[Federal Register Volume 69, Number 13 (Wednesday, January 21, 2004)]
[Rules and Regulations]
[Pages 2843-2848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1163]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 13


Implementation of the Equal Access to Justice Act in Agency 
Proceedings

AGENCY: Office of the Secretary, HHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Department's regulations under the 
Equal Access to Justice Act (EAJA), 5 U.S.C. 504, to conform with 
statutory amendments to the EAJA and reflect the separation of the 
Social Security Administration from HHS.

[[Page 2844]]


EFFECTIVE DATE: This final rule will be effective on February 20, 2004.

FOR FURTHER INFORMATION CONTACT: Katherine M. Drews, Associate General 
Counsel, 330 Independence Ave., SW., Cohen Building, Room 4760, 
Washington, DC 20201. Telephone: (202) 619-0150.

SUPPLEMENTARY INFORMATION:

Background

    The Department published a Notice of Proposed Rulemaking on August 
13, 2002 at 67 FR 52696, to amend its existing regulation implementing 
the EAJA. The Department solicited comments on the proposed rule, but 
did not receive any. Accordingly, the Department publishes the proposed 
rule as a final rule without changes.
    The EAJA, enacted in 1980, requires the Government to pay attorney 
fees to parties prevailing against it in litigation where the 
Government's position is not substantially justified. The Act applies 
to certain types of adversary administrative proceedings and to certain 
court litigation where attorney fees are not otherwise available.
    The EAJA requires each agency to issue rules implementing the Act 
as it applies to administrative proceedings. The current rule of the 
Department of Health and Human Services (HHS) was published on October 
4, 1983, and is codified at 45 CFR part 13. (All citations below to 
section 13 are to sections of 45 CFR part 13.)
    The original Act had a sunset provision, causing it to expire on 
September 30, 1984 (although it would continue to cover proceedings 
pending on that date). The HHS regulation presently in effect contains 
a similar sunset provision. A subsequent statutory change eliminated 
the sunset provision in the Act, revised the eligibility criteria for 
parties, and amended the Act in certain other respects. Pub. L. 99-80, 
99 Stat. 183 (1985).
    Since publication of the current regulation, the Social Security 
Administration has become an independent agency. Also, the EAJA was 
further amended by section 231 of the Contract with America Advancement 
Act of 1996, Pub. L. 104-121, 110 Stat. 847, 862-63 (1996).
    This final rule amends the existing regulation in the following 
ways:
    1. The Act provided for fee shifting only where the agency's 
position was not substantially justified. Pub. L. 104-121 added a 
provision for fee shifting where the agency's demand was substantially 
in excess of the ultimate decision and was unreasonable when compared 
with that decision. The final regulation amends section 13.1, and 
revises sections 13.5 and 13.10(a)(2), to incorporate this new basis 
for fee awards. Pub. L. 104-121 also added a new category of party that 
would be eligible for a fee award, though only for awards made based on 
this excessive and unreasonable demand criterion. The final rule amends 
sections 13.4; 13.10(a)(3), (5); and 13.11(a) to the same effect.
    2. The Act included a sunset clause, section 203(c), providing that 
the Act would not apply to administrative adjudications initiated after 
September 30, 1984. HHS's existing regulation includes a similar 
provision, 45 CFR 13.2. Section 6(b)(1) of Pub. L. 99-80 repealed the 
sunset provision in the Act. The final rule similarly amends section 
13.2.
    3. Section 13.3 in the existing regulation generally provides that 
we have listed the covered proceedings in the Appendix to the rule. The 
final rule revises section 13.3 to cover proceedings not listed in the 
Appendix to the rule. The new rule automatically covers proceedings 
where the procedural rights are incorporated by reference from certain 
statutes that we have already determined invoke the Act. It also allows 
a party in any other administrative proceeding to file an EAJA 
application and claim coverage, and have the issue resolved in the 
resulting proceeding on the fee application.
    4. Section 1(c)(1) of Pub. L. 99-80 increased the net worth 
limitations on parties eligible to recover fees under EAJA. It also 
added local government units to the categories of eligible entities. 
Section 7 of Pub. L. 99-80 makes these expanded eligibility criteria 
applicable to proceedings pending on or after August 5, 1985 (the 
effective date of that statute), and to proceedings commenced after 
