[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)]
[Proposed Rules]
[Pages 43607-43611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18519]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Inspector General
42 CFR Parts 1001 and 1003
RIN 0936-AA10
Medicare and State Health Care Programs: Fraud and Abuse; Request
for Information Regarding the Anti-Kickback Statute and Beneficiary
Inducements CMP
AGENCY: Office of Inspector General (OIG), HHS.
ACTION: Request for information.
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SUMMARY: This request for information seeks input from the public on
how to address any regulatory provisions that may act as barriers to
coordinated care or value-based care.
DATES: Comment Date: To ensure consideration, comments must be received
at one of the addresses provided below, no later than 5 p.m. on October
26, 2018.
ADDRESSES: In commenting, refer to file code OIG-0803-N. Because of
staff and resource limitations, we cannot accept comments by facsimile
(fax) transmission. However, you may submit comments in one of three
ways (no duplicates, please):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular, express, or overnight mail. You may send written
comments to the following address: Susan Edwards, Office of Inspector
General, Department of Health and Human Services, Attention: OIG-0803-
N, Room 5513, Cohen Building, 330 Independence Avenue SW, Washington,
DC 20201.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By hand or courier. If you prefer, you may deliver your written
comments by hand or courier before the close of the comment period to:
Susan Edwards, Office of Inspector General, Department of Health and
Human Services, Attention: OIG-0803-N, Room 5513, Cohen Building, 330
Independence Avenue SW, Washington, DC 20201.
Because access to the interior of the Cohen Building is not readily
available to persons without Federal Government identification,
commenters are encouraged to schedule their delivery with one of our
staff members at (202) 619-0335.
[[Page 43608]]
For information on viewing public comments, please see the
SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Susan Edwards, (202) 708-9845.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to
view public comments. Comments received in a timely manner will also be
available for public inspection as they are received at the Office of
Inspector General, Department of Health and Human Services, Cohen
Building, 330 Independence Avenue SW, Washington, DC 20201, Monday
through Friday, from 10 a.m. to 5 p.m. To schedule an appointment to
view public comments, phone (202) 619-0335.
I. Introduction
The Department of Health and Human Services (HHS) is working to
transform the health care system into one that better pays for value.
Care coordination is a key aspect of systems that deliver value.
Removing unnecessary government obstacles to care coordination is a key
priority for HHS. To help accelerate the transformation to a value-
based system that includes care coordination, HHS has launched a
Regulatory Sprint to Coordinated Care, led by the Deputy Secretary.
This ``Regulatory Sprint'' is focused on identifying regulatory
provisions that may act as barriers to coordinated care, assessing
whether those regulatory provisions are unnecessary obstacles to
coordinated care, and issuing guidance or revising regulations to
address such obstacles and, as appropriate, to encourage and
incentivize coordinated care while protecting against harms caused by
fraud and abuse.
The Office of Inspector General (OIG) seeks to identify ways in
which it might modify or add new safe harbors to the anti-kickback
statute and exceptions to the beneficiary inducements civil monetary
penalty (CMP) definition of ``remuneration'' in order to foster
arrangements that would promote care coordination and advance the
delivery of value-based care, while also protecting against harms
caused by fraud and abuse. Through internal discussion and with the
benefit of facts and information received from external stakeholders,
OIG has identified the broad reach of the anti-kickback statute and
beneficiary inducements CMP as a potential impediment to beneficial
arrangements that would advance coordinated care. To inform our
efforts, we welcome public comment on the safe harbors to the anti-
kickback statute and the exceptions to the beneficiary inducements CMP
definition of ``remuneration'' as they relate to the goals of the
Regulatory Sprint outlined above. In particular, we welcome comments in
response to the questions presented in this Request for Information
(RFI).
