32346 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

waste program revisions satisfy all of

the requirements necessary to qualify

for final authorization. Consequently,

EPA intends to approve final

authorization for Nevada’s hazardous

waste program revisions. The public

may submit written comments on EPA’s

immediate final decision up until July

24, 1996. Copies of Nevada’s

applications for program revision are

available for inspection and copying at

the locations indicated in the

ADDRESSES section of this notice.

Approval of Nevada’s program

revisions is effective in 60 days unless

an adverse comment pertaining to the

State’s revisions discussed in this notice

is received by the end of the comment

period. If an adverse comment is

received, EPA will publish either (1) a

withdrawal of the immediate final

decision or (2) a notice containing a

response to the comment which either

affirms that the immediate final

decision takes effect or reverses the

decision.

Nevada is applying for authorization

for changes and additions to the Federal

RCRA implementing regualtions that

occurred between July 1, 1994 and July

1, 1995, including the following Federal

hazardous waste regulations:

Federal requirement State analog

Recovered oil exclusion; (59 FR 38536, July 28, 1994) ................................................................................................ Nevada Revised Statutes

(NRS) 459.485 and

459.490; Nevada Administrative Code (NAC)

444.8632 through

444.8634 and regulations

included as Section 4 of

LCB File No. R027–95.

Removal of the conditional exemption for certain slag residues; (59 FR 43496, August 24, 1994) ............................. Same as above.

Universal treatment standards and treatment standards for organic toxicity characteristic wastes and newly listed

wastes; (59 FR 47982, September 19, 1994).

Same as above.

Organic air emission standards for tanks, surface impoundments, and containers; amendment; (59 FR 62896, December 6, 1994 and 60 FR 26828, May 19, 1995).Same as above.

Hazardous Waste Management System; Testing and monitoring activities amendment I; (60 FR 3089, January 13,

1995).

Same as above.

Carbamate production identification and listing of hazardous waste; (60 FR 7824, February 9, 1995) ....................... Same as above.

Hazardous Waste Management System; Testing and monitoring activities amendment II; (60 FR 17001, April 4,

1995).

Same as above.

Universal Waste Rule; (60 FR 25492, May 11, 1995) Removal of legally obsolete rules; (60 FR 33912, June 29,

1995).

Same as above.

NOTE: NRS 459.485 effective 1981, amended 1991; NRS 459.490 effective 1981, amended 1987. NAC 444.8632 adopts by reference 40 CFR

part 2, subpart A; part 124, subparts A and B; parts 260 through 270, inclusive; part 273 and part 279 as modified by NAC 444.8633, NAC

444.8634, 444.86325 and the regulations included as Section 4 of LCB file no. R027–95 (filed with the Secretary of State on November 9, 1995).

Nevada agrees to review all State

hazardous waste permits which have

been issued under State law prior to the

effective date of this authorization.

Nevada agrees to then modify or revoke

and reissue such permits as necessary to

require compliance with the amended

State program. The modifications or

revocation and reissuance will be

scheduled in the annual State Grant

Work Plan.

Nevada is not being authorized to

operate any portion of the hazardous

waste program on Indian lands.

C. Decision

I conclude that Nevada’s application

for program revision meets all of the

statutory and regulatory requirements

established by RCRA. Accordingly,

Nevada is granted final authorization to

operate its hazardous waste program as

revised.

Nevada is now responsible for

permitting treatment, storage, and

disposal facilities within its borders and

carrying out the aspects of the RCRA

program described in its revised

program application, subject to the

limitations of the Hazardous and Solid

Waste Amendments of 1984 (Public Law

98–616, November 8, 1984) (‘‘HSWA’’).

Nevada also has primary enforcement

responsibilities, although EPA retains

the right to conduct inspections under

section 3007 of RCRA and to take

enforcement actions under section 3008,

3013 and 7003 of RCRA.

Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of Section 6 of Executive

Order 12866.

Certification Under the Regulatory

Flexibility Act

Pursuant to the provisions of 5 USC

605(b), I hereby certify that this

authorization will not have a significant

economic impact on a substantial

number of small entities. This

authorization effectively suspends the

applicability of certain Federal

regulations in favor of Nevada’s

program, thereby eliminating

duplicative requirements for handlers of

hazardous waste in the State. It does not

impose any new burdens on small

entities. This rule, therefore, does not

require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 271

Environmental Protection,

Administrative practice and procedure,

Confidential business information,

Hazardous materials transportation,

Hazardous waste, Indian lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Authority: This notice is issued under the

authority of Sections 2002(a), 3006 and

7004(b) of the Solid Waste Disposal Act as

amended 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: May 20, 1996.