September 30, 1984 (the sunset date of the original EAJA), even if 
finally disposed of before August 5, 1985. The final rule amends 
sections 13.4(b) and 13.10(a)(5) to make the same changes with respect 
to the same categories of cases. The passage of time has made it 
unnecessary to provide explicitly for older cases. However, for 
proceedings commenced before October 1, 1984, and finally decided 
before August 5, 1985, the older eligibility criteria governs, as 
follows: Individuals with a net worth of not more than $1 million; sole 
owners of unincorporated businesses if the owner has a net worth of not 
more than $5 million, including both personal and business interests, 
and if the business has no more than 500 employees; and all other 
partnerships, corporations, associations, or public or private 
organizations with a net worth of not more than $5 million and with not 
more than 500 employees.
    5. Section 1(c)(3) of Pub. L. 99-80 defines the ``position of the 
agency'' to include the action or omission that was the basis for the 
proceeding, and section 1(a)(1) restricts the analysis of whether that 
position was substantially justified to the administrative record. The 
final rule revises sections 13.5(a) and 13.10(a)(2) likewise, and it 
also amends section 13.25(a) to the same end.
    6. We no longer take the position that the applicant must have 
actually paid (or must have actually become obligated to pay) the 
attorney fees and expenses in order to recover those fees and expenses 
under EAJA. Accordingly, the final rule deletes the sentence in Section 
13.6(a) that stated this position.
    7. Pub. L. 104-121 increased the allowable hourly rate for fees 
from $75 to $125. The final rule amends section 13.6(b) to the same 
effect.
    8. The final rule amends section 13.12(d) to make clear that the 
adjudicative officer may require further substantiation of fees as well 
as expenses.
    9. The EAJA and the HHS regulation require the prevailing party to 
file the fee application within 30 days of the final disposition of the 
administrative proceeding. 5 U.S.C. 504(a)(2); 45 CFR 13.22(a). Section 
7(b) of Pub. L. 99-80 provides that, in cases commenced after September 
30, 1984 (the sunset date of the original EAJA), and finally disposed 
of before August 5, 1985 (the effective date of the new law), this 30-
day period runs from the latter date. The final rule amends section 
13.22(a) to this effect.
    10. Section 1(b) of Pub. L. 99-80 provides that when the Government 
appeals the merits of a proceeding, any fee application is stayed until 
the appeal is finally resolved, and it specifies that a court decision 
is deemed to finally dispose of such an appeal only when that decision 
is final and unreviewable. There is a similar, but more inclusive, stay 
provision in section 13.22(d). The final rule amends sections 13.22(b) 
and (d) to conform with the statute. The final rule also revises 
section 13.23(a) to make clear that, when a fee proceeding is stayed in 
these circumstances, the agency need answer the fee application only 
after the final disposition of the underlying controversy.
    11. The final rule revises section 13.27 to designate as the review 
authority on fee decisions the same person or component that would have 
jurisdiction over an appeal of the merits of the adjudication. It 
eliminates as unnecessary the requirement that the

[[Page 2845]]

appellate authority review fee awards where neither party appeals. It 
also revises section 13.27(b) to provide for cross-exceptions to be 
filed from an initial decision on a fee application.
    12. Appendix A to the regulation lists the HHS proceedings that are 
covered by the regulation if the agency's litigating party enters an 
appearance and participates. The final rule revises the appendix to 
correct descriptions of categories of proceedings, to correct statutory 
citations for categories of proceedings, to add regulatory citations 
for categories, and to add new categories of proceedings that are 
covered.
    13. We interpret the EAJA to include certain HHS proceedings for 
which the statutory entitlement to a hearing rests either on a statute 
tracking the language Section 205(b) of the Social Security Act (42 
U.S.C. 405(b)) or on a statute incorporating that provision by 
reference and for which the position of the United States is 
represented by counsel or otherwise. This interpretation is further 
supported by the legislative history of Pub. L. 99-80, discussing 
analogous hearings conducted under the Social Security Administration 
Representation Project, which was discontinued in 1987. Thus, the final 
rule adds certain HHS proceedings to Appendix A.

