7120 Federal Register / Vol. 60, No. 25 / Tuesday, February 7, 1995 / Rules and Regulations

We are adopting in the final rule the

commenter’s recommendation to require

AAJs to consider all requests for

Appeals Council review in cases in

which judicial review would be

precluded by the monetary amount at

issue. This change from the proposed

rule is consistent with our overall

intent, which is to empower Appeals

Officers to deny requests for review of

hearing decisions when such action

results in a final decision on which the

claimant has a right to seek judicial

review under section 205(g) of the Act.

To adopt this recommendation, we are

making a change in the final rule to

specify an additional category of cases

in which the authority to deny a request

for review will remain exclusively with

the AAJ.

The change we are making in the final

rule, see below, reserves to the AAJs

exclusive authority to deny a request for

review of an ALJ hearing decision in

any case in which the Secretary’s final

decision after an ALJ hearing is not

subject to judicial review. Such cases

are identified in § 422.210(a) and

include cases under title XI as well as

cases under title XVIII.

There is no right to judicial review

under section 205(g) of the Act where

the Appeals Council denies a party’s

request that the Council review and

vacate an ALJ’s dismissal of a request

for a hearing (because there is no final

decision of the Secretary after an ALJ

hearing in these instances). Where a

request for a hearing is dismissed based

on application of a monetary minimum

and the Council denies a request for

review, the monetary minimum

effectively precludes judicial review.

The final rule, like the proposed rule,

addresses the commenter’s concerns

regarding the exercise of the Council’s

authority to deny a request for review in

such cases since it provides that only

AAJs will have authority to deny a

request for review of an ALJ dismissal

of a request for a hearing.

Change in the Final Rule

After considering the comments on

the NPRM, we are publishing a final

rule that differs in one respect from the

proposed rule. The second sentence of

§ 422.205(c) as proposed stated: ‘‘The

denial of a request for review of a

hearing dismissal, the dismissal of a

request for review, or the refusal of a

request to reopen a hearing or Appeals

Council decision concerning a

determination under § 422.203(a)(1)

shall be by such member or members of

the Appeals Council as may be

designated in the manner prescribed by

the Chair or Deputy Chair.’’ For the

reasons discussed above, we are revising

that sentence in the final regulation to

state: ‘‘The denial of a request for review

of a hearing dismissal, the dismissal of

a request for review, the denial of a

request for review of a hearing decision

whenever such hearing decision after

such denial would not be subject to

judicial review as explained in

§ 422.210(a), or the refusal of a request

to reopen a hearing or Appeals Council

decision concerning a determination

under § 422.203(a)(1) shall be by such

member or members of the Appeals

Council as may be designated in the

manner prescribed by the Chair or

Deputy Chair.’’

Regulatory Procedures

Executive Order No. 12866

We have consulted with the Office of

Management and Budget (OMB) and

determined that this rule does not meet

the criteria for a significant regulatory

action under Executive Order 12866.

Thus, the rule is not subject to OMB

review.

Regulatory Flexibility Act

We generally prepare a regulatory

flexibility analysis that is consistent

with the Regulatory Flexibility Act

(RFA) (5 U.S.C. 601 through 612) unless

the Secretary certifies that a rule will

not have a significant economic impact

on a substantial number of small

entities. Individuals are not included in

the definition of a small entity.

However, for the purposes of the RFA,

we consider the majority of Medicare

providers, physicians and suppliers to

be small entities.

Inasmuch as the final rule does not

alter the standards for Appeals Council

review, we believe that it will have

little, if any, effect on providers,

physicians and suppliers which request

Appeals Council review of Medicare

claims. Accordingly, we have

determined, and the Secretary certifies,

that this final rule will not result in a

significant economic impact on a

substantial number of small entities.

Therefore, we have not prepared an RFA

analysis.

Paperwork Reduction Act

This regulation imposes no new

reporting or recordkeeping requirements

requiring OMB clearance.

(Catalog of Federal Domestic Assistance

Program Nos. 93.773 Medicare-Hospital

Insurance; 93.774 Medicare-Supplementary

Medical Insurance; 93.802 Social SecurityDisability Insurance; 93.803 Social SecurityRetirement Insurance; 93.804 Social SecuritySpecial Benefits for Persons Age 72 and Over;

93.805 Social Security-Survivors Insurance;

93.806 Special Benefits for Disabled Coal

Miners; and 93.807 Supplemental Security

Income.)

List of Subjects in 20 CFR Part 422

Administrative Practice and

Procedure, Freedom of Information,

Organization and Functions

(government agencies), Social Security,

Reporting and recordkeeping

requirements.

Dated: November 10, 1994.

Shirley Chater,

Commissioner of Social Security.

Approved: January 31, 1995.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set out in the

preamble, we are amending Part 422 of

Chapter III of Title 20 of the Code of

Federal Regulations as follows:

PART 422—ORGANIZATION AND

PROCEDURES

1. The authority citation for Subpart

C continues to read as follows:

Authority: Secs. 205, 221, 1102, 1869, and

1871 of the Social Security Act; 42 U.S.C.

405, 421, 1302, 1395ff, and 1395hh; sec.

413(b) of the Federal Mine Safety and Health

Act of 1977; 30 U.S.C. 923(b).

2. Section 422.205 is amended by

revising paragraph (c) to read as follows:

§ 422.205 Review by Appeals Council.

* * * * *

(c) The denial of a request for review

of a hearing decision concerning a

determination under § 422.203(a)(1)

shall be by such appeals officer or

appeals officers or by such member or

members of the Appeals Council as may

be designated in the manner prescribed

by the Chair or Deputy Chair. The

denial of a request for review of a

hearing dismissal, the dismissal of a

request for review, the denial of a

request for review of a hearing decision

whenever such hearing decision after

such denial would not be subject to

judicial review as explained in

§ 422.210(a), or the refusal of a request

to reopen a hearing or Appeals Council

decision concerning a determination

under § 422.203(a)(1) shall be by such

member or members of the Appeals

Council as may be designated in the

manner prescribed by the Chair or

Deputy Chair.

* * * * *

[FR Doc. 95–2946 Filed 2–6–95; 8:45 am]

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