services, and related hospital and prescription drug services, or

(ii) at the option of the State, any items or services under the State plan (but not including medical assistance for medicare cost-sharing or for benefits described in section 1396a(a)(10)(E) of this title).

(C)(i) In the case of an individual who has received (or is entitled to receive) benefits under a long-term care insurance policy in connection with which assets or resources are disregarded in the manner described in clause (ii), except as provided in such clause, the State shall seek adjustment or recovery from the individual's estate on account of medical assistance paid on behalf of the individual for nursing facility and other long-term care services.

(ii) Clause (i) shall not apply in the case of an individual who received medical assistance under a State plan of a State which had a State plan amendment approved as of May 14, 1993, and which satisfies clause (iv), or which has a State plan amendment that provides for a qualified State long-term care insurance partnership (as defined in clause (iii)) which provided for the disregard of any assets or resources—

(I) to the extent that payments are made under a long-term care insurance policy; or

(II) because an individual has received (or is entitled to receive) benefits under a long-term care insurance policy.

(iii) For purposes of this paragraph, the term "qualified State long-term care insurance partnership" means an approved State plan amendment under this subchapter that provides for the disregard of any assets or resources in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a long-term care insurance policy if the following requirements are met:

(I) The policy covers an insured who was a resident of such State when coverage first became effective under the policy.

(II) The policy is a qualified long-term care insurance policy (as defined in section 7702B(b) of the Internal Revenue Code of 1986) issued not earlier than the effective date of the State plan amendment.

(III) The policy meets the model regulations and the requirements of the model Act specified in paragraph (5).

(IV) If the policy is sold to an individual who—

(aa) has not attained age 61 as of the date of purchase, the policy provides compound annual inflation protection;

(bb) has attained age 61 but has not attained age 76 as of such date, the policy provides some level of inflation protection; and

(cc) has attained age 76 as of such date, the policy may (but is not required to) provide some level of inflation protection.

(V) The State Medicaid agency under section 1396a(a)(5) of this title provides information and technical assistance to the State insurance department on the insurance department's role of assuring that any individual who sells a long-term care insurance policy under the partnership receives training and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care.

(VI) The issuer of the policy provides regular reports to the Secretary, in accordance with regulations of the Secretary, that include notification regarding when benefits provided under the policy have been paid and the amount of such benefits paid, notification regarding when the policy otherwise terminates, and such other information as the Secretary determines may be appropriate to the administration of such partnerships.

(VII) The State does not impose any requirement affecting the terms or benefits of such a policy unless the State imposes such requirement on long-term care insurance policies without regard to whether the policy is covered under the partnership or is offered in connection with such a partnership.

In the case of a long-term care insurance policy which is exchanged for another such policy, subclause (I) shall be applied based on the coverage of the first such policy that was exchanged. For purposes of this clause and paragraph (5), the term "long-term care insurance policy" includes a certificate issued under a group insurance contract.

(iv) With respect to a State which had a State plan amendment approved as of May 14, 1993, such a State satisfies this clause for purposes of clause (ii) if the Secretary determines that the State plan amendment provides for consumer protection standards which are no less stringent than the consumer protection standards which applied under such State plan amendment as of December 31, 2005.

(v) The regulations of the Secretary required under clause (iii)(VI) shall be promulgated after consultation with the National Association of Insurance Commissioners, issuers of long-term care insurance policies, States with experience with long-term care insurance partnership plans, other States, and representatives of consumers of long-term care insurance policies, and shall specify the type and format of the data and information to be reported and the frequency with which such reports are to be made. The Secretary, as appropriate, shall provide copies of the reports provided in accordance with that clause to the State involved.

(vi) The Secretary, in consultation with other appropriate Federal agencies, issuers of long-term care insurance, the National Association of Insurance Commissioners, State insurance commissioners, States with experience with long-term care insurance partnership plans, other States, and representatives of consumers of long-term care insurance policies, shall develop recommendations for Congress to authorize and fund a uniform minimum data set to be reported electronically by all issuers of long-term care insurance policies under qualified State long-term care insurance partnerships to a secure, centralized electronic query and report-generating mechanism that the State, the Secretary, and other Federal agencies can access.

(2) Any adjustment or recovery under paragraph (1) may be made only after the death of the individual's surviving spouse, if any, and only at a time—

(A) when he has no surviving child who is under age 21, or (with respect to States eligible to participate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in section 1382c of this title; and

(B) in the case of a lien on an individual's home under subsection (a)(1)(B), when—

(i) no sibling of the individual (who was residing in the individual's home for a period of at least one year immediately before the date of the individual's admission to the medical institution), and

(ii) no son or daughter of the individual (who was residing in the individual's home for a period of at least two years immediately before the date of the individual's admission to the medical institution, and who establishes to the satisfaction of the State that he or she provided care to such individual which permitted such individual to reside at home rather than in an institution),

is lawfully residing in such home who has lawfully resided in such home on a continuous basis since the date of the individual's admission to the medical institution.

(3)(A) The State agency shall establish procedures (in accordance with standards specified by the Secretary) under which the agency shall waive the application of this subsection (other than paragraph (1)(C)) if such application would work an undue hardship as determined on the basis of criteria established by the Secretary.

(B) The standards specified by the Secretary under subparagraph (A) shall require that the procedures established by the State agency under subparagraph (A) exempt income, resources, and property that are exempt from the application of this subsection as of April 1, 2003, under manual instructions issued to carry out this subsection (as in effect on such date) because of the Federal responsibility for Indian Tribes and Alaska Native Villages. Nothing in this subparagraph shall be construed as preventing the Secretary from providing additional estate recovery exemptions under this subchapter for Indians.

(4) For purposes of this subsection, the term "estate", with respect to a deceased individual—

(A) shall include all real and personal property and other assets included within the individual's estate, as defined for purposes of State probate law; and

(B) may include, at the option of the State (and shall include, in the case of an individual to whom paragraph (1)(C)(i) applies), any other real and personal property and other assets in which the individual had any legal title or interest at the time of death (to the extent of such interest), including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.

(5)(A) For purposes of clause (iii)(III), the model regulations and the requirements of the model Act specified in this paragraph are:

(i) In the case of the model regulation, the following requirements:

(I) Section 6A (relating to guaranteed renewal or noncancellability), other than paragraph (5) thereof, and the requirements of section 6B of the model Act relating to such section 6A.