II. Background
Section 1128B(b) of the Social Security Act (the Act), the Federal
anti-kickback statute, provides criminal penalties for individuals or
entities that knowingly and willfully offer, pay, solicit, or receive
remuneration to induce or reward the referral of business reimbursable
under Federal health care programs, as defined in section 1128B(f) of
the Act. The law endeavors to protect patients and the Federal health
care programs from fraud and abuse by curtailing the corrupting
influence of remuneration on health care decisions; however, because
the statute is broadly written, when it was enacted there was concern
that some relatively innocuous and potentially beneficial arrangements
were technically covered by the statute and therefore were subject to
criminal prosecution.
In response to this concern, Congress passed section 14 of the
Medicare and Medicaid Patient and Program Protection Act of 1987, which
required HHS to set forth ``safe harbors'' to the anti-kickback
statute. Specifically, section 1128B(b)(3)(E) of the Act protects from
the anti-kickback statute ``any payment practice specified by the
Secretary in regulations promulgated pursuant to section 14(a) of the
Medicare and Medicaid Patient and Program Protection Act of 1987.'' In
giving HHS the authority to protect certain arrangements and payment
practices under the anti-kickback statute, Congress intended the safe
harbors to be evolving rules that would be updated periodically to
reflect changing business practices and technologies in the health care
industry.\1\
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\1\ H.R. Rep. No. 100-85, Pt. 2, at 27 (1987).
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Health care providers and others may voluntarily comply with safe
harbors in an effort to ensure that their business practices will not
be subject to criminal prosecution under the anti-kickback statute, the
imposition of civil monetary penalties (CMPs) under section 1128A(a)(7)
of the Act, program exclusion under section 1128(b)(7) of the Act, and
liability under the False Claims Act (31 U.S.C. 3729-33). Since
finalizing the first safe harbors in 1991, OIG has continued to engage
the industry on the application of the Federal anti-kickback statute
and development of safe harbors.
Section 1128A(a)(5) of the Act, the beneficiary inducements CMP,
provides for the imposition of CMPs against any person who offers or
transfers remuneration to a Medicare or State health care program
beneficiary that the benefactor knows or should know is likely to
influence the beneficiary's selection of a particular provider,
practitioner, or supplier of any item or service for which payment may
be made, in whole or in part, by Medicare or a State health care
program. In the same administrative proceedings in which it may seek to
impose CMPs against a person, OIG may seek to exclude such person from
the Federal health care programs. For purposes of section 1128A(a)(5)
of the Act, the statute defines ``remuneration'' to include, without
limitation, waivers of co-payments and deductible amounts (or any part
thereof) and transfers of items or services for free or for other than
fair market value.\2\ The statute and associated regulations contain a
limited number of exceptions.\3\
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\2\ See section 1128A(i)(6) of the Act.
\3\ See id.; 42 CFR 1003.110.
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OIG is mindful of the impact of delivery system and payment reform
on Federal health care programs and the changing relationships between
providers, suppliers, and other entities in delivering higher quality,
better coordinated care; enhancing value; and improving the overall
health of patients. We have received several suggestions for new safe
harbors and proposed modifications to existing safe harbors that may
promote care coordination and reduce regulatory impediments to value-
based arrangements, including in response to our annual ``Solicitation
of New Safe Harbors and Special Fraud Alerts.'' \4\
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\4\ See, e.g., Solicitation of New Safe Harbors and Special
Fraud Alerts, 82 FR 61,229 (Dec. 27, 2017), available at https://www.gpo.gov/fdsys/pkg/FR-2017-12-27/pdf/2017-27117.pdf; OIG,
Semiannual Report to Congress, April 1, 2017-September 30, 2017,
available at https://oig.hhs.gov/reports-and-publications/archives/semiannual/2017/sar-fall-2017.pdf.