Economic Impact

    We have examined the impacts of this final rule as required by 
Executive Order 12866 (September 1993, Regulatory Planning and Review), 
the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 96-
354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and 
Executive Order 13132 (Federalism).
    Executive Order 12866 (the Order) directs agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). A 
regulatory impact analysis must be prepared for major rules with 
economically significant effects ($100 million or more in any 1 year).
    We have determined that the final rule is consistent with the 
principles set forth in the Order, and we also find that the final rule 
would not have economically significant effects. In addition, the rule 
is not a major rule as defined at 5 U.S.C. 804(2). In accordance with 
the provisions of the Order, this regulation was reviewed by the Office 
of Management and Budget.
    The Secretary certifies that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
The basis for the Secretary's certification is that, although small 
entities are eligible to apply for awards, the regulation will apply 
only to a small number of the proceedings held by the Department each 
year, and, in many of those proceedings, there will not be any fee 
award because the Department's position will be substantially justified 
or its demand will be reasonable. Also, most of the changes reflected 
in the regulation are mandated by the statute, so it is the statute 
rather than the regulation that would have any impact. Finally, the 
procedures prescribed by the regulation are no more onerous than those 
imposed by the current rule. In sum, the regulation will have 
negligible effect on such entities.
    The Secretary states, in accordance with section 3(c) of Executive 
Order 12988 (Civil Justice Reform), that the Department has reviewed 
this final rule in light of section 3 of that Order and that the rule 
meets the applicable standards in subsections (a) and (b) of that 
Order.
    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that agencies assess anticipated costs and benefits before issuing any 
rule that may result in expenditure in any 1 year by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million. As noted above, we find that this final rule would not have an 
effect of this magnitude on the economy.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a final rule that imposes 
substantial direct requirement costs on State and local governments, 
preempts State law, or otherwise has Federalism implications. We have 
reviewed this final rule under the threshold criteria of Executive 
order 13132, and we find that there would be no substantial direct 
effect on the States, on the relationship between the States and the 
national Government, or on the distribution of power between the levels 
of government on our federal system. Thus, a federalism impact 
statement is not required.

Information Collection

    In the Notice of Proposed Rulemaking, we solicited comments on the 
information collection requirements found in proposed sections 13.10, 
13.11, and 13.12. We received no comments. We have reconsidered the 
collection and find that the collection falls within the exception to 
the Paperwork Reduction Act of 1995 (PRA) at 44 U.S.C. 3518(c)(1)(ii) 
and in the Office of Management and Budget implementing regulations at 
5 CFR 1320.4(a)(2) for collections of information during the conduct of 
a civil action to which the United States or any official or agency is 
a party, or during the conduct of an administrative action involving an 
agency against specific individuals or entities. Therefore, the final 
rule does not contain information collection requirements covered by 
the PRA.

List of Subjects in 45 CFR Part 13

    Administrative practice and procedure, Claims, Equal access to 
justice.


0
For the reasons set out in the preamble, the Secretary amends 45 CFR 
part 13 as follows:

PART 13--[AMENDED]

0
1. The authority citation for part 13 is revised to read as follows:


    Authority: 5 U.S.C. 504(c)(1).


0
2. In Sec.  13.1, the third sentence is revised to read as follows:


Sec.  13.1  Purpose of these rules.

    * * * The Department may reimburse parties for expenses incurred in 
adversary adjudications if the party prevails in the proceeding and if 
the Department's position in the proceeding was not substantially 
justified or if the action is one to enforce compliance with a 
statutory or regulatory requirement and the Department's demand is 
substantially in excess of the ultimate decision and is unreasonable 
when compared with that decision. * * *

0
3. Section 13.2 is revised to read as follows:


Sec.  13.2  When these rules apply.

