Determination That an Individual Shall Not Be Deemed an Employee of the Public Health Service, 12104-12109 [2015-05027]
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S was a member of the P group. Under
§ 1.1502–32(b)(2)(i), P’s basis in its S stock is
increased to reflect S’s $40 gain immediately
before the redemption of S’s stock.
(c) Partial redemption. The facts are the
same as in paragraph (a) of this Example 9,
except that S distributes the land to P in
redemption of 20 shares of P’s stock in S.
Thus, immediately after the redemption, P
owns 75% (60 shares/80 shares) of S’s
outstanding stock, and S’s minority
shareholder owns 25% (20 shares/80 shares).
The redemption does not satisfy the
requirements of section 302(b) and is treated
under section 302(d) as a distribution to
which section 301 applies. The end of the
day rule does not apply for purposes of
determining whether P and S are members of
the same consolidated group immediately
after the redemption. Because P owns only
75% of S’s stock immediately after the
redemption, the distribution is not an
intercompany distribution described in
§ 1.1502–13(f)(2)(i). Thus, P may not exclude
any amount of the distribution that is a
dividend, and P’s basis in S’s stock is not
reduced under § 1.1502–32(b)(2)(iv). P may
be entitled to a dividends received deduction
under section 243(c) (but see section
1059(e)). For the reasons discussed in
paragraph (b) of this Example 9, S’s gain
under section 311(b) must be reported under
the end of the day rule in S’s taxable year
ending June 30, during which S was a
member of the P group.
(d) Distribution of loss property. The facts
are the same as in paragraph (a) of this
Example 9, except that the land distributed
by S to P has a fair market value of $60 rather
than $140. The end of the day rule applies
for purposes of determining the taxable year
in which S must take into account its
realized loss on the distribution of the land.
Thus, under the end of the day rule, S’s loss
on the distribution of the land, which occurs
simultaneously with S’s ceasing to be a
member, is taken into account in S’s taxable
year that ends as a result of the redemption.
However, the end of the day rule does not
apply for other purposes; for example, the
rule does not apply in determining whether
the transaction is an intercompany
distribution or in determining the attributes
(as defined in § 1.1502–13(b)(6)) of the loss.
Therefore, because S is not a member
immediately after the distribution, S’s loss on
the distribution is not recognized under
section 311(a). Under the end of the day rule,
the loss is taken into account as a noncapital,
nondeductible expense on the P group’s
consolidated return, and under § 1.1502–
32(b)(1)(i), P’s basis in its S stock is
decreased by $40 immediately before S
leaves the group.
Example 10. Extraordinary item of S
corporation—(a) Facts. On July 1, P
purchases all the stock of S, an accrual-basis
corporation with an election in effect under
section 1362(a). Prior to the sale, S had
engaged a consulting firm to find a buyer for
S’s stock, and the consulting firm’s fee was
contingent upon the successful closing of the
sale of S’s stock.
(b) Analysis. To the extent S’s payment of
the success-based fee to its consultants is
otherwise deductible, this item is an
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extraordinary item (see paragraph
(b)(2)(ii)(C)(9) of this section) that becomes
deductible on July 1 simultaneously with the
event that terminates S’s election as an S
corporation. Under paragraph (b)(1)(ii)(B)(2)
of this section, S’s obligation to pay the fee
is treated as becoming deductible on June 30
under the previous day rule.
(6) Effective/applicability date.
Paragraphs (b)(2)(i) and (b)(4) of this
section apply to consolidated return
years beginning on or after the date
these regulations are published as final
regulations in the Federal Register.
Otherwise, this paragraph (b) applies to
corporations becoming or ceasing to be
members of consolidated groups on or
after the date these regulations are
published as final regulations in the
Federal Register.
*
*
*
*
*
John Dalrymple,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2015–05123 Filed 3–5–15; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF JUSTICE
28 CFR Part 15
[Docket No. CIV 150; AG Order No. 3504–
2015]
RIN 1105–AB37
Determination That an Individual Shall
Not Be Deemed an Employee of the
Public Health Service
Department of Justice.
Proposed rule.
AGENCY:
ACTION:
The proposed rule proposes
criteria and a process by which the
Attorney General or designee may
determine that an individual shall not
be deemed an employee of the Public
Health Service for purposes of coverage
under the Federal Tort Claims Act.
DATES: Written comments must be
postmarked on or before May 5, 2015,
and electronic comments must be sent
on or before midnight Eastern time May
5, 2015.
ADDRESSES: To ensure proper handling
of comments, please reference ‘‘Docket
No. CIV 150’’ on all written and
electronic correspondence. Written
comments being sent via regular or
express mail should be sent to James G.
Touhey, Jr., Director, Torts Branch, Civil
Division, Department of Justice, Room
8098N National Place Building, 1331
Pennsylvania Avenue NW., Washington,
DC 20530. Comments may also be sent
electronically through https://
www.regulations.gov using the
SUMMARY:
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electronic comment form provided on
that site. An electronic copy of this
document is also available at the
https://www.regulations.gov Web site.