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We continue to consider how to balance additional flexibility for
industry stakeholders to provide
[[Page 43609]]
efficient, well-coordinated, patient-centered care with protections
against the harms caused by fraud and abuse. We are requesting
additional information in this RFI to help inform our efforts. We are
particularly interested in thoughts on topics that include, but are not
limited to: (i) The structure of arrangements between parties that
participate in alternative payment models or other novel financial
arrangements designed to promote care coordination and value; (ii) the
need for new or revised safe harbors and exceptions to the definition
of ``remuneration'' under the beneficiary inducements CMP to promote
beneficial care coordination, patient engagement, and value-based
arrangements; and (iii) terminology related to alternative payment
models, value-based arrangements, and care coordination. We are
interested in any special considerations for rural providers and others
serving underserved populations, including American Indian and Alaska
Native communities.
Where relevant, we intend to review comments submitted in response
to the Medicare Program; Request for Information Regarding the
Physician Self-Referral Law, RIN 0938-AT64, issued by the Centers for
Medicare & Medicaid Services (CMS).\5\ However, given the volume of
questions included in that RFI and OIG's separate, and different,
authorities, we urge individuals and entities to resubmit any relevant
comments to this RFI to ensure they are considered by OIG. We look
forward to receiving input in response to this RFI.
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\5\ Medicare Program; Request for Information Regarding the
Physician Self-Referral Law, 83 FR 29,524 (June 25, 2018), available
at https://www.gpo.gov/fdsys/pkg/FR-2018-06-25/pdf/2018-13529.pdf.
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III. Request for Information
We welcome public input on any or all of the topics identified
below. Respondents are not required to address every issue or respond
to every question discussed in this RFI to have their responses
considered.
1. Promoting Care Coordination and Value-Based Care
A. Please tell us about potential arrangements that the industry is
interested in pursuing, such as care coordination, value-based
arrangements, alternative payment models, arrangements involving
innovative technology, and other novel financial arrangements that may
implicate the anti-kickback statute or beneficiary inducements CMP. For
example, we are interested in better understanding the structure and
terms of the arrangement (e.g., categories/types of parties; how risk
is allocated among parties; financial relationships involving potential
referral sources and seekers created by the arrangement; and types of
items and services provided by the arrangement). We are also interested
in understanding how the arrangement promotes care coordination or
value-based care and how the arrangement prevents potential harms, such
as increased costs, inappropriate utilization, poor quality of care,
and distorted decision making.
B. Please identify what, if any, additional or modified safe
harbors to the anti-kickback statute or exceptions to the definition of
``remuneration'' under the beneficiary inducements CMP may be necessary
to protect such arrangements and any key provisions that should be
included in the additional or modified safe harbor or exception.
Existing safe harbors and exceptions of particular relevance to
coordinated care include, for example, those related to personal
services and management contracts, electronic health record
arrangements, warranties, transportation, and promoting access to care.
Suggested new safe harbors or exceptions might address care
coordination services arrangements or arrangements promoting the use of
innovative technology. In particular, please describe what conditions
would be appropriate to include in a safe harbor or exception to
protect against fraud and abuse in the context of such arrangements,
including what, if any, disclosures should be required by such safe
harbors or exceptions.
C. Please explain how ``value'' could be defined and used in a safe
harbor or exception such that OIG could evaluate ``value'' within an
arrangement to determine compliance with the safe harbor or exception.
D. In the context of health care delivery reform, payment reform,
and the anti-kickback statute, please share thoughts on definitions for
critical terminology such as:
i. Alternative payment model
ii. Care coordination services
iii. Care coordinator
iv. Clinical integration
v. Coordinated care
vi. Financial integration
vii. Gainsharing
viii. Health system
ix. Integrated care model
x. Integrated delivery system
xi. Incentive payments
xii. Outcomes-based care
xiii. Risk
xiv. Risk-sharing
xv. Value-based care
xvi. Value-based arrangement
E. Are there opportunities where OIG could clarify its position
through guidance as opposed to regulation? For example, would a law
enforcement policy statement offer sufficient protection in some
instances? If so, please elaborate.