    These rules apply to adversary adjudications before the Department.

0
4. Section 13.3 is amended by removing the last sentence in paragraph 
(a), by redesignating paragraph (b) as paragraph (c), and by adding a 
new paragraph (b) as follows:


Sec.  13.3  Proceedings covered.

* * * * *
    (b) If the agency's litigating party enters an appearance, 
Department proceedings listed in Appendix A to this part are covered by 
these rules. Also covered are any other proceedings under statutes that 
incorporate by reference the procedures of sections 1128(f), 
1128A(c)(2), or 1842(j)(2) of the Social Security Act, 42 U.S.C. 1320a-
7(f), 1320a-7a(c)(2), or 1395u(j)(2). If a proceeding is not covered 
under either

[[Page 2846]]

of the two previous sentences, a party may file a fee application as 
otherwise required by this part and may argue that the Act covers the 
proceeding. Any coverage issue shall be determined by the adjudicative 
officer and, if necessary, by the appellate authority on review.
* * * * *

0
5. Section 13.4(b) is revised to read as follows:


Sec.  13.4  Eligibility of applicants.

* * * * *
    (b) The categories of eligible applicants are as follows:
    (1) Charitable or other tax-exempt organizations described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (2) Cooperative associations as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees;
    (3) Individuals with a net worth of not more than $2 million;
    (4) Sole owners of unincorporated businesses if the owner has a net 
worth of not more than $7 million, including both personal and business 
interests, and if the business has not more than 500 employees;
    (5) All other partnerships, corporations, associations, local 
governmental units, and public and private organizations with a net 
worth of not more than $7 million and with not more than 500 employees; 
and
    (6) Where an award is sought on the basis stated in Sec.  13.5(c) 
of this part, small entities as defined in 5 U.S.C. 601.
* * * * *

0
6. Section 13.5 is amended by redesignating paragraphs (a) through (d) 
as paragraphs (b)(1) through (b)(4), respectively; adding new paragraph 
(a) and a paragraph (b) heading; revising newly designated paragraph 
(b)(1); and adding a new paragraph (c) to read as follows:


Sec.  13.5  Standards for awards.

    (a) An award of fees and expenses may be made either on the basis 
that the Department's position in the proceeding was not substantially 
justified or on the basis that, in a proceeding to enforce compliance 
with a statutory or regulatory requirement, the Department's demand 
substantially exceeded the ultimate decision and was unreasonable when 
compared with that decision. These two bases are explained in greater 
detail in paragraphs (b) and (c) of this section.
    (b) Awards where the Department's position was not substantially 
justified.
    (1) Awards will be made on this basis only where the Department's 
position in the proceeding was not substantially justified. The 
Department's position includes, in addition to the position taken by 
the agency in the proceeding, the agency action or failure to act that 
was the basis for the proceeding. Whether the Department's position was 
substantially justified is to be determined on the basis of the 
administrative record as a whole. The fact that a party has prevailed 
in a proceeding does not create a presumption that the Department's 
position was not substantially justified. The burden of proof as to 
substantial justification is on the agency's litigating party, which 
may avoid an award by showing that its position was reasonable in law 
and fact.
* * * * *
    (c) Awards where the Department's demand was substantially 
excessive and unreasonable.
    (1) Awards will be made on this basis only where the adversary 
adjudication arises from the Department's action to enforce a party's 
compliance with a statutory or regulatory requirement. An award may be 
made on this basis only if the Department's demand that led to the 
proceeding was substantially in excess of the ultimate decision in the 
proceeding, and that demand is unreasonable when compared with that 
decision, given all the facts and circumstances of the case.
    (2) Any award made on this basis shall be limited to the fees and 
expenses that are primarily related to defending against the excessive 
nature of the demand. An award shall not include fees and expenses that 
are primarily related to defending against the merits of charges, or 
fees and expenses that are primarily related to defending against the 
portion of the demand that was not excessive, to the extent that these 
fees and expenses are distinguishable from the fees and expenses 
primarily related to defending against the excessive nature of the 
demand.
    (3) Awards will be denied if the party has committed a willful 
violation of law or otherwise acted in bad faith, or if special 
circumstances make an award unjust.