(II) Section 6B (relating to prohibitions on limitations and exclusions) other than paragraph (7) thereof.

(III) Section 6C (relating to extension of benefits).

(IV) Section 6D (relating to continuation or conversion of coverage).

(V) Section 6E (relating to discontinuance and replacement of policies).

(VI) Section 7 (relating to unintentional lapse).

(VII) Section 8 (relating to disclosure), other than sections 8F, 8G, 8H, and 8I thereof.

(VIII) Section 9 (relating to required disclosure of rating practices to consumer).

(IX) Section 11 (relating to prohibitions against post-claims underwriting).

(X) Section 12 (relating to minimum standards).

(XI) Section 14 (relating to application forms and replacement coverage).

(XII) Section 15 (relating to reporting requirements).

(XIII) Section 22 (relating to filing requirements for marketing).

(XIV) Section 23 (relating to standards for marketing), including inaccurate completion of medical histories, other than paragraphs (1), (6), and (9) of section 23C.

(XV) Section 24 (relating to suitability).

(XVI) Section 25 (relating to prohibition against preexisting conditions and probationary periods in replacement policies or certificates).

(XVII) The provisions of section 26 relating to contingent nonforfeiture benefits, if the policyholder declines the offer of a nonforfeiture provision described in paragraph (4).

(XVIII) Section 29 (relating to standard format outline of coverage).

(XIX) Section 30 (relating to requirement to deliver shopper's guide).

(ii) In the case of the model Act, the following:

(I) Section 6C (relating to preexisting conditions).

(II) Section 6D (relating to prior hospitalization).

(III) The provisions of section 8 relating to contingent nonforfeiture benefits.

(IV) Section 6F (relating to right to return).

(V) Section 6G (relating to outline of coverage).

(VI) Section 6H (relating to requirements for certificates under group plans).

(VII) Section 6J (relating to policy summary).

(VIII) Section 6K (relating to monthly reports on accelerated death benefits).

(IX) Section 7 (relating to incontestability period).

(B) For purposes of this paragraph and paragraph (1)(C)—

(i) the terms "model regulation" and "model Act" mean the long-term care insurance model regulation, and the long-term care insurance model Act, respectively, promulgated by the National Association of Insurance Commissioners (as adopted as of October 2000);

(ii) any provision of the model regulation or model Act listed under subparagraph (A) shall be treated as including any other provision of such regulation or Act necessary to implement the provision; and

(iii) with respect to a long-term care insurance policy issued in a State, the policy shall be deemed to meet applicable requirements of the model regulation or the model Act if the State plan amendment under paragraph (1)(C)(iii) provides that the State insurance commissioner for the State certifies (in a manner satisfactory to the Secretary) that the policy meets such requirements.

(C) Not later than 12 months after the National Association of Insurance Commissioners issues a revision, update, or other modification of a model regulation or model Act provision specified in subparagraph (A), or of any provision of such regulation or Act that is substantively related to a provision specified in such subparagraph, the Secretary shall review the changes made to the provision, determine whether incorporating such changes into the corresponding provision specified in such subparagraph would improve qualified State long-term care insurance partnerships, and if so, shall incorporate the changes into such provision.

(c) Taking into account certain transfers of assets

(1)(A) In order to meet the requirements of this subsection for purposes of section 1396a(a)(18) of this title, the State plan must provide that if an institutionalized individual or the spouse of such an individual (or, at the option of a State, a noninstitutionalized individual or the spouse of such an individual) disposes of assets for less than fair market value on or after the look-back date specified in subparagraph (B)(i), the individual is ineligible for medical assistance for services described in subparagraph (C)(i) (or, in the case of a noninstitutionalized individual, for the services described in subparagraph (C)(ii)) during the period beginning on the date specified in subparagraph (D) and equal to the number of months specified in subparagraph (E).

(B)(i) The look-back date specified in this subparagraph is a date that is 36 months (or, in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of subsection (d) or in the case of any other disposal of assets made on or after February 8, 2006, 60 months) before the date specified in clause (ii).

(ii) The date specified in this clause, with respect to—

(I) an institutionalized individual is the first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State plan, or

(II) a noninstitutionalized individual is the date on which the individual applies for medical assistance under the State plan or, if later, the date on which the individual disposes of assets for less than fair market value.

(C)(i) The services described in this subparagraph with respect to an institutionalized individual are the following:

(I) Nursing facility services.

(II) A level of care in any institution equivalent to that of nursing facility services.

(III) Home or community-based services furnished under a waiver granted under subsection (c) or (d) of section 1396n of this title.

(ii) The services described in this subparagraph with respect to a noninstitutionalized individual are services (not including any services described in clause (i)) that are described in paragraph (7), (22), or (24) of section 1396d(a) of this title, and, at the option of a State, other long-term care services for which medical assistance is otherwise available under the State plan to individuals requiring long-term care.

(D)(i) In the case of a transfer of asset made before February 8, 2006, the date specified in this subparagraph is the first day of the first month during or after which assets have been transferred for less than fair market value and which does not occur in any other periods of ineligibility under this subsection.

(ii) In the case of a transfer of asset made on or after February 8, 2006, the date specified in this subparagraph is the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care described in subparagraph (C) based on an approved application for such care but for the application of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection.

(E)(i) With respect to an institutionalized individual, the number of months of ineligibility under this subparagraph for an individual shall be equal to—

(I) the total, cumulative uncompensated value of all assets transferred by the individual (or individual's spouse) on or after the look-back date specified in subparagraph (B)(i), divided by

(II) the average monthly cost to a private patient of nursing facility services in the State (or, at the option of the State, in the community in which the individual is institutionalized) at the time of application.

(ii) With respect to a noninstitutionalized individual, the number of months of ineligibility under this subparagraph for an individual shall not be greater than a number equal to—

(I) the total, cumulative uncompensated value of all assets transferred by the individual (or individual's spouse) on or after the look-back date specified in subparagraph (B)(i), divided by

(II) the average monthly cost to a private patient of nursing facility services in the State (or, at the option of the State, in the community in which the individual is institutionalized) at the time of application.

(iii) The number of months of ineligibility otherwise determined under clause (i) or (ii) with respect to the disposal of an asset shall be reduced—

(I) in the case of periods of ineligibility determined under clause (i), by the number of months of ineligibility applicable to the individual under clause (ii) as a result of such disposal, and

(II) in the case of periods of ineligibility determined under clause (ii), by the number of months of ineligibility applicable to the individual under clause (i) as a result of such disposal.