2. Beneficiary Engagement
A. Beneficiary Incentives
i. Please provide feedback regarding the types of incentives
providers, suppliers, and others are interested in providing to
beneficiaries, how providing such incentives would contribute to or
improve quality of care, care coordination, and patient engagement,
including adherence to care plans, and whether the types of providers,
suppliers, or other entities that furnish the incentives matter from an
effectiveness and program integrity perspective. Please be as specific
as possible. Additional areas of interest include:
a. What, if any, restrictions should OIG place on the sources,
types, or frequency of beneficiary incentives that could be provided to
reduce the risk of fraud and abuse?
b. Examples of beneficiary incentive arrangements that are
appropriate and effective.
c. Should beneficiary incentives connected to medication adherence
and medication management be treated differently than other types of
beneficiary incentives? If so, how and why?
d. What, if any, disclosures should OIG require the offeror to make
to beneficiaries regarding an incentive (e.g., the source of the
incentive)?
ii. Please identify (and provide citations to) any recent studies
assessing the positive or negative effects of beneficiary incentives on
patient care or patient engagement.
iii. In the context of beneficiary incentives, please identify any
risks or benefits from the following types of potential remuneration,
as well as any safeguards to mitigate risks, and describe how these
terms should be defined for purposes of any rulemaking related to
coordinated care or value-based arrangements:
a. Cash equivalent
b. Gift card
c. In-kind items and services
d. Nonmonetary remuneration
iv. To promote care coordination and value-based care, should OIG
amend its ``Office of Inspector General Policy Statement Regarding
Gifts of Nominal Value To Medicare and Medicaid
[[Page 43610]]
Beneficiaries'' \6\ to increase ``nominal value'' from no more than $15
per item or $75 in the aggregate per patient on an annual basis? If so,
why? Please provide data or other support for any suggested changes in
the dollar amounts. Also, please provide input on whether OIG should
have a similar policy under the anti-kickback statute and, if so, how
such policy would contribute to care coordination or value-based care.
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\6\ OIG, Office of Inspector General Policy Statement Regarding
Gifts of Nominal Value To Medicare and Medicaid Beneficiaries (Dec.
7, 2016), available at https://oig.hhs.gov/fraud/docs/alertsandbulletins/OIG-Policy-Statement-Gifts-of-Nominal-Value.pdf.
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B. Cost-Sharing Obligations
i. We are interested in input about how relieving or eliminating
beneficiary cost-sharing obligations might improve care delivery,
enhance value-based arrangements, and promote quality of care. Please
describe any patient care scenarios in which cost-sharing obligations
are particularly problematic.
ii. Please describe the financial impact on providers, suppliers,
and other entities, as well as the fraud and abuse risks, if cost-
sharing amounts could be waived (i.e., the amount owed is not paid) by
participants in a care coordination or value-based arrangement. What,
if any, concerns arise if cost-sharing obligations could be subsidized
by providers, suppliers, or other entities in a care delivery
arrangement?
iii. Please describe any risks to beneficiaries and Federal health
care programs from the reduction or elimination of cost-sharing
obligations.
iv. Please describe any suggested protections or safeguards that
OIG should incorporate if we were to create a safe harbor for certain
beneficiary cost-sharing waiver or subsidy arrangements.
3. Other Related Topics of Interest
A. Current Fraud and Abuse Waivers
i. Please provide feedback on the current waivers developed for the
purposes of testing models by the Center for Medicare and Medicaid
Innovation (Innovation Center) and carrying out the Medicare Shared
Savings Program (MSSP).\7\ Feedback from parties who are using or who
are eligible to use those waivers would be helpful as we consider the
issues raised in this RFI. For example, we are interested in the
following:
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\7\ CMS, Fraud and Abuse Waivers for Select CMS Models and
Programs, available at https://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/Fraud-and-Abuse-Waivers.html.