Felicia Marcus,

Regional Administrator.

[FR Doc. 96–13986 Filed 6–21–96; 8:45 am]

BILLING CODE 6560–50–P
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32347

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 405, 417, 431, 473, and

498

[BPD–704–FC]

Medicare and Medicaid Programs;

Provider Appeals: Technical

Amendments

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Final rule with comment period.

SUMMARY: This rule amends the HCFA

regulations pertaining to appeals

procedures available to providers and

suppliers dissatisfied with

determinations that affect their

participation in Medicare or Medicaid.

These are technical amendments that

simplify, clarify, and update existing

rules without substantive change.

DATES: Effective date: July 24, 1996.

Comment date: August 23, 1996.

ADDRESSES: Please mail written

comments (an original and three copies)

to the following address: Health Care

Financing Administration, Department

of Health and Human Services,

Attention: BPD–704–FC, P.O. Box

26676, Baltimore, MD 21207,

If you prefer, you may deliver your

comments (original and three copies) to

either of the following addresses:

Room 309–G, Hubert H. Humphrey

Building, 200 Independence Avenue,

SW, Washington, DC 20201

Room C5–09–26 7500 Security

Boulevard, Baltimore, MD 21244–

1850.

Because of staffing and resource

limitations, we cannot accept comments

by facsimile (FAX) transmission. In

commenting, please refer to file code

BPD–704–FC. Comments received

timely will be available for public

inspection as they are received,

generally beginning approximately 3

weeks after publication of the

document, in Room 309–G of the

Department’s offices at 200

Independence Avenue, SW.,

Washington, DC, Monday through

Friday of each week from 8:30 a.m. to

5 p.m. (phone: (202) 690–7890).

FOR FURTHER INFORMATION CONTACT:

Luisa V. Iglesias, (202) 690–6383.

SUPPLEMENTARY INFORMATION:

A. Background

Part 498 of the HCFA regulations sets

forth the rules for administrative and

judicial review of Federal

determinations that affect participation

in Medicare and, in some instances, in

Medicaid. Part 431 of those regulations

sets forth the appeals procedures for

State determinations that affect

participation in Medicaid.

A final rule identified as HSQ–156–F

(Survey, Certification, and Enforcement

for Skilled Nursing Facilities and

Nursing Facilities), published on

November 10, 1994 (59 FR 56116)

amended both of those parts. The

changes made by HSQ–156–F

implement statutory amendments which

provide that, for long-term care facilities

with deficiencies, the State must

establish remedies to be imposed in lieu

of, or in addition to, termination of the

facility’s provider agreement.

B. Provisions of This Rule

This rule makes the following

technical and editorial changes:

1. Makes nomenclature changes

throughout chapter IV to reflect the fact

that review of a hearing decision is now

the responsibility of the Departmental

Appeals Board, not the Appeals

Council.

2. Simplifies and clarifies §§ 431.151

and 431.153 of the Medicaid appeals

regulations, primarily by putting related

content together and by providing

descriptive headings for more

paragraphs and paragraph subdivisions.

3. Updates § 498.1 (Statutory basis) to

conform to changes in the applicable

statutory provisions (for example,

section 1866(h) rather than 1869(c), and

section 1128A instead of previously

specified subsections of section

1866(b)(2)). This requires removal of

paragraph (e). Paragraph (f) is removed

because there have been changes in

delegations of authority and, since those

changes are likely to continue, it is not

possible to ensure that the paragraph

could always be kept up to date.

4. Amends § 498.2 (Definitions) to

substitute a definition of ‘‘Departmental

Appeals Board’’ for the definition of

‘‘Appeals Council’’, make the

conforming nomenclature changes, and

amend the definition of ‘‘provider’’ to

remove reference to ‘‘a nursing facility

(NF) or intermediate care facility for the

mentally retarded (ICF/MR)’’. These

Medicaid providers are not subject to all

part 498 provisions and are

appropriately covered in the Medicaid

rules and as indicated under items 6

and 7, below.

5. Expands § 498.3 (Scope and

applicability) to identify and give the

location of other rules that make the

part 498 provisions applicable to certain

determinations that do not affect

participation in Medicare.

6. Amends § 498.5 (Appeal rights) to

specify the appeal rights of NFs.

7. Amends §§ 498.60 (Conduct of

hearing) and 498.61 (Evidence) to make

clear that limits on the scope of review

in appeals from civil money penalties

affect the conduct of the hearing.