(iv) A State shall not round down, or otherwise disregard any fractional period of ineligibility determined under clause (i) or (ii) with respect to the disposal of assets.

(F) For purposes of this paragraph, the purchase of an annuity shall be treated as the disposal of an asset for less than fair market value unless—

(i) the State is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the institutionalized individual under this subchapter; or

(ii) the State is named as such a beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a representative of such child disposes of any such remainder for less than fair market value.

(G) For purposes of this paragraph with respect to a transfer of assets, the term "assets" includes an annuity purchased by or on behalf of an annuitant who has applied for medical assistance with respect to nursing facility services or other long-term care services under this subchapter unless—

(i) the annuity is—

(I) an annuity described in subsection (b) or (q) of section 408 of the Internal Revenue Code of 1986; or

(II) purchased with proceeds from—

(aa) an account or trust described in subsection (a), (c), or (p) of section 408 of such Code;

(bb) a simplified employee pension (within the meaning of section 408(k) of such Code); or

(cc) a Roth IRA described in section 408A of such Code; or

(ii) the annuity—

(I) is irrevocable and nonassignable;

(II) is actuarially sound (as determined in accordance with actuarial publications of the Office of the Chief Actuary of the Social Security Administration); and

(III) provides for payments in equal amounts during the term of the annuity, with no deferral and no balloon payments made.

(H) Notwithstanding the preceding provisions of this paragraph, in the case of an individual (or individual's spouse) who makes multiple fractional transfers of assets in more than 1 month for less than fair market value on or after the applicable look-back date specified in subparagraph (B), a State may determine the period of ineligibility applicable to such individual under this paragraph by—

(i) treating the total, cumulative uncompensated value of all assets transferred by the individual (or individual's spouse) during all months on or after the look-back date specified in subparagraph (B) as 1 transfer for purposes of clause (i) or (ii) (as the case may be) of subparagraph (E); and

(ii) beginning such period on the earliest date which would apply under subparagraph (D) to any of such transfers.

(I) For purposes of this paragraph with respect to a transfer of assets, the term "assets" includes funds used to purchase a promissory note, loan, or mortgage unless such note, loan, or mortgage—

(i) has a repayment term that is actuarially sound (as determined in accordance with actuarial publications of the Office of the Chief Actuary of the Social Security Administration);

(ii) provides for payments to be made in equal amounts during the term of the loan, with no deferral and no balloon payments made; and

(iii) prohibits the cancellation of the balance upon the death of the lender.

In the case of a promissory note, loan, or mortgage that does not satisfy the requirements of clauses (i) through (iii), the value of such note, loan, or mortgage shall be the outstanding balance due as of the date of the individual's application for medical assistance for services described in subparagraph (C).

(J) For purposes of this paragraph with respect to a transfer of assets, the term "assets" includes the purchase of a life estate interest in another individual's home unless the purchaser resides in the home for a period of at least 1 year after the date of the purchase.

(2) An individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that—

(A) the assets transferred were a home and title to the home was transferred to—

(i) the spouse of such individual;

(ii) a child of such individual who (I) is under age 21, or (II) (with respect to States eligible to participate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in section 1382c of this title;

(iii) a sibling of such individual who has an equity interest in such home and who was residing in such individual's home for a period of at least one year immediately before the date the individual becomes an institutionalized individual; or

(iv) a son or daughter of such individual (other than a child described in clause (ii)) who was residing in such individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who (as determined by the State) provided care to such individual which permitted such individual to reside at home rather than in such an institution or facility;

(B) the assets—

(i) were transferred to the individual's spouse or to another for the sole benefit of the individual's spouse,

(ii) were transferred from the individual's spouse to another for the sole benefit of the individual's spouse,

(iii) were transferred to, or to a trust (including a trust described in subsection (d)(4)) established solely for the benefit of, the individual's child described in subparagraph (A)(ii)(II), or

(iv) were transferred to a trust (including a trust described in subsection (d)(4)) established solely for the benefit of an individual under 65 years of age who is disabled (as defined in section 1382c(a)(3) of this title);

(C) a satisfactory showing is made to the State (in accordance with regulations promulgated by the Secretary) that (i) the individual intended to dispose of the assets either at fair market value, or for other valuable consideration, (ii) the assets were transferred exclusively for a purpose other than to qualify for medical assistance, or (iii) all assets transferred for less than fair market value have been returned to the individual; or

(D) the State determines, under procedures established by the State (in accordance with standards specified by the Secretary), that the denial of eligibility would work an undue hardship as determined on the basis of criteria established by the Secretary.

The procedures established under subparagraph (D) shall permit the facility in which the institutionalized individual is residing to file an undue hardship waiver application on behalf of the individual with the consent of the individual or the personal representative of the individual. While an application for an undue hardship waiver is pending under subparagraph (D) in the case of an individual who is a resident of a nursing facility, if the application meets such criteria as the Secretary specifies, the State may provide for payments for nursing facility services in order to hold the bed for the individual at the facility, but not in excess of payments for 30 days.

(3) For purposes of this subsection, in the case of an asset held by an individual in common with another person or persons in a joint tenancy, tenancy in common, or similar arrangement, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.

(4) A State (including a State which has elected treatment under section 1396a(f) of this title) may not provide for any period of ineligibility for an individual due to transfer of resources for less than fair market value except in accordance with this subsection. In the case of a transfer by the spouse of an individual which results in a period of ineligibility for medical assistance under a State plan for such individual, a State shall, using a reasonable methodology (as specified by the Secretary), apportion such period of ineligibility (or any portion of such period) among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under the State plan.

(5) In this subsection, the term "resources" has the meaning given such term in section 1382b of this title, without regard to the exclusion described in subsection (a)(1) thereof.

(d) Treatment of trust amounts

(1) For purposes of determining an individual's eligibility for, or amount of, benefits under a State plan under this subchapter, subject to paragraph (4), the rules specified in paragraph (3) shall apply to a trust established by such individual.

(2)(A) For purposes of this subsection, an individual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established such trust other than by will:

(i) The individual.

(ii) The individual's spouse.

(iii) A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse.

(iv) A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

(B) In the case of a trust the corpus of which includes assets of an individual (as determined under subparagraph (A)) and assets of any other person or persons, the provisions of this subsection shall apply to the portion of the trust attributable to the assets of the individual.