Sec.  13.6  [Amended]

0
7. In Sec.  13.6, the second sentence of paragraph (a) is removed and 
the first sentence of paragraph (b) is amended by removing ``$75.00'' 
and adding in its place ``$125.00''.

0
8.-9. In Sec.  13.10, paragraphs (a)(2) and (a)(3) and the first 
sentence of paragraph (a)(5) introductory text are revised; paragraph 
(a)(5)(i) is amended by removing the word ``or'' at the end and 
paragraph (a)(5)(ii) is amended by adding the word ``or'' at the end; 
and paragraph (a)(5)(iii) is added to read as follows:


Sec.  13.10  Contents of application.

    (a) * * *
    (2) Where an award is sought on the basis stated in Sec.  13.5(b) 
of this part, a declaration that the applicant believes it has 
prevailed, and an identification of the position of the Department that 
the applicant alleges was not substantially justified. Where an award 
is sought on the basis stated in Sec.  13.5(c) of this part, an 
identification of the statutory or regulatory requirement that the 
applicant alleges the Department was seeking to enforce, and an 
identification of the Department's demand and of the document or 
documents containing that demand;
    (3) Unless the applicant is an individual, a statement of the 
number of its employees on the date on which the proceeding was 
initiated, and a brief description of the type and purpose of its 
organization or business. However, where an award is sought solely on 
the basis stated in Sec.  13.5(c) of this part, the applicant need not 
state the number of its employees;
* * * * *
    (5) A statement that the applicant's net worth as of the date on 
which the proceeding was initiated did not exceed the appropriate 
limits as stated in Sec.  13.4(b) of this part. * * *
* * * * *
    (iii) It states that it is applying for an award solely on the 
basis stated in Sec.  13.5(c) of this part, and that it is a small 
entity as defined in 5 U.S.C. 601, and it describes the basis for its 
belief that it qualifies as a small entity under that section.
* * * * *

0
10.-12. Section 13.11(a) is amended by removing the first sentence and 
adding in its place the sentences reading as follows:


Sec.  13.11  Net worth exhibits.

    (a) Each applicant must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec.  13.4(f) of this part) when the proceeding was 
initiated. This requirement does not apply to a qualified tax-exempt 
organization or cooperative association. Nor does it apply to a party 
that states that it is applying for an award solely on the basis stated 
in Sec.  13.5(c) of this part. * * *
* * * * *

[[Page 2847]]


0
13. Section 13.12(d) is revised to read as follows:


Sec.  13.12  Documentation of fees and expenses.

* * * * *
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any fees or expenses 
claimed, pursuant to Sec.  13.25 of this part.

0
14. Section 13.22 is amended by revising paragraphs (b) and (d), as 
follows:


Sec.  13.22  When an application may be filed.

* * * * *
    (b) For purposes of this rule, final disposition means the date on 
which a decision or order disposing of the merits of the proceeding or 
any other complete resolution of the proceeding, such as a settlement 
or voluntary dismissal, becomes final and unappealable, both within the 
agency and to the courts.
* * * * *
    (d) If review or reconsideration is sought or taken, whether within 
the agency or to the courts, of a decision as to which an applicant 
believes it has prevailed, proceedings on the application shall be 
stayed pending final disposition of the underlying controversy.

0
15. In Sec.  13.23(a), the first sentence is removed and two sentences 
are added in its place to read as follows:


Sec.  13.23  Responsive pleadings.

    (a) The agency's litigating party shall file an answer within 30 
calendar days after service of the application or, where the proceeding 
is stayed as provided in Sec.  13.22(d) of this part, within 30 
calendar days after the final disposition of the underlying 
controversy. The answer shall either consent to the award or explain in 
detail any objections to the award requested and identify the facts 
relied on in support of the agency's position. * * *
* * * * *

0
16. Section 13.25(a) is amended by adding the following sentence at the 
end:


Sec.  13.25  Further proceedings.