8. Amends § 498.74 (Administrative

Law Judge’s decision) to make the

nomenclature changes and to specify

that, for civil money penalties, judicial

review must be sought in a United

States Court of Appeals (rather than in

a United States District Court, as is the

case for other alternative sanctions).

9. Revises § 498.90 (Effect of

Departmental Appeals Board decision)

to simplify and clarify the policy. This

requires reorganization and moving

recently added content to a more

appropriate location, the section on

appeal rights, specifically current

paragraph (c) and new paragraph (k) of

§ 498.5.

C. Waiver of Proposed Rulemaking

The changes made by this rule are

technical and editorial in nature. They

simplify, clarify, and update certain

existing regulations without substantive

change. They have no impact on

program costs.

Accordingly, we find that prior notice

and opportunity for public comment are

unnecessary and contrary to the public

interest, and that, therefore, there is

good cause to waive proposed

rulemaking procedures.

However, as previously indicated, we

will consider timely comments from

anyone who believes that, in making the

technical and editorial changes, we have

unintentionally altered the substance.

Although we cannot respond to

comments individually, if we change

these rules as a result of comments, we

will discuss all timely comments in the

preamble to the revised rules.

D. Paperwork Reduction Act

This rule contains no information

collection requirements subject to

review by the Office of Management and

Budget under the Paperwork Reduction

Act.

E. Regulatory Impact Statement

Consistent with the Regulatory

Flexibility Act (RFA) and section

1102(b) of the Social Security Act, we

prepare a regulatory flexibility analysis

for each regulation unless we can certify

that the particular regulation will not

have a significant economic impact on

a substantial number of small entities,

or a significant impact on the operation

of a substantial number of small rural

hospitals.

The RFA defines ‘‘small entity’’ as a

small business, a nonprofit enterprise,

or a governmental jurisdiction (such as
32348 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

a county, city, or township) with a

population of less than 50,000. We also

consider all providers and suppliers of

services to be small entities. For

purposes of section 1102(b) of the Act,

we define small rural hospital as a

hospital that has fewer than 50 beds,

and is not located in a Metropolitan

Statistical Area.

We have not prepared a regulatory

flexibility analysis because we have

determined, and we certify, that this

rule will not have a significant impact

on a substantial number of small entities

or a significant impact on the operation

of a substantial number of small rural

hospitals.

In accordance with the provisions of

Executive Order 12866, this rule was

not reviewed by the Office of

Management and Budget.

List of Subjects

42 CFR Part 405

Administrative practice and

procedure, Health facilities, Health

professions, Kidney diseases, Medicare,

Reporting and record keeping

requirements, Rural areas, X-rays

42 CFR Part 417

Administrative practice and

procedure, Grant programs—health,

Health care, Health facilities Health

insurance, Health maintenance

organizations(HMOs), Loan programs—

health, Medicare, Reporting and record

keeping requirements.

42 CFR Part 431

Grant programs—health, Health

facilities, Medicaid, Privacy, Reporting

and recordkeeping requirements.

42 CFR Part 473

Administrative practice and

procedure, Health care, Health

professions, Peer review

organizations,(PROs), Reporting and

record keeping requirements.

42 CFR Part 498

Administrative practice and

procedure, Health facilities, Health

professions, Medicare, Reporting and

recordkeeping requirements.

42 CFR Chapter IV is amended as set

forth below.

PART 405—FEDERAL HEALTH

INSURANCE FOR THE AGED AND

DISABLED

A. Part 405, subpart G is amended as

set forth below.

1. The authority citation for subpart G

is revised to read as follows:

Authority: Secs. 1102, 1155, 1869(b), 1871,

1872, and 1879 of the Social Security Act (42

U.S.C. 1302, 1320c–4, 1395ff(b), 1395hh,

1395ii, and 1395pp).

§§ 405.718a, 405.718c, 405.718e, 405.724,

405.730, 405.750 [Amended]

2. In the following sections, ‘‘Appeals

Council’’ is revised to read

‘‘Departmental Appeals Board’’ each

time it appears: §§ 405.718 introductory

text, 405.718a(b)(4), 405.718c(a)(2)(ii),

405.718e, 405.724, 405.730, and 405.750

heading and paragraph (b) introductory

text.

B. Part 405, subpart H is amended as

set forth below.

1. The authority citation for subpart H

continues to read as follows:

Authority: Secs 1102, 1842(b)(3)(C),

1869(b), and 1871 of the Social Security Act

(42 U.S.C. 1302, 1395u(b)(3)(C), 1395ff(b),

and 1395hh).