(C) Subject to paragraph (4), this subsection shall apply without regard to—

(i) the purposes for which a trust is established,

(ii) whether the trustees have or exercise any discretion under the trust,

(iii) any restrictions on when or whether distributions may be made from the trust, or

(iv) any restrictions on the use of distributions from the trust.

(3)(A) In the case of a revocable trust—

(i) the corpus of the trust shall be considered resources available to the individual,

(ii) payments from the trust to or for the benefit of the individual shall be considered income of the individual, and

(iii) any other payments from the trust shall be considered assets disposed of by the individual for purposes of subsection (c).

(B) In the case of an irrevocable trust—

(i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income—

(I) to or for the benefit of the individual, shall be considered income of the individual, and

(II) for any other purpose, shall be considered a transfer of assets by the individual subject to subsection (c); and

(ii) any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subsection (c), and the value of the trust shall be determined for purposes of such subsection by including the amount of any payments made from such portion of the trust after such date.

(4) This subsection shall not apply to any of the following trusts:

(A) A trust containing the assets of an individual under age 65 who is disabled (as defined in section 1382c(a)(3) of this title) and which is established for the benefit of such individual by the individual, a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.

(B) A trust established in a State for the benefit of an individual if—

(i) the trust is composed only of pension, Social Security, and other income to the individual (and accumulated income in the trust),

(ii) the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter; and

(iii) the State makes medical assistance available to individuals described in section 1396a(a)(10)(A)(ii)(V) of this title, but does not make such assistance available to individuals for nursing facility services under section 1396a(a)(10)(C) of this title.

(C) A trust containing the assets of an individual who is disabled (as defined in section 1382c(a)(3) of this title) that meets the following conditions:

(i) The trust is established and managed by a non-profit association.

(ii) A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts.

(iii) Accounts in the trust are established solely for the benefit of individuals who are disabled (as defined in section 1382c(a)(3) of this title) by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court.

(iv) To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under the State plan under this subchapter.

(5) The State agency shall establish procedures (in accordance with standards specified by the Secretary) under which the agency waives the application of this subsection with respect to an individual if the individual establishes that such application would work an undue hardship on the individual as determined on the basis of criteria established by the Secretary.

(6) The term "trust" includes any legal instrument or device that is similar to a trust but includes an annuity only to such extent and in such manner as the Secretary specifies.

(e) Disclosure and treatment of annuities

(1) In order to meet the requirements of this section for purposes of section 1396a(a)(18) of this title, a State shall require, as a condition for the provision of medical assistance for services described in subsection (c)(1)(C)(i) (relating to long-term care services) for an individual, the application of the individual for such assistance (including any recertification of eligibility for such assistance) shall disclose a description of any interest the individual or community spouse has in an annuity (or similar financial instrument, as may be specified by the Secretary), regardless of whether the annuity is irrevocable or is treated as an asset. Such application or recertification form shall include a statement that under paragraph (2) the State becomes a remainder beneficiary under such an annuity or similar financial instrument by virtue of the provision of such medical assistance.

(2)(A) In the case of disclosure concerning an annuity under subsection (c)(1)(F), the State shall notify the issuer of the annuity of the right of the State under such subsection as a preferred remainder beneficiary in the annuity for medical assistance furnished to the individual. Nothing in this paragraph shall be construed as preventing such an issuer from notifying persons with any other remainder interest of the State's remainder interest under such subsection.

(B) In the case of such an issuer receiving notice under subparagraph (A), the State may require the issuer to notify the State when there is a change in the amount of income or principal being withdrawn from the amount that was being withdrawn at the time of the most recent disclosure described in paragraph (1). A State shall take such information into account in determining the amount of the State's obligations for medical assistance or in the individual's eligibility for such assistance.

(3) The Secretary may provide guidance to States on categories of transactions that may be treated as a transfer of asset for less than fair market value.

(4) Nothing in this subsection shall be construed as preventing a State from denying eligibility for medical assistance for an individual based on the income or resources derived from an annuity described in paragraph (1).

(f) Disqualification for long-term care assistance for individuals with substantial home equity

(1)(A) Notwithstanding any other provision of this subchapter, subject to subparagraphs (B) and (C) of this paragraph and paragraph (2), in determining eligibility of an individual for medical assistance with respect to nursing facility services or other long-term care services, the individual shall not be eligible for such assistance if the individual's equity interest in the individual's home exceeds $500,000.

(B) A State may elect, without regard to the requirements of section 1396a(a)(1) of this title (relating to statewideness) and section 1396a(a)(10)(B) of this title (relating to comparability), to apply subparagraph (A) by substituting for "$500,000", an amount that exceeds such amount, but does not exceed $750,000.

(C) The dollar amounts specified in this paragraph shall be increased, beginning with 2011, from year to year based on the percentage increase in the consumer price index for all urban consumers (all items; United States city average), rounded to the nearest $1,000.

(2) Paragraph (1) shall not apply with respect to an individual if—

(A) the spouse of such individual, or

(B) such individual's child who is under age 21, or (with respect to States eligible to participate in the State program established under subchapter XVI) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in section 1382c of this title,

is lawfully residing in the individual's home.

(3) Nothing in this subsection shall be construed as preventing an individual from using a reverse mortgage or home equity loan to reduce the individual's total equity interest in the home.

(4) The Secretary shall establish a process whereby paragraph (1) is waived in the case of a demonstrated hardship.

(g) Treatment of entrance fees of individuals residing in continuing care retirement communities

(1) In general

For purposes of determining an individual's eligibility for, or amount of, benefits under a State plan under this subchapter, the rules specified in paragraph (2) shall apply to individuals residing in continuing care retirement communities or life care communities that collect an entrance fee on admission from such individuals.

(2) Treatment of entrance fee

For purposes of this subsection, an individual's entrance fee in a continuing care retirement community or life care community shall be considered a resource available to the individual to the extent that—

(A) the individual has the ability to use the entrance fee, or the contract provides that the entrance fee may be used, to pay for care should other resources or income of the individual be insufficient to pay for such care;

(B) the individual is eligible for a refund of any remaining entrance fee when the individual dies or terminates the continuing care retirement community or life care community contract and leaves the community; and

(C) the entrance fee does not confer an ownership interest in the continuing care retirement community or life care community.