    (a) * * * In no such further proceeding shall evidence be 
introduced from outside the administrative record in order to prove 
that the Department's position was, or was not, substantially 
justified.
* * * * *

0
17. Section 13.27 is revised to read as follows:


Sec.  13.27  Agency review.

    (a) The appellate authority for any proceedings shall be the 
official or component that would have jurisdiction over an appeal of 
the merits.
    (b) If either the applicant or the agency's litigating party seeks 
review of the adjudicative officer's decision on the fee application, 
it shall file and serve exceptions within 30 days after issuance of the 
initial decision. Within another 30 days after receipt of such 
exceptions, the opposing party, if it has not done so previously, may 
file its own exceptions to the adjudicative officer's decision. The 
appellate authority shall issue a final decision on the application as 
soon as possible or remand the application to the adjudicative officer 
for further proceedings. Any party that does not file and serve 
exceptions within the stated time limit loses the opportunity to do so.

0
18. Appendix A to part 13 is revised to read as follows:

Appendix A to Part 13

----------------------------------------------------------------------------------------------------------------
       Proceedings covered           Statutory authority                   Applicable regulations
----------------------------------------------------------------------------------------------------------------
                                           Office of Inspector General
----------------------------------------------------------------------------------------------------------------
 
 1. Proceedings to impose civil   42 U.S.C. 1320a-          42 CFR Part 1003; 42 CFR Part 1005.
 monetary penalties,               7a(c)(2); 1320b-10(c);
 assessments, or exclusions from   1395i-3(b)(3)(B)(ii),
 Medicare and State health care    (g)(2)(A)(i); 1395l
 programs.                         (h)(5)(D), (i)(6);
                                   1395m(a)(11)(A),
                                   (a)(18), (b)(5)(C),
                                   (j)(2)(A)(iii);
                                   1395u(j)(2), (k), (l
                                   )(3), (m)(3), (n)(3),
                                   (p)(3)(A);
                                   1395y(b)(3)(C),
                                   (b)(6)(B); 1395cc(g);
                                   1395dd(d)(1)(A), (B);
                                   1395mm(i)(6)(B);
                                   1395nn(g)(3), (4);
                                   1395ss(d);
                                   1395bbb(c)(1);
                                   1396b(m)(5)(B);
                                   1396r(b)(3)(B)(ii),
                                   (g)(2)(A)(i);
                                   1396t(i)(3); 11131(c);
                                   11137(b)(2).
2. Appeals of exclusions from     42 U.S.C. 1320a-7(f);     42 CFR Part 1001; 42 CFR Part 1005.
 Medicare and State health care    1395l (h)(5)(D);
 programs and/or other programs    1395m(a)(11)(A),
 under the Social Security Act.    (b)(5)(C); 1395u(j)(2),
                                   (k), (l )(3), (m)(3),
                                   (n)(3), (p)(3)(B).
3. Appeal of exclusions from      42 U.S.C. 1320c-5(b)(4),  42 CFR Part 1004; 42 CFR Part 1005.
 programs under the Social         (5).
 Security Act, for which
 services may be provided on the
 recommendation of a Peer Review
 Organization.
4. Proceedings to impose civil    31 U.S.C. 3803..........  45 CFR Part 79.
 penalties and assessments for
 false claims and statements.
----------------------------------------------------------------------------------------------------------------
                                    Centers for Medicare & Medicaid Services
----------------------------------------------------------------------------------------------------------------
1. Proceedings to suspend or      42 U.S.C. 263a(i); 1395w- 42 CFR Part 493, Subpart R.
 revoke licenses of clinical       2.
 laboratories.
2. Proceedings provided to a      42 U.S.C. 1395h(e)(1)-    42 CFR 421.114, 421.128.
 fiscal intermediary before        (3).
 assigning or reassigning
 Medicare providers to a
 different fiscal intermediary.
3. Appeals of determinations      42 U.S.C. 1395cc(h);      42 CFR 489.53(d); 42 CFR Part 498.
 that an institution or agency     1395dd(d)(1)(A).
 is not a Medicare provider of
 services, and appeals of
 terminations or nonrenewals of
 Medicare provider agreements.
4. Proceedings before the         42 U.S.C. 1395oo........  42 CFR Part 405, Subpart R.
 Provider Reimbursement Review
 Board when Department employees
 appear as counsel for the
 intermediary.