§ 405.815 [Amended]

2. In § 405.815, ‘‘Appeals Council’’ is

revised to read ‘‘Departmental Appeals

Board’’.

PART 417—HEALTH MAINTENANCE

ORGANIZATIONS, COMPETITIVE

MEDICAL PLANS, AND HEALTH CARE

PREPAYMENT PLANS

C. Part 417 is amended as set forth

below.

1. The authority citation for part 417

continues to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh), Title XIII of the Public Health

Service Act (42 U.S.C. 300e through 300e–

17), and 31 U.S.C. 9701, unless otherwise

noted.

§§ 417.634, 417.636, 417.638, 417.830,

417.840 [Amended]

2. In the following sections, ‘‘Appeals

Council’’ is revised to read

‘‘Departmental Appeals Board’’:

§§ 417.634 heading and text, 417.636

paragraphs (a)(1), and (b) heading and

introductory text, 417.638, 417.830, and

417.840.

PART 431—STATE ORGANIZATION

AND GENERAL ADMINISTRATION

D. Part 431 is amended as set forth

below.

1. The authority citation for part 431

continues to read as follows:

Authority: Sec. 1102 of the Social Security

Act (42 U.S.C. 1302).

§ 431.151 [Revised]

2. Section 431.151 is revised to read

as follows:

Subpart D—Appeals Process

§ 431.151 Scope and applicability.

(a) General rules. This subpart sets

forth the appeals procedures that a State

must make available as follows:

(1) To a nursing facility (NF) that is

dissatisfied with a State’s finding of

noncompliance that has resulted in one

of the following adverse actions:

(i) Denial or termination of its

provider agreement.

(ii) Imposition of a civil money

penalty or other alternative remedy.

(2) To an intermediate care facility for

the mentally retarded (ICF/MR) that is

dissatisfied with a State’s finding of

noncompliance that has resulted in the

denial, termination, or nonrenewal of its

provider agreement.

(b) Special rules. This subpart also

sets forth the special rules that apply in

particular circumstances, the limitations

on the grounds for appeal, and the scope

of review during a hearing.

§ 431.152 [Amended]

3. In § 431.152, ‘‘§§ 431.153 through

431.154’’ is revised to read ‘‘§§ 431.153

and 431.154’’.

4. Section 431.153 is revised to read

as follows:

§ 431.153 Evidentiary hearing.

(a) Right to hearing. Except as

provided in paragraph (b) of this

section, and subject to the provisions of

paragraphs (c) through (j) of this section,

the State must give the facility a full

evidentiary hearing for any of the

actions specified in § 431.151.

(b) Limit on grounds for appeal. The

following are not subject to appeal:

(1) The choice of sanction or remedy.

(2) The State monitoring remedy.

(3) The loss of approval for a nurseaide training program.

(4) The level of noncompliance found

by a State except when a favorable final

administrative review decision would

affect the range of civil money penalty

amounts the State could collect.

(c) Notice of deficiencies and

impending remedies. The State must

give the facility a written notice that

includes:

(1) The basis for the decision; and

(2) A statement of the deficiencies on

which the decision was based.

(d) Request for hearing. The facility or

its legal representative or other

authorized official must file written

request for hearing within 60 days of

receipt of the notice of adverse action.

(e) Special rules: Denial, termination

or nonrenewal of provider agreement.

(1) Appeal by an ICF/MR. If an ICF/MR

requests a hearing on denial,

termination, or nonrenewal of its

provider agreement—

(i) The evidentiary hearing must be

completed either before, or within 120

days after, the effective date of the

adverse action; and

(ii) If the hearing is made available

only after the effective date of the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32349

action, the State must, before that date,

offer the ICF/MR an informal

reconsideration that meets the

requirements of § 431.154.

(2) Appeal by an NF. If an NF requests

a hearing on the denial or termination

of its provider agreement, the request

does not delay the adverse action and

the hearing need not be completed

before the effective date of the action.

(f) Special rules: Imposition of

remedies. If a State imposes a civil

money penalty or other remedies on an

NF, the following rules apply:

(1) Basic rule. Except as provided in

paragraph (f)(2) of this section (and

notwithstanding any provision of State

law), the State must impose all remedies

timely on the NF, even if the NF

requests a hearing.

(2) Exception. The State may not

collect a civil money penalty until after

the 60-day period for request of hearing

has elapsed or, if the NF requests a

hearing, until issuance of a final

administrative decision that supports

imposition of the penalty.