(h) Definitions

In this section, the following definitions shall apply:

(1) The term "assets", with respect to an individual, includes all income and resources of the individual and of the individual's spouse, including any income or resources which the individual or such individual's spouse is entitled to but does not receive because of action—

(A) by the individual or such individual's spouse,

(B) by a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or such individual's spouse, or

(C) by any person, including any court or administrative body, acting at the direction or upon the request of the individual or such individual's spouse.

(2) The term "income" has the meaning given such term in section 1382a of this title.

(3) The term "institutionalized individual" means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title.

(4) The term "noninstitutionalized individual" means an individual receiving any of the services specified in subsection (c)(1)(C)(ii).

(5) The term "resources" has the meaning given such term in section 1382b of this title, without regard (in the case of an institutionalized individual) to the exclusion described in subsection (a)(1) of such section.

(Aug. 14, 1935, ch. 531, title XIX, §1917, as added Pub. L. 97–248, title I, §132(b), Sept. 3, 1982, 96 Stat. 370; amended Pub. L. 97–448, title III, §309(b)(21), (22), Jan. 12, 1983, 96 Stat. 2410; Pub. L. 100–203, title IV, §4211(h)(12), Dec. 22, 1987, 101 Stat. 1330–207; Pub. L. 100–360, title III, §303(b), title IV, §411(l)(3)(I), July 1, 1988, 102 Stat. 760, 803; Pub. L. 100–485, title VI, §608(d)(16)(B), Oct. 13, 1988, 102 Stat. 2417; Pub. L. 101–239, title VI, §6411(e)(1), Dec. 19, 1989, 103 Stat. 2271; Pub. L. 103–66, title XIII, §§13611(a)–(c), 13612(a)–(c), Aug. 10, 1993, 107 Stat. 622–628; Pub. L. 109–171, title VI, §§6011(a), (b), (e), 6012(a)–(c), 6014(a), 6015(b), 6016(a)–(d), 6021(a)(1), Feb. 8, 2006, 120 Stat. 61–68; Pub. L. 109–432, div. B, title IV, §405(b)(1), Dec. 20, 2006, 120 Stat. 2998; Pub. L. 110–275, title I, §115(a), July 15, 2008, 122 Stat. 2507; Pub. L. 111–5, div. B, title V, §5006(c), Feb. 17, 2009, 123 Stat. 507; Pub. L. 113–67, div. A, title II, §202(b)(3), Dec. 26, 2013, 127 Stat. 1177; Pub. L. 114–255, div. A, title V, §5007(a), Dec. 13, 2016, 130 Stat. 1197; Pub. L. 115–123, div. E, title XII, §53102(b)(1), Feb. 9, 2018, 132 Stat. 298.)

Editorial Notes

References in Text

The Internal Revenue Code of 1986, referred to in subsecs. (b)(1)(C)(iii)(II) and (c)(1)(G)(i), is classified generally to Title 26, Internal Revenue Code.

Amendments

2018—Subsec. (a)(1)(A). Pub. L. 115–123, §53102(b)(1), repealed Pub. L. 113–67, §202(b)(3), and provided that the provisions amended by section 202(b) shall be applied and administered as if such amendment had never been enacted. See 2013 Amendment note below.

2016—Subsec. (d)(4)(A). Pub. L. 114–255 inserted "the individual," after "for the benefit of such individual by".

2013—Subsec. (a)(1)(A). Pub. L. 113–67, §202(b)(3), which directed amendment of subpar. (A) to read as follows: "pursuant to—

"(i) the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or

"(ii) rights acquired by or assigned to the State in accordance with section 1396a(a)(25)(H) of this title or section 1396k(a)(1)(A) of this title, or",

was repealed by Pub. L. 115–123, §53102(b)(1).

2009—Subsec. (b)(3). Pub. L. 111–5 designated existing provisions as subpar. (A) and added subpar. (B).

2008—Subsec. (b)(1)(B)(ii). Pub. L. 110–275 inserted "(but not including medical assistance for medicare cost-sharing or for benefits described in section 1396a(a)(10)(E) of this title)" before period at end.

2006—Subsec. (b)(1)(C)(ii). Pub. L. 109–171, §6021(a)(1)(A)(i), inserted "and which satisfies clause (iv), or which has a State plan amendment that provides for a qualified State long-term care insurance partnership (as defined in clause (iii))" after "1993," in introductory provisions.

Subsec. (b)(1)(C)(iii) to (vi). Pub. L. 109–171, §6021(a)(1)(A)(ii), added cls. (iii) to (vi).

Subsec. (b)(5). Pub. L. 109–171, §6021(a)(1)(B), added par. (5).

Subsec. (c)(1)(B)(i). Pub. L. 109–171, §6011(a), inserted "or in the case of any other disposal of assets made on or after February 8, 2006" before ", 60 months".

Subsec. (c)(1)(D). Pub. L. 109–171, §6011(b), designated existing provisions as cl. (i), substituted "In the case of a transfer of asset made before February 8, 2006, the date" for "The date", and added cl. (ii).

Subsec. (c)(1)(E)(iv). Pub. L. 109–171, §6016(a), added cl. (iv).

Subsec. (c)(1)(F). Pub. L. 109–171, §6012(b), added subpar. (F).

Subsec. (c)(1)(F)(i). Pub. L. 109–432 substituted "institutionalized individual" for "annuitant".

Subsec. (c)(1)(G). Pub. L. 109–171, §6012(c), added subpar. (G).

Subsec. (c)(1)(H). Pub. L. 109–171, §6016(b), added subpar. (H).

Subsec. (c)(1)(I). Pub. L. 109–171, §6016(c), added subpar. (I).

Subsec. (c)(1)(J). Pub. L. 109–171, §6016(d), added subpar. (J).

Subsec. (c)(2). Pub. L. 109–171, §6011(e), substituted period for semicolon at end and inserted concluding provisions.

Subsec. (e). Pub. L. 109–171, §6012(a), added subsec. (e). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 109–171, §6014(a), added subsec. (f). Former subsec. (f) redesignated (g).

Pub. L. 109–171, §6012(a), redesignated subsec. (e) as (f).

Subsec. (g). Pub. L. 109–171, §6015(b), added subsec. (g). Former subsec. (g) redesignated (h).

Pub. L. 109–171, §6014(a), redesignated subsec. (f) as (g).