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a. How, if at all, have stakeholders found compliance with the
waiver conditions challenging? Please be as specific as possible.
b. Are any waiver requirements particularly burdensome, such that
they impede the goals of the models, initiatives, or programs? If so,
please specify which waiver requirements and why they impede the goals
of the model, initiative, or program.
c. What waiver structures or conditions, if any, work well? Should
OIG consider any waiver structures or conditions for any future safe
harbors or exceptions related to care coordination and value-based care
(including beneficiary incentives to promote patient engagement)?
Please be as specific as possible and provide reasons.
d. One of the key safeguards to mitigate the risk of fraud or abuse
from arrangements protected by the pre-participation and participation
waivers developed pursuant to the MSSP, the Next Generation ACO Model's
participation waiver, and the Pioneer ACO Model's participation waiver
\8\ is the involvement of the accountable care organization's (ACO's)
governing body in the authorization of each arrangement. We are
interested in feedback on how the ACO governing body concept is
working, and whether and if so how, it could be applied to safe harbors
or exceptions for alternative payment models and coordinated care
arrangements.
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\8\ The Pioneer ACO model began in 2012, and the final
performance year concluded on December 31, 2016.
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e. We invite specific feedback regarding the pros and cons of fraud
and abuse protections (e.g., waivers or safe harbors) that are uniform
across different types of CMS-sponsored models, initiatives, and
programs.
B. Cybersecurity-Related Items and Services
i. We are aware of interest in donating or subsidizing
cybersecurity-related items and services to providers and others with
whom they share information. We are interested in information about the
types of cybersecurity-related items or services that entities wish to
donate or subsidize, and how existing fraud and abuse laws may pose
barriers to such arrangements. For example, we are interested in (i)
the types of persons that would be parties to, or benefit from, such
arrangements; (ii) whether any persons should be excluded from such
arrangements; (iii) the particular types of items that would be
involved in such arrangements (e.g., hardware, software, and other
items); and (iv) the types of services that would be involved in such
arrangements (e.g., testing services, training services, monitoring
services, or repair or maintenance services). Other areas of interest
include:
a. How might such items or services reduce cybersecurity risks to
the following: The donor, the recipient, patients, and other nonparties
to the arrangement?
b. Are there technical or legal barriers (besides the physician
self-referral law and the anti-kickback statute) that could prevent or
limit the arrangements?
c. Are there any potential risks or unintended consequences to such
arrangements (e.g., potential for fraud or abuse, information blocking,
or anti-competitive practices) and, if so, how might these risks be
mitigated?
d. Are there any particular risks if HHS takes no action?
C. ACO Beneficiary Incentive Program (Section 50341(b) of the
Bipartisan Budget Act of 2018) \9\
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\9\ Bipartisan Budget Act of 2018, Public Law 115-123, 115th
Cong. (2018) (enacted).
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Section 50341(b) of the Bipartisan Budget Act of 2018, which added
section 1128B(b)(3)(K) of the Act, states that ``illegal remuneration''
under the anti-kickback statute does not include ``. . . an incentive
payment made to a Medicare fee-for-service beneficiary by an ACO under
an ACO Beneficiary Incentive Program established under subsection (m)
of section 1899, if the payment is made in accordance with the
requirements of such subsection and meets such other conditions as the
Secretary may establish.''
i. For the purposes of implementing this new statutory exception
through a safe harbor, what, if any, ``other conditions'' should this
safe harbor include as protections or safeguards? Please provide
supporting reasons.
D. Telehealth (Section 50302(c) of the Bipartisan Budget Act of 2018)
\10\
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\10\ Id.