(g) Special rules: Dually participating

facilities. If an NF is also participating

or seeking to participate in Medicare as

an SNF, and the basis for the State’s

denial or termination of participation in

Medicaid is also a basis for denial or

termination of participation in

Medicare, the State must advise the

facility that—

(1) The appeals procedures specified

for Medicare facilities in part 498 of this

chapter apply; and

(2) A final decision entered under the

Medicare appeals procedures is binding

for both programs.

(h) Special rules: Adverse action by

HCFA. If HCFA finds that an NF is not

in substantial compliance and either

terminates the NF’s Medicaid provider

agreement or imposes alternative

remedies on the NF (because HCFA’s

findings and proposed remedies prevail

over those of the State in accordance

with § 488.452 of this chapter), the NF

is entitled only to the appeals

procedures set forth in part 498 of this

chapter, instead of the procedures

specified in this subpart.

(i) Required elements of hearing. The

hearing must include at least the

following:

(1) Opportunity for the facility—

(i) To appear before an impartial

decision-maker to refute the finding of

noncompliance on which the adverse

action was based;

(ii) To be represented by counsel or

other representative; and

(iii) To be heard directly or through

its representative, to call witnesses, and

to present documentary evidence.

(2) A written decision by the impartial

decision-maker, setting forth the reasons

for the decision and the evidence on

which the decision is based.

(j) Limits on scope of review: Civil

money penalty cases. In civil money

penalty cases—

(1) The State’s finding as to a NF’s

level of noncompliance must be upheld

unless it is clearly erroneous; and

(2) The scope of review is as set forth

in § 488.438(e) of this chapter.

§ 431.154 [Amended]

5. In § 431.154, the following changes

are made:

a. Paragraph (a) and the designation

‘‘(b)’’ are removed.

b. Paragraphs (b)(1), (b)(2), and (b)(3)

are redesignated as paragraphs (a), (b),

and (c), respectively.

PART 473—RECONSIDERATIONS AND

APPEALS

E. Part 473 is amended as set forth

below.

1. The authority citation for part 473

continues to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh).

§§ 473.22, 473.46, 473.48 [Amended]

2. In the following sections, ‘‘Appeals

Council’’ is revised to read

‘‘Departmental Appeals Board’’ each

time it appears: §§ 473.22(b)(5), 473.46

heading and paragraphs (a) and (b),

473.48 paragraphs (b) heading and text,

and (c).

PART 498—APPEALS PROCEDURES

FOR DETERMINATIONS THAT AFFECT

PARTICIPATION IN MEDICARE AND

FOR DETERMINATIONS THAT AFFECT

PARTICIPATION OF ICFs/MR AND

CERTAIN NFs IN MEDICAID

F. Part 498 is amended as set forth

below.

1. The authority citation for part 498

continues to read as follows:

Authority: Secs. 1102 and 1871 of the

Social Security Act (42 U.S.C. 1302 and

1395hh).

2. Nomenclature change.

a. In the following locations,

‘‘Appeals Council’’ is revised to read

‘‘Departmental Appeals Board’’

wherever it appears:

498.10(b).

498.15.

498.17 heading and paragraph (a).

498.44 paragraphs (a), (b), and (c).

498.45(c)(2).

498.71(b).

498.76 heading.

Subpart E heading.

498.80 heading and text.

498.82 heading and paragraphs (a)(1)

and (a)(2).

498.83 heading and paragraphs (a)

and (c).

498.85 heading and text.

498.86 (a).

498.88 heading and paragraph (a).

498.95(a).

Subpart F heading.

498.100 paragraphs (a), (b)(1), and

(b)(2).

498.102 paragraphs (a) introductory

text, and (b)(1), and (b)(2).

498.103 paragraphs (a), (b)(1), and

(b)(2) heading.

b. In the following locations,

‘‘Council’’ is revised to read ‘‘Board’’

wherever it appears:

498.17 paragraph (b)(1).

498.76 paragraphs (a) and (c).

498.82 paragraph (a)(2).

498.83 paragraph (b) introductory text

and paragraphs (b)(4) and (d).

498.86 paragraphs (a), (b), and (d).

498.88 paragraphs (a) through (e) and

paragraph (f) introductory text and

(f)(1)(i).

498.95 paragraphs (a) through (c).

498.100 heading and paragraph (a).

498.102 paragraph (a)(2)(ii).

498.103 paragraphs (a) and (b)(2).

c. In § 498.88(f)(1) introductory text

and (f)(2), and in § 498.95(a),

‘‘Council’s’’ is revised to read ‘‘Board’s’’.

d. In § 498.17(b)(2), ‘‘council’’ is

revised to read ‘‘Board’’.

