370
‘‘(A) based on information provided by a
beneficiary’s physician, the State has made a
determination that the availability of the drug
is essential to the health of the beneficiary
under the State plan, and the Secretary has re-
viewed and approved such determination; and
‘‘(B) the drug has been given a rating of
1–A by the Food and Drug Administration.’’;
(D) in paragraph (4)—
(i) by striking ‘‘in compliance with’’
and inserting ‘‘in effect under’’, and
(ii) by striking ‘‘coverage of the man-
ufacturer’s drugs’’ and inserting ‘‘ingredi-
ent costs of the manufacturer’s covered
outpatient drugs covered’’; and
(E) by adding at the end the following new
paragraph:
‘‘(5) APPLICATION
IN
CERTAIN
STATES
AND
TERRITORIES.—
‘‘(A) APPLICATION IN STATES OPERATING
UNDER
DEMONSTRATION
PROJECTS.—In the
case of any State which is providing medical as-
sistance to its residents under a waiver granted
under section 1115, the Secretary shall require
the State to meet the requirements of section
448
this section and the State exercises its right of reconsider-
ation under section 1116(d), the Departmental Appeals
Board established in the Department of Health and
Human Services shall, if such Board upholds the basis for
the disallowance, determine whether the amount of the
disallowance should be reduced. In making this determina-
tion, the Board shall take into account (to the extent the
State makes a showing) factors which shall include—
‘‘(A) the nature of the basis for the disallow-
ance;
‘‘(B) whether the amount of the disallowance is
proportionate to the error or deficiency on which the
disallowance is based;
‘‘(C) whether the basis of the disallowance con-
stitutes noncompliance that prevented or materially
affected the provision of appropriate services to indi-
viduals eligible under this title; or
‘‘(D) whether Federal guidance with respect to
the action that is the basis for the proposed dis-
allowance was insufficient and the State made good
faith efforts to conform its action to the intent of
the applicable Federal statute or regulation.
‘‘(2) No disallowance shall be taken or upheld if the
action of the State on which the disallowance would be
based is consistent with its approved State plan.’’.
475
(b) Subparagraphs (A) and (B) of the paragraph (14)
of section 1903(i) added by section 4752(e)(2) of OBRA–
1990 are each amended—
(1) by striking ‘‘or’’ at the end of clause (v);
(2) by redesignating clause (vi) as clause (vii);
and
(3) by inserting after clause (v) the following
new clause:
‘‘(vi) delivers such services in the
emergency department of a hospital par-
ticipating in the state plan approved under
this title, or’’.
SEC. 5172. CORRECTIONS RELATING TO SECTION 4801
(NURSING HOME REFORM).
(a) Section 1919(b)(3)(C)(i)(I), as amended by sec-
tion 4801(e)(3) of OBRA–1990, is amended by striking
‘‘no later than’’ before ‘‘not to exceed 14 days’’.
(b) Section 1919(b)(5)(D), as amended by section
4801(a)(4) of OBRA–1990, is amended by striking the
comma before ‘‘or a new competency evaluation pro-
gram.’’.
(c) Section 1919(b)(5)(G) is amended by striking ‘‘or
licensed or certified social worker’’ and inserting ‘‘licensed
or certified social worker, registered respiratory therapist,
or certified respiratory therapy technician’’.
574
that is assigned for use pursuant to the Communica-
tions Act of 1934;
‘‘(2) many of such frequencies are underutilized
by Federal Government licensees;
‘‘(3) the public interest requires that many of
such frequencies be utilized more efficiently by Fed-
eral Government and non-Federal licensees;
‘‘(4) additional frequencies are assigned for
services that could be obtained more efficiently from
commercial carriers or other vendors;
‘‘(5) scarcity of assignable frequencies for li-
censing by the Commission can and will—
‘‘(A) impede the development and commer-
cialization of new telecommunications products
and services;
‘‘(B) limit the capacity and efficiency of
the United States telecommunications systems;
‘‘(C) prevent some State and local police,
fire, and emergency services from obtaining
urgently needed radio channels; and
‘‘(D) adversely affect the productive capac-
ity and international competitiveness of the
United States economy;
‘‘(6) a reassignment of these frequencies can
produce significant economic returns; and