Subsec. (h). Pub. L. 109–171, §6015(b), redesignated subsec. (g) as (h).

1993—Subsec. (b)(1). Pub. L. 103–66, §13612(a), substituted "except that the State shall seek adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan in the case of the following individuals:" and subpars. (A) to (C) for "except—" and former subpars. (A) and (B) which read as follows:

"(A) in the case of an individual described in subsection (a)(1)(B) of this section, from his estate or upon sale of the property subject to a lien imposed on account of medical assistance paid on behalf of such individual, and

"(B) in the case of any other individual who was 65 years of age or older when he received such assistance, from his estate."

Subsec. (b)(3). Pub. L. 103–66, §13612(b), added par. (3).

Subsec. (b)(4). Pub. L. 103–66, §13612(c), added par. (4).

Subsec. (c)(1). Pub. L. 103–66, §13611(a)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "In order to meet the requirements of this subsection (for purposes of section 1396a(a)(51)(B) of this title), the State plan must provide for a period of ineligibility for nursing facility services and for a level of care in a medical institution equivalent to that of nursing facility services and for services under section 1396n(c) of this title in the case of an institutionalized individual (as defined in paragraph (3)) who, or whose spouse, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State plan on such date) or, if the individual is not so entitled, the date the individual applies for such assistance while an institutionalized individual, disposed of resources for less than fair market value. The period of ineligibility shall begin with the month in which such resources were transferred and the number of months in such period shall be equal to the lesser of—

"(A) 30 months, or

"(B)(i) the total uncompensated value of the resources so transferred, divided by (ii) the average cost, to a private patient at the time of the application, of nursing facility services in the State or, at State option, in the community in which the individual is institutionalized."

Subsec. (c)(2)(A). Pub. L. 103–66, §13611(a)(2)(A), substituted "assets" for "resources" in introductory provisions.

Subsec. (c)(2)(B). Pub. L. 103–66, §13611(a)(2)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "the resources were transferred (i) to or from (or to another for the sole benefit of) the individual's spouse, or (ii) to the individual's child described in subparagraph (A)(ii)(II);".

Subsec. (c)(2)(C). Pub. L. 103–66, §13611(a)(2)(C), in introductory provisions, substituted "with regulations" for "with any regulations", in cl. (i), substituted "assets" for "resources" and struck out "or" at end, in cl. (ii), substituted "assets" for "resources" and ", or" for "; or", and added cl. (iii).

Subsec. (c)(2)(D). Pub. L. 103–66, §13611(a)(2)(D), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "the State determines that denial of eligibility would work an undue hardship."

Subsec. (c)(3). Pub. L. 103–66, §13611(a)(2)(E), added par. (3) and struck out former par. (3) which read as follows: "In this subsection, the term 'institutionalized individual' means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title."

Subsec. (c)(4). Pub. L. 103–66, §13611(a)(2)(F), inserted at end "In the case of a transfer by the spouse of an individual which results in a period of ineligibility for medical assistance under a State plan for such individual, a State shall, using a reasonable methodology (as specified by the Secretary), apportion such period of ineligibility (or any portion of such period) among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under the State plan."

Subsec. (d). Pub. L. 103–66, §13611(b), added subsec. (d).

Subsec. (e). Pub. L. 103–66, §13611(c), added subsec. (e).

1989—Subsec. (c)(1). Pub. L. 101–239, §6411(e)(1)(A), inserted "or whose spouse," after "an institutionalized individual (as defined in paragraph (3)) who,".

Subsec. (c)(2)(B)(i). Pub. L. 101–239, §6411(e)(1)(B)(i), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: "to (or to another for the sole benefit of) the community spouse, as defined in section 1396r–5(h)(2) of this title,,".

Subsec. (c)(2)(B)(ii), (iii). Pub. L. 101–239, §6411(e)(1)(B)(ii), struck out ", or" after "subparagraph (A)(ii)(II)" in cl. (ii) and struck out cl. (iii) which read as follows: "to (or to another for the sole benefit of) the individual's spouse if such spouse does not transfer such resources to another person other than the spouse for less than fair market value".

1988—Subsec. (c). Pub. L. 100–360, §303(b), amended subsec. (c) generally, substituting pars. (1) to (4) relating to taking into account certain transfers of assets, for former pars. (1) to (3) relating to denial of medical assistance, period of eligibility, and exceptions.

Subsec. (c)(1). Pub. L. 100–485, §608(d)(16)(B)(i), substituted "period of ineligibility for nursing facility services and for a level of care in a medical institution equivalent to that of nursing facility services and for services under section 1396n(c) of this title in the case of an institutionalized individual (as defined in paragraph (3)) who, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State plan on such date) or, if the individual is not so entitled, the date the individual applies for such assistance while an institutionalized individual" for "period of ineligibility in the case of an institutionalized individual (as defined in paragraph (3)) who, at any time during the 30-month period immediately before the individual's application for medical assistance under the State plan".

Subsec. (c)(2)(A)(ii). Pub. L. 100–485, §608(d)(16)(B)(ii), inserted subcl. (I) and (II) designations.

Subsec. (c)(2)(A)(iii). Pub. L. 100–485, §608(d)(16)(B)(iii), substituted "the individual becomes an institutionalized individual" for "of the individual's admission to the medical institution or nursing facility".

Subsec. (c)(2)(A)(iv). Pub. L. 100–485, §608(d)(16)(B)(iv), substituted "the individual becomes an institutionalized individual" for "of such individual's admission to the medical institution or nursing facility".

Subsec. (c)(2)(B). Pub. L. 100–485, §608(d)(16)(B)(v), inserted cl. (i) designation, substituted "section 1396r–5(h)(2) of this title,," for "section 1396r–5(h)(2) of this title, or the individual's child who is blind or permanently and totally disabled", and added cl. (ii).

Subsec. (c)(2)(B)(ii). Pub. L. 100–360, §411(l)(3)(I), amended Pub. L. 100–203, §4211(h)(12)(B), see 1987 Amendment note below.

Subsec. (c)(3). Pub. L. 100–485, §608(d)(16)(B)(vi), substituted "in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) of this title" for "in a medical institution or nursing facility".

Subsec. (c)(5). Pub. L. 100–485, §608(d)(16)(B)(vii), added par. (5).