§ 498.1 [Amended]

3. In § 498.1, the following changes

are made:

a. In paragraph (a), ‘‘1869(c)’’ is

revised to read ‘‘1866(h)’’.

b. In paragraph (c), ‘‘section’’ is

revised to read ‘‘sections’’, the period is

removed, and ‘‘and section 1128(f)

provides for hearing and judicial review

for exclusions.’’ is added at the end.

c. Paragraphs (e) and (f) are removed

and reserved.

d. Paragraphs (g) and (h) are revised,

and paragraphs (i), (j) and (k) are added,

to read as set forth below.

§ 498.1 Statutory basis.

* * * * *

(g) Although § 1866(h) of the Act is

silent regarding appeal rights for

suppliers and practitioners, the rules in

this part include procedures for review

of determinations that affect those two

groups.

(h) Section 1128A(c)(2) of the Act

provides that the Secretary may not

collect a civil money penalty until the

affected entity has had notice and

opportunity for a hearing.

(i) Section 1819(h) of the Act—

(l) Provides that, for SNFs found to be

out of compliance with the
32350 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

requirements for participation, specified

remedies may be imposed instead of, or

in addition to, termination of the

facility’s Medicare provider agreement;

and

(2) Makes certain provisions of

section 1128A of the Act applicable to

civil money penalties imposed on SNFs.

(j) Section 1891(e) of the Act provides

that, for home health agencies (HHAs)

found to be out of compliance with the

conditions of participation, specified

remedies may be imposed instead of, or

in addition to, termination of the HHA’s

Medicare provider agreement.

(k) Section 1891(f) of the Act—

(1) Requires the Secretary to develop

a range of such remedies; and

(2) Makes certain provisions of

section 1128A of the Act applicable to

civil money penalties imposed on

HHAs.

§ 498.2 [Amended]

4. In § 498.2, the following changes

are made:

a. The definition of ‘‘Appeals

Council’’ is removed.

b. A definition of ‘‘Departmental

Appeals Board’’ is added, in

alphabetical order, to read as set forth

below.

c. In the definition of ‘‘provider’’, the

words ‘‘a nursing facility (NF) or

intermediate care facility for the

mentally retarded (ICF/MR)’’ are

removed.

§ 498.2 Definitions.

* * * * *

Departmental Appeals Board or Board

means a Board established in the Office

of the Secretary to provide impartial

review of disputed decisions made by

the operating components of the

Department.

* * * * *

5. In § 498.3, the introductory text of

paragraph (b) is republished; paragraphs

(a), (b)(4), (b)(7), (b)(8), (b)(12), (b)(13),

(d) introductory text and (d)(1) are

revised, paragraphs (d)(10) through

(d)(12) are redesignated as paragraphs

(d)(10)(i) through (d)(10)(iii), newly

designated paragraph (d)(10) is revised,

a new paragraph (d)(11) is added, and

paragraphs (d)(13) and (d)(14) are

redesignated as paragraphs (d)(12) and

(d)(13) respectively, to read as follows:

§ 498.3 Scope and applicability.

(a) Scope. (1) This part sets forth

procedures for reviewing initial

determinations that HCFA makes with

respect to the matters specified in

paragraph (b) of this section and that the

OIG makes with respect to the matters

specified in paragraph (c) of this

section.

(2) The determinations listed in this

section affect participation in the

Medicare program. Many of the

procedures of this part also apply to

other determinations that do not affect

participation in Medicare. Examples are:

(i) HCFA’s determination to terminate

an NF’s Medicaid provider agreement;

(ii) HCFA’s determination to cancel

the approval of an intermediate care

facility for the mentally retarded (ICF/

MR) under section 1910(b) of the Act;

and

(iii) HCFA’s determination, under the

Clinical Laboratory Improvement Act

(CLIA), to impose alternative sanctions

or to suspend, limit, or revoke the

certificate of a laboratory even though it

does not participate in Medicare.

(3) The following parts of this chapter

specify the applicability of the

provisions of this part 498 to sanctions

or remedies imposed on the indicated

entities:

(i) Part 431, subpart D—for nursing

facilities (NFs).

(ii) Part 488, subpart E (§ 488.330(e)—

for SNFs and NFs.

(iii) Part 493, subpart R (§ 493.1844)—

for laboratories.

(b) Initial determinations by HCFA.

HCFA makes initial determinations with

respect to the following matters:

* * * * *

(4) Whether a prospective supplier

meets the conditions for coverage of its

services as those conditions are set forth

elsewhere in this chapter.