[[Page 2848]]

 
5. Appeals of CMS determinations  42 U.S.C. 1396i.........  42 CFR Part 498.
 that an intermediate care
 facility for the mentally
 retarded (ICFMR) no longer
 qualifies as an ICFMR for
 Medicaid purposes.
6. Proceedings to impose civil    42 U.S.C. 1395i-          42 CFR Part 1003.
 monetary penalties,               3(h)(2)(B)(ii);
 assessments, or exclusions from   1395l(q)(2)(B)(i);
 Medicare and State health care    1395m(a)(11)(A),
 programs.                         (c)(4)(C); 1395w-
                                   2(b)(2)(A); 1395w-
                                   4(g)(1), (g)(3)(B),
                                   (g)(4)(B)(ii);
                                   1395nn(g)(5);
                                   1395ss(a)(2), (p)(8),
                                   (p)(9)(C), (q)(5)(C),
                                   (r)(6)(A), (s)(3),
                                   (t)(2);
                                   1395bbb(f)(2)(A);
                                   1396r(h)(3)(C)(ii);
                                   1396r-8(b)(3)(B),
                                   (C)(ii);
                                   1396t(j)(2)(C);
                                   1396u(h)(2).
7. Appeals of exclusions from     42 U.S.C.                 42 CFR Part 498; 42 CFR 1001.107.
 Medicare and State health care    1395l(q)(2)(B)(ii);
 programs and/or other programs    1395m(a)(11)(A),
 under the Social Security Act.    (c)(5)(C); 1395w-
                                   4(g)(1), (g)(3)(B),
                                   (g)(4)(B)(ii).
----------------------------------------------------------------------------------------------------------------
                                          Food and Drug Administration
----------------------------------------------------------------------------------------------------------------
1. Proceedings to withdraw        21 U.S.C. 355(e)........  21 CFR Part 12; 21 CFR 314.200.
 approval of new drug
 applications.
2. Proceedings to withdraw        21 U.S.C. 360b(e), (m)..  21 CFR Part 12; 21 CFR Part 514, Subpart B.
 approval of new animal drug
 applications and medicated feed
 applications.
3. Proceedings to withdraw        21 U.S.C. 306e(e), (g)..  21 CFR Part 12.
 approval of medical device
 premarket approval applications.
----------------------------------------------------------------------------------------------------------------
 
                                             Office for Civil Rights
----------------------------------------------------------------------------------------------------------------
1. Proceedings to enforce Title   42 U.S.C. 2000d-1.......  45 CFR 80.9.
 VI of the Civil Rights Act of
 1964, which prohibits
 discrimination on the basis of
 race, color or national origin
 by recipients of Federal
 financial assistance.
2. Proceedings to enforce         29 U.S.C. 794a; 42        45 CFR 84.61.
 section 504 of the                U.S.C. 2000d-1.
 Rehabilitation Act of 1973,
 which prohibits discrimination
 on the basis of handicap by
 recipients of Federal financial
 assistance.
3. Proceedings to enforce the     42 U.S.C. 6104(a).......  45 CFR 91.47.
 Age Discrimination Act of 1975,
 which prohibits discrimination
 on the basis of age by
 recipients of Federal financial
 assistance.
4. Proceedings to enforce Title   20 U.S.C. 1682..........  45 CFR 86.71.
 IX of the Education Amendments
 of 1972, which prohibits
 discrimination on the basis of
 sex in certain education
 programs by recipients of
 Federal financial assistance.
----------------------------------------------------------------------------------------------------------------


    Dated: October 14, 2003.
Tommy G. Thompson,
Secretary.
[FR Doc. 04-1163 Filed 1-20-04; 8:45 am]
BILLING CODE 4150-26-P