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Section 50302(c) of the Bipartisan Budget Act of 2018 creates a new
exception to the definition of ``remuneration'' in the beneficiary
inducements CMP. This exception applies to ``telehealth technologies''
provided on or after January 1, 2019, by a provider of services or a
renal dialysis facility to an individual with end-stage renal disease
(ESRD) who is receiving home dialysis for which payment is being made
under Medicare Part B. Under the statute, ``telehealth technologies''
is a term to be defined by the Secretary. The exception requires that
(i) the telehealth technologies not be offered as part of any
advertisement
[[Page 43611]]
or solicitation; (ii) the telehealth technologies must be provided for
the purpose of furnishing telehealth services related to the patient's
ESRD; and (iii) the provision of the telehealth technologies must
``meet[[hairsp]] any other requirements set forth in regulations
promulgated by the Secretary.''
i. For the purposes of this exception, please provide input on how
``telehealth technologies'' should be defined. Please provide examples
of telehealth technologies that may be used to furnish telehealth
services related to a beneficiary's ESRD (e.g., technologies that
address services on the Medicare telehealth list). Also, please
indicate whether telehealth technologies should include services. If
so, please explain, in detail, what services should be considered
``telehealth technologies.''
ii. For the purposes of this exception, should OIG include
protections or safeguards as ``any other requirements set forth in
regulations promulgated by the Secretary?'' If so, please explain what
protections or safeguards and why.
4. Intersection of Physician Self-Referral Law and Anti-Kickback
Statute
Please share any feedback regarding specific circumstances in which
(i) exceptions to the physician self-referral law and safe harbors to
the anti-kickback statute should align for purposes of the goals of
this RFI; and (ii) exceptions to the physician self-referral law in
furtherance of care coordination or value-based care should not have a
corresponding safe harbor to the anti-kickback statute.
Respondents are encouraged to provide complete but concise and
organized responses, including any relevant data and specific examples.
Respondents are not required to address every issue or respond to every
question discussed in this RFI to have their responses considered. All
responses will be considered, provided they contain information OIG can
use to identify the commenter.
Please note: This is a request for information only. This RFI is
issued solely for information and planning purposes; it does not
constitute a Request for Proposal (RFP), application, proposal
abstract, or quotation. This RFI does not commit the U.S. Government to
contract for any supplies or services or make a grant award. Further,
OIG is not seeking proposals through this RFI and will not accept
unsolicited proposals. Respondents are advised that the U.S. Government
will not pay for any information or administrative costs incurred in
response to this RFI; all costs associated with responding to this RFI
will be solely at the interested party's expense. Not responding to
this RFI does not preclude participation in any future procurement, if
conducted. It is the responsibility of the potential responders to
monitor this RFI announcement for additional information pertaining to
this request. Please note that OIG will not respond to questions about
the policy issues raised in this RFI. Contractor support personnel may
be used to review RFI responses.
Responses to this RFI are not offers and cannot be accepted by the
U.S. Government to form a binding contract or issue a grant.
Information obtained as a result of this RFI may be used by the U.S.
Government for program planning on a nonattribution basis. Respondents
should not include any information that might be considered proprietary
or confidential. This RFI should not be construed as a commitment or
authorization to incur costs for which reimbursement would be required
or sought. All submissions become U.S. Government property and will not
be returned. OIG may publicly post the comments received or a summary
thereof.
IV. Collection of Information Requirements
This document does not impose information collection requirements,
that is, reporting, recordkeeping, or third-party disclosure
requirements. However, section III of this document does contain a
general solicitation of comments in the form of a request for
information. In accordance with the implementing regulations of the
Paperwork Reduction Act (PRA), specifically 5 CFR 1320.3(h)(4), this
general solicitation is exempt from the PRA. Facts or opinions
submitted in response to general solicitations of comments from the
public, published in the Federal Register or other publications,
regardless of the form or format thereof, provided that no person is
required to supply specific information pertaining to the commenter,
other than that necessary for self-identification, as a condition of
the agency's full consideration, are not generally considered
information subject to the PRA. Consequently, there is no need for
review by the Office of Management and Budget under the authority of
the PRA (44 U.S.C. 3501 et seq.).
V. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, if we proceed with a subsequent document, we may respond to the
comments in the preamble to that document.
Dated: August 20, 2018.
Daniel R. Levinson,
Inspector General.
[FR Doc. 2018-18519 Filed 8-24-18; 8:45 am]
BILLING CODE 4152-01-P