* * * * *

(7) The termination of a provider

agreement in accordance with § 489.53

of this chapter, or the termination of a

rural health clinic agreement in

accordance with § 405.2404 of this

chapter, or the termination of a

Federally qualified health center

agreement in accordance with

§ 405.2436 of this chapter.

(8) HCFA’s cancellation, under

section 1910(b) of the Act, of an ICF/

MR’s approval to participate in

Medicaid.

* * * * *

(12) With respect to an SNF or NF, a

finding of noncompliance that results in

the imposition of a remedy specified in

§ 488.406 of this chapter, except the

State monitoring remedy, and the loss of

the approval for a nurse-aide training

program.

(13) The level of noncompliance

found by HCFA in an SNF or NF but

only if a successful challenge on this

issue would affect the range of civil

money penalty amounts that HCFA

could collect. (The scope of review

during a hearing on imposition of a civil

money penalty is set forth in

§ 488.438(e) of this chapter.)

* * * * *

(d) Administrative actions that are not

initial determinations. Administrative

actions that are not initial

determinations include but are not

limited to the following:

(1) The finding that a provider or

supplier determined to be in

compliance with the conditions or

requirements for participation or for

coverage has deficiencies.

* * * * *

(10) With respect to an SNF or NF–

(i) The finding that the SNF’s or NF’s

deficiencies pose immediate jeopardy to

the health or safety of its residents;

(ii) Except as provided in paragraph

(b)(13) of this section, a determination

by HCFA as to the facility’s level of

noncompliance; and

(iii) The imposition of State

monitoring or the loss of the approval

for a nurse-aide training program.

(11) The choice of alternative sanction

or remedy to be imposed on a provider

or supplier.

* * * * *

6. Section 498.5 is amended to revise

paragraph (c) and to add a new

paragraph (k), to read as follows:

§ 498.5 Appeal rights.

* * * * *

(c) Appeal rights of providers and

prospective providers. Any provider or

prospective provider dissatisfied with a

hearing decision may request

Departmental Appeals Board review,

and has a right to seek judicial review

of the Board’s decision.

* * * * *

(k) Appeal rights of NFs. Under the

circumstances specified in § 431.153 (g)

and (h) of this chapter, an NF has a right

to a hearing before an ALJ, to request

Board review of the hearing decision,

and to seek judicial review of the

Board’s decision.

7. Section 498.60 is amended to add

a new paragraph (c), to read as follows:

§ 498.60 Conduct of hearing.

* * * * *

(c) Scope of review: Civil money

penalty. In civil money penalty cases—

(1) The scope of review is as specified

in § 488.438(e) of this chapter; and

(2) HCFA’s determination as to the

level of noncompliance of an SNF or NF

must be upheld unless it is clearly

erroneous.

§ 498.61 [Amended]

8. In § 498.61, the designation ‘‘(a)’’

and paragraph (b) are removed.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32351

§ 498.74 [Amended]

9. In § 498.74, the following changes

are made:

a. In paragraph (b)(1), ‘‘within the

stated time period’’ is revised to read

‘‘within the time period specified in

§ 498.82’’.

b. In paragraphs (b)(1), (b)(2), and

(b)(3), ‘‘Appeals Council’’ is revised to

read ‘‘Departmental Appeals Board’’ in

paragraphs (b)(1) and (b)(4), ‘‘Council’’

revised to read ‘‘Board’’,

c. In paragraph (b)(2), ‘‘in a Federal

district court;’’ is revised to read ‘‘in a

United States District Court or, in the

case of a civil money penalty, in a

United States Court of Appeals;’’.

10. Section 498.90 is revised to read

as follows:

§ 498.90 Effect of Departmental Appeals

Board Decision

(a) General rule. The Board’s decision

is binding unless—

(1) The affected party has a right to

judicial review and timely files a civil

action in a United States District Court

or, in the case of a civil money penalty,

in a United States Court of Appeals; or

(2) The Board reopens and revises its

decision in accordance with § 498.102.

(b) Right to judicial review. Section

498.5 specifies the circumstances under

which an affected party has a right to

seek judicial review.

(c) Special rules: Civil money penalty.

(1) Finality of Board’s decision. When

HCFA imposes a civil money penalty,

notice of the Board’s decision (or denial

of review) is the final administrative

action that initiates the 60-day period

for seeking judicial review.

(2) Timing for collection of civil

money penalty. For SNFs and NFs, the

rules that apply are those set forth in

subpart F of part 488 of this chapter.