1987—Subsecs. (a)(1)(B)(i), (c)(2)(B)(i). Pub. L. 100–203, §4211(h)(12)(A), substituted "nursing facility, intermediate care facility for the mentally retarded" for "skilled nursing facility, intermediate care facility".

Subsec. (c)(2)(B)(ii). Pub. L. 100–203, §4211(h)(12)(B), as amended by Pub. L. 100–360, §411(l)(3)(I), substituted "a nursing facility" for "a skilled nursing facility" in two places each in subcls. (I) and (II).

1983—Subsec. (b)(2)(B). Pub. L. 97–448, §309(b)(21), substituted "who" for "and" before "has lawfully resided".

Subsec. (c)(2)(B)(iii). Pub. L. 97–448, §309(b)(22), substituted in subcl. (I) "can" for "cannot" and struck out from subcl. (IV) the introductory word "if".

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Pub. L. 115–123, div. E, title XII, §53102(b)(1), Feb. 9, 2018, 132 Stat. 298, provided that the repeal of section 202(b) of Pub. L. 113–67 is effective Sept. 30, 2017, and the provisions amended by section 202(b) shall be applied and administered as if such amendments had never been enacted. In addition, such repeal by section 53102(b)(1) of Pub. L. 115–123 applicable with respect to any open claims, including claims pending, generated, or filed, after Sept. 30, 2017, see section 53102(b)(3) of Pub. L. 115–123, set out as a note under section 1396a of this title.

Effective Date of 2016 Amendment

Pub. L. 114–255, div. A, title V, §5007(b), Dec. 13, 2016, 130 Stat. 1197, provided that: "The amendment made by subsection (a) [amending this section] shall apply to trusts established on or after the date of the enactment of this Act [Dec. 13, 2016]."

Effective Date of 2009 Amendment

Amendment by Pub. L. 111–5 effective July 1, 2009, see section 5006(f) of Pub. L. 111–5, set out as a note under section 1396a of this title.

Effective Date of 2008 Amendment

Pub. L. 110–275, title I, §115(b), July 15, 2008, 122 Stat. 2507, provided that: "The amendment made by subsection (a) [amending this section] shall take effect as of January 1, 2010."

Effective Date of 2006 Amendment

Pub. L. 109–432, div. B, title IV, §405(b)(2), Dec. 20, 2006, 120 Stat. 2998, provided that: "The amendment made by paragraph (1) [amending this section] shall be effective as if included in the enactment of section 6012 of the Deficit Reduction Act of 2005 [Pub. L. 109–171]."

Pub. L. 109–171, title VI, §6011(c), Feb. 8, 2006, 120 Stat. 62, provided that: "The amendments made by this section [amending this section] shall apply to transfers made on or after the date of the enactment of this Act [Feb. 8, 2006]."

Pub. L. 109–171, title VI, §6012(d), Feb. 8, 2006, 120 Stat. 64, provided that: "The amendments made by this section [amending this section] shall apply to transactions (including the purchase of an annuity) occurring on or after the date of the enactment of this Act [Feb. 8, 2006]."

Pub. L. 109–171, title VI, §6014(b), Feb. 8, 2006, 120 Stat. 65, provided that: "The amendment made by subsection (a) [amending this section] shall apply to individuals who are determined eligible for medical assistance with respect to nursing facility services or other long-term care services based on an application filed on or after January 1, 2006."

Pub. L. 109–171, title VI, §6016(e), Feb. 8, 2006, 120 Stat. 67, provided that:

"(1) In general.—Except as provided in paragraphs (2) and (3), the amendments made by this section [amending this section] shall apply to payments under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) for calendar quarters beginning on or after the date of enactment of this Act [Feb. 8, 2006], without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

"(2) Exceptions.—The amendments made by this section shall not apply—

"(A) to medical assistance provided for services furnished before the date of enactment;

"(B) with respect to assets disposed of on or before the date of enactment of this Act; or

"(C) with respect to trusts established on or before the date of enactment of this Act.

"(3) Extension of effective date for state law amendment.—In the case of a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) which the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet the additional requirements imposed by the amendments made by a provision of this section, the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session is considered to be a separate regular session of the State legislature."

Effective Date of 1993 Amendment

Pub. L. 103–66, title XIII, §13611(e), Aug. 10, 1993, 107 Stat. 627, provided that:

"(1) The amendments made by this section [amending this section and sections 1396a and 1396r–5 of this title] shall apply, except as provided in this subsection, to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after October 1, 1993, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

"(2) The amendments made by this section shall not apply—

"(A) to medical assistance provided for services furnished before October 1, 1993,

"(B) with respect to assets disposed of on or before the date of the enactment of this Act [Aug. 10, 1993], or

"(C) with respect to trusts established on or before the date of the enactment of this Act.

"(3) In the case of a State plan for medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendment made by subsection (b) [amending this section], the State plan shall not be regarded as failing to comply with the requirements imposed by such amendment solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 10, 1993]. For purposes of the preceding sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature."

Pub. L. 103–66, title XIII, §13612(d), Aug. 10, 1993, 107 Stat. 628, provided that:

"(1)(A) Except as provided in subparagraph (B), the amendments made by this section [amending this section] shall apply to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after October 1, 1993, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

"(B) In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendments made by this section, the State plan shall not be regarded as failing to comply with the requirements imposed by such amendments solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act [Aug. 10, 1993]. For purposes of the preceding sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.

"(2) The amendments made by this section shall not apply to individuals who died before October 1, 1993."

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–239 applicable to transfers occurring after Dec. 19, 1989, see section 6411(e)(4) of Pub. L. 101–239, set out as a note under section 1396a of this title.

Effective Date of 1988 Amendments

Amendment by Pub. L. 100–485 effective as if included in the enactment of the Medicare Catastrophic Coverage Act of 1988, Pub. L. 100–360, see section 608(g)(1) of Pub. L. 100–485, set out as a note under section 704 of this title.

Amendment by section 303(b) of Pub. L. 100–360 applicable to payments under this subchapter for calendar quarters beginning on or after July 1, 1988 (except in certain situations requiring State legislative action), without regard to whether or not final regulations to carry out such amendment have been promulgated by such date, and subsection (c) of this section, as amended by section 303(b) of Pub. L. 100–360, applicable to resources disposed of on or after July 1, 1988, but not applicable with respect to inter-spousal transfers occurring before Oct. 1, 1989, see section 303(g)(2), (5) of Pub. L. 100–360, set out as an Effective Date note under section 1396r–5 of this title.