The Department will accept attachments
to electronic comments in Microsoft
Word, WordPerfect, Adobe PDF, or
Excel file formats only. The Department
will not accept any file formats other
than those specifically listed here.
Please note that the Department is
requesting that electronic comments be
submitted before midnight Eastern Time
on the day the comment period closes
because https://www.regulations.gov
terminates the public’s ability to submit
comments at midnight Eastern Time on
the day the comment period closes.
Commenters in time zones other than
Eastern Time may want to consider this
so that their electronic comments are
received. All comments sent via regular
or express mail will be considered
timely if postmarked on the day the
comment period closes.
FOR FURTHER INFORMATION CONTACT:
James G. Touhey, Jr., Director, Torts
Branch, Civil Division, Department of
Justice, Washington, DC 20530, (202)
616–4400.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments. Please
note that all comments received are
considered part of the public record and
made available for public inspection
online at https://www.regulations.gov
and in the Department’s public docket.
Such information includes personal
identifying information (such as your
name, address, etc.) voluntarily
submitted by the commenter.
You are not required to submit
personal identifying information in
order to comment on this rule.
Nevertheless, if you want to submit
personal identifying information (such
as your name, address, etc.) as part of
your comment, but do not want it to be
posted online or made available in the
public docket, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also place
all the personal identifying information
you do not want posted online or made
available in the public docket in the first
paragraph of your comment and identify
what information you want redacted.
If you want to submit confidential
business information as part of your
comment, but do not want it to be
posted online or made available in the
public docket, you must include the
phrase ‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
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within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted online or made
available in the public docket.
Personal identifying information and
confidential business information
identified and located as set forth above
will be redacted and the comment, in
redacted form, will be posted online and
placed in the Department’s public
docket file. Please note that the Freedom
of Information Act applies to all
comments received. If you wish to
inspect the agency’s public docket file
in person by appointment, please see
the ‘‘For Further Information’’
paragraph.
Discussion
The Federally Supported Health
Centers Assistance Acts of 1992 (Pub. L.
102–501) and 1995 (Pub. L. 104–73)
amended section 224 of the Public
Health Service Act (42 U.S.C. 233) to
make the Federal Tort Claims Act
(FTCA) (28 U.S.C. 1346(b), 2671–2680)
the exclusive remedy for personal injury
or death resulting from the performance
of medical, surgical, dental or related
functions by federally supported health
centers and their employees, to the
extent the centers and employees have
been deemed by the Public Health
Service, Department of Health and
Human Services, to be eligible for FTCA
coverage. Section 233(i) of title 42
provides that the Attorney General, in
consultation with the Secretary of
Health and Human Services (Secretary),
may on the record determine, after
notice and an opportunity for a full and
fair hearing, that an individual
physician or other licensed or certified
health care practitioner who is an
officer, employee, or contractor of an
entity described in 42 U.S.C. 233(g)(4)
shall not be deemed to be an employee
of the Public Health Service for
purposes of 42 U.S.C. 233 if ‘‘treating
such individual as such an employee
would expose the Government to an
unreasonably high degree of risk of
loss’’ based on certain prescribed
circumstances. This proposed rule
proposes that the determination may be
made based on one or more of the
following statutory criteria: (1) The
individual does not comply with the
policies and procedures that the entity
has implemented pursuant to 42 U.S.C.
233(h)(1); (2) the individual has a
history of claims filed against him or her
as provided for under 42 U.S.C. 233 that
is outside the norm for licensed or
certified health care practitioners within
the same specialty; (3) the individual
refused to reasonably cooperate with the
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Attorney General in defending against
any such claim; (4) the individual
provided false information relevant to
the individual’s performance of his or
her duties to the Secretary, the Attorney
General, or an applicant for or recipient
of funds under title 42 chapter 6A; or (5)
the individual was the subject of
disciplinary action taken by a state
medical licensing authority or a state or
national professional society.
The proposed rule proposes a process
for making such a determination. The
first step, pursuant to § 15.13(a), is a
determination by the ‘‘initiating
official,’’ who is a Deputy Assistant
Attorney General of the Department of
Justice’s Civil Division, that treating an
individual as an employee of the Public
Health Service may expose the
Government to an unreasonably high
degree of risk of loss. Section 15.13(a)
requires the initiating official, after
consultation with the Secretary of the
Department of Health and Human
Services, to provide notice to the
individual in question that an
administrative hearing will be held to
determine whether treating the
individual as an employee of the Public
Health Service for purposes of 42 U.S.C.
233(g) would expose the United States
to an unreasonably high degree of risk
of loss. Following a period for discovery
and depositions, to the extent
determined appropriate by an
administrative law judge under § 15.15,
the hearing is then conducted by the
administrative law judge in the manner
prescribed in § 15.14. After the hearing
is conducted and the record is closed,
§ 15.16 requires the administrative law
judge to submit written findings of fact,
conclusions of law, and a recommended
decision to the ‘‘adjudicating official,’’
who is the Assistant Attorney General
for the Department of Justice’s Civil
Division. Section 15.17(b) then gives the
parties 30 days to submit certain
additional materials, including
exceptions to the administrative law
judge’s recommended decision, to the
adjudicating official, who then must
make a final agency determination of
whether treating the individual as an
employee of the Public Health Service
for purposes of 42 U.S.C. 233(g) would
expose the United States to an
unreasonably high degree of risk of loss.