(Catalog of Federal Domestic Assistance

Program No. 93.778, Medical Assistance;

Program No. 93.773, Medicare—Hospital

Insurance; Program No. 93.774, Medicare—

Supplementary Medical Insurance)

Dated: May 16, 1996.

Bruce C. Vladeck,

Administrator, Health Care Financing

Administration.

[FR Doc. 96–13521 Filed 6–21–96; 8:45 am]

BILLING CODE 4120–01–P

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 2920

[WO–350–1430–00–24 1A; Circular No.

2661]

RIN 1004–AB51

Leases, Permits, and Easements;

Effective Dates of Permit Decisions;

Appeal Procedure

AGENCY: Bureau of Land Management,

Interior.

ACTION: Final rule.

SUMMARY: This final rule amends the

general lease and permit regulations of

the Bureau of Land Management (BLM).

It provides that BLM general use,

occupancy, and development permit

decisions will take effect immediately if

the contemplated uses meet the

requirements for minimum impact

permits under the existing regulations.

Permits issued under such decisions

will remain in effect during the

pendency of any appeal to the Interior

Board of Land Appeals (IBLA), unless

IBLA stays the decision. The regulatory

text in the rule pertains only to

minimum impact permits. If a proposed

use does not satisfy the requirements for

a minimum impact permit under the

existing regulations (that is, if the

proposed use would conflict with BLM

plans, policies, and programs for the

affected lands, or local zoning

ordinances, or cause appreciable

damage to public lands or resources or

improvements), the requested permit

would not qualify as a minimum impact

permit and the provision adopted today

would not apply. In such a case, BLM

would not issue a permit until the

applicant meets all the requirements

contained in the existing regulations.

Appeals of permits other than minimum

impact permits are not affected by this

final rule. Similarly, appeals of BLM

lease decisions are not affected by this

rule. These appeals of BLM decisions to

issue leases and non-minimum impact

permits will continue to be governed by

the general appeal procedures of the

Department of the Interior, and the use

authorizations appealed will not take

immediate effect under this rule. The

amendments to the appeals process in

this final rule are needed to avoid

delays in BLM’s issuance of permits for

environmentally benign public land

uses.

EFFECTIVE DATE: July 24, 1996.

ADDRESSES: You may send inquiries or

suggestions to: Director (350), Bureau of

Land Management, 1849 C Street, NW,

Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT:

Vanessa Engle, as to the permit program,

(202) 452–7776, or Jeff Holdren, as to

the rule or the permit program, (202)

452–7779.

SUPPLEMENTARY INFORMATION:

I. Background

II. Final Rule and Response to Comments

III. Procedural Matters

I. Background

A. Summary of the Bureau of Land

Management Permit Program

The existing regulations in 43 CFR

part 2920 contain procedures for many

types of land users to obtain

authorizations in the form of permits,

leases, and easements to use, occupy,

and develop public lands and their

resources. BLM’s statutory authority to

allow these uses is found in Section 302

of the Federal Land Policy and

Management Act of 1976 (43 U.S.C.

1732) (FLPMA). BLM’s general authority

for issuing regulations is found in

Section 310 of FLPMA (43 U.S.C. 1740).

This final rule relates only to permits

issued for uses causing minimal

environmental impacts on lands and

resources, and does not pertain to

leases, easements, or other permits.

BLM authorizes only those uses that

conform to applicable law, and to BLM

plans, policies, objectives, and resource

management programs. Permits are

normally issued for short-term uses that

do not exceed 3 years. (Uses with terms

shorter than 3 years but involving

heavier impacts may require leases.)

Permits are required for activities that

disrupt normal visitor activity or other

authorized uses, or involve the

placement, storage, or use of temporary

structures or facilities, or materials or

equipment. BLM may terminate a

permit immediately for noncompliance,

or to allow another disposition or use of

the lands. Typical uses requiring

permits under these regulations are

equipment storage, beekeeping, motion

picture and advertising photography,

and scientific research. The regulations

in part 2920 do not cover specific

activities governed by other regulations

in this title, such as grazing (43 CFR part

4100), mining (parts 3700 and 3800),

mineral leasing (parts 3100, 3200, 3400,

and 3500), mineral material sales (part

3600), and timber sales (part 5400).

Also, certain activities require no

authorization, such as still photography

not intended for advertising purposes.

There is no need to apply for a permit

or lease for such activities.

Section 2920.2–2 authorizes the

issuance of permits for activities that

cause no appreciable impacts on the

public lands, their resources or