Except as specifically provided in section 411 of Pub. L. 100–360, amendment by section 411(l)(3)(I) of Pub. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, effective as if included in the enactment of that provision in Pub. L. 100–203, see section 411(a) of Pub. L. 100–360, set out as a Reference to OBRA; Effective Date note under section 106 of Title 1, General Provisions.

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–203 applicable to nursing facility services furnished on or after Oct. 1, 1990, without regard to whether regulations implementing such amendment are promulgated by such date, except as otherwise specifically provided in section 1396r of this title, with transitional rule, see section 4214(a), (b)(2) of Pub. L. 100–203, as amended, set out as an Effective Date note under section 1396r of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 97–448 effective as if originally included as a part of this section as this section was added by the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, see section 309(c)(2) of Pub. L. 97–448, set out as a note under section 426–1 of this title.

Effective Date

Pub. L. 97–248, title I, §132(d), Sept. 3, 1982, 96 Stat. 373, provided that: "The amendments made by this section [enacting this section and amending section 1396a of this title] shall become effective on the date of the enactment of this Act [Sept. 3, 1982], but the provisions of section 1917(c)(2)(B) of the Social Security Act [42 U.S.C. 1396p(c)(2)(B)] shall not apply with respect to a transfer of assets which took place prior to such date of enactment."

Availability of Hardship Waivers

Pub. L. 109–171, title VI, §6011(d), Feb. 8, 2006, 120 Stat. 62, provided that: "Each State shall provide for a hardship waiver process in accordance with section 1917(c)(2)(D) of the Social Security Act (42 U.S.C. 1396p(c)(2)(D))—

"(1) under which an undue hardship exists when application of the transfer of assets provision would deprive the individual—

"(A) of medical care such that the individual's health or life would be endangered; or

"(B) of food, clothing, shelter, or other necessities of life; and

"(2) which provides for—

"(A) notice to recipients that an undue hardship exception exists;

"(B) a timely process for determining whether an undue hardship waiver will be granted; and

"(C) a process under which an adverse determination can be appealed."

Expansion of State Long-Term Care Partnership Program

Pub. L. 109–171, title VI, §6021, Feb. 8, 2006, 120 Stat. 68, as amended by Pub. L. 111–148, title VIII, §8002(d), title X, §10801(c), Mar. 23, 2010, 124 Stat. 847, 1015; Pub. L. 112–240, title VI, §642(b)(3), Jan. 2, 2013, 126 Stat. 2358, provided that:

"(a) Expansion Authority.—

"(1) In general.—[Amended this section.]

"(2) State reporting requirements.—Nothing in clauses (iii)(VI) and (v) of section 1917(b)(1)(C) of the Social Security Act [42 U.S.C. 1396p(b)(1)(C)(iii)(VI), (v)] (as added by paragraph (1)) shall be construed as prohibiting a State from requiring an issuer of a long-term care insurance policy sold in the State (regardless of whether the policy is issued under a qualified State long-term care insurance partnership under section 1917(b)(1)(C)(iii) of such Act) to require the issuer to report information or data to the State that is in addition to the information or data required under such clauses.

"(3) Effective date.—A State plan amendment that provides for a qualified State long-term care insurance partnership under the amendments made by paragraph (1) may provide that such amendment is effective for long-term care insurance policies issued on or after a date, specified in the amendment, that is not earlier than the first day of the first calendar quarter in which the plan amendment was submitted to the Secretary of Health and Human Services.

"(b) Standards for Reciprocal Recognition Among Partnership States.—In order to permit portability in long-term care insurance policies purchased under State long-term care insurance partnerships, the Secretary of Health and Human Services shall develop, not later than January 1, 2007, and in consultation with the National Association of Insurance Commissioners, issuers of long-term care insurance policies, States with experience with long-term care insurance partnership plans, other States, and representatives of consumers of long-term care insurance policies, standards for uniform reciprocal recognition of such policies among States with qualified State long-term care insurance partnerships under which—

"(1) benefits paid under such policies will be treated the same by all such States; and

"(2) States with such partnerships shall be subject to such standards unless the State notifies the Secretary in writing of the State's election to be exempt from such standards.

"(c) Annual Reports to Congress.—

"(1) In general.—The Secretary of Health and Human Services shall annually report to Congress on the long-term care insurance partnerships established in accordance with section 1917(b)(1)(C)(ii) of the Social Security Act (42 U.S.C. 1396p(b)(1)(C)(ii)) (as amended by subsection (a)(1)). Such reports shall include analyses of the extent to which such partnerships expand or limit access of individuals to long-term care and the impact of such partnerships on Federal and State expenditures under the Medicare and Medicaid programs. Nothing in this section shall be construed as requiring the Secretary to conduct an independent review of each long-term care insurance policy offered under or in connection with such a partnership.

"(2) Appropriation.—Out of any funds in the Treasury not otherwise appropriated, there is appropriated to the Secretary of Health and Human Services, $1,000,000 for the period of fiscal years 2006 through 2010 to carry out paragraph (1).

"(d) National Clearinghouse for Long-Term Care Information.—

"(1) Establishment.—The Secretary of Health and Human Services shall establish a National Clearinghouse for Long-Term Care Information. The Clearinghouse may be established through a contract or interagency agreement.

"(2) Duties.—

"(A) In general.—The National Clearinghouse for Long-Term Care Information shall—

"(i) educate consumers with respect to the availability and limitations of coverage for long-term care under the Medicaid program and provide contact information for obtaining State-specific information on long-term care coverage, including eligibility and estate recovery requirements under State Medicaid programs;

"(ii) provide objective information to assist consumers with the decisionmaking process for determining whether to purchase long-term care insurance or to pursue other private market alternatives for purchasing long-term care and provide contact information for additional objective resources on planning for long-term care needs; and

"(iii) maintain a list of States with State long-term care insurance partnerships under the Medicaid program that provide reciprocal recognition of long-term care insurance policies issued under such partnerships.

"(B) Requirement.—In providing information to consumers on long-term care in accordance with this subsection, the National Clearinghouse for Long-Term Care Information shall not advocate in favor of a specific long-term care insurance provider or a specific long-term care insurance policy.

"(3) Appropriation.—Out of any funds in the Treasury not otherwise appropriated, there is appropriated to carry out this subsection, $3,000,000 for each of fiscal years 2006 through 2010."