Section 15.18 provides that an
individual who is dissatisfied with the
determination may seek rehearing
within 30 days after notice of the
determination is sent, and § 15.20
allows individuals who have been
determined to expose the United States
to an unreasonably high degree of risk
of loss to apply for reinstatement after
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12105
a period of time. Consistent with 42
U.S.C. 1320a–7e(a) and 45 CFR 60.3,
60.5(h) and 60.16, the rule also provides
for the Department to notify the
National Practitioner Data Bank (NPDB),
a confidential information
clearinghouse created by Congress with
primary goals of improving health care
quality and protecting the public, of the
issuance of a final order deeming an
individual not to be an employee of the
Public Health Service under this rule.
This proposed rule would add a new
subpart B in part 15 of title 28, Code of
Federal Regulations, containing the
regulations of the Department of Justice
governing such a determination.
The Department invites comments on
any issues relating to the proposed rule.
Regulatory Flexibility Act
The Attorney General, in accordance
with the Regulatory Flexibility Act, 5
U.S.C. 605(b), has reviewed this
proposed rule and, by approving it,
certifies that it would not have a
significant economic impact on a
substantial number of small entities
because it pertains to personnel and
administrative matters affecting the
Department.
Executive Orders 12866 and 13563:
Regulatory Planning and Review
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ and in
accordance with Executive Order 13563,
‘‘Improving Regulation and Regulatory
Review.’’
The Department of Justice has
determined that this proposed rule is a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f), and
accordingly this proposed rule has been
reviewed by the Office of Management
and Budget.
Executive Orders 12866 and 13563
direct 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). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. The
Department has assessed the costs and
benefits of this proposed rule and
believes that its benefits would justify
its costs. As an initial matter, the
Department does not expect that the
proposed rule would have systemic or
large-scale costs, because it is only the
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exceptional provider who would be
subject to a de-deeming proceeding or
determination; proceedings under this
proposed rule would be rare and would
not affect the overwhelming majority of
patients, providers, or health centers.
The costs associated with the proposed
rule, then, would come in the
individual instances of its application.
A de-deeming administrative process
would impose certain limited litigationlike costs, but §§ 15.14 and 15.15
provide flexibility that will enable the
parties and administrative law judge to
avoid unduly burdensome costs when
those costs are unnecessary. In the event
that an individual is ultimately
determined to expose the United States
to an unreasonably high degree of risk
of loss, there will be certain costs and
benefits to patients, providers, and
health centers. A provider who is
deemed not to be a member of the
Public Health Service may be required
to obtain his or her own medical
malpractice insurance (as may the
health center, for matters involving the
provider that are determined not to be
covered by the FTCA) or leave the
practice. If the individual leaves the
practice, the employing center may
incur costs of replacing him or her with
a new provider. The Department expects
that substantial benefits will arise from
such replacements, as any individual
who is replaced will be one who has
been determined to create an
unreasonably high degree of risk of loss.
It is thus likely that the individual’s
replacement will provide reduced risks
of loss for the United States and better
care for patients. While there may be
instances in which an individual who
presented such a risk of loss cannot be
replaced, possibly resulting in impaired
access to care for medically underserved
health center patients, the Department
believes that these costs are
substantially outweighed by the benefits
of implementing this authority.
The Department is unable to quantify
these costs at this time, as the authority
to deem a provider not a member of the
Public Health Service has not
previously been used. However, based
on the expectation that the authority
will be used sparingly and only for
providers who expose the United States
to an unreasonably high degree of risk
of loss, the Department has concluded
that the net benefits of improved patient
care and reduced costs of malpractice
will outweigh these possible costs.
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
the Department of Justice has
determined that this proposed rule
would not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
Executive Order 13132: Federalism
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
■
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Executive Order 12988: Civil Justice
Reform
This proposed rule meets the
applicable standards provided in
sections 3(a) and 3(b)(2) of Executive
Order 12988.
Unfunded Mandates Reform Act of
1995
This proposed rule would not result
in the expenditure by state, local, and
tribal governments, in the aggregate, or
by the private sector, of $100 million or
more in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1501 et seq.
Small Business Regulatory Enforcement
Fairness Act of 1996
This proposed rule is not a major rule
as defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
proposed rule would not result in an
annual effect on the economy of $100
million or more; a major increase in cost
or prices; significant adverse effects on
competition, employment, investment,
productivity, or innovation; or the
ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
List of Subjects in 28 CFR Part 15
Claims, Government contracts,
Government employees, Health care,
Immunization, Nuclear energy.
For the reasons set forth in the
preamble, the Attorney General
proposes to amend part 15 of title 28 of
the Code of Federal Regulations as
follows:
PART 15—CERTIFICATIONS,
DECERTIFICATIONS, AND NON–
DEEMING DETERMINATIONS FOR
PURPOSES OF THE FEDERAL TORT
CLAIMS ACT
1. The authority citation for part 15 is
revised to read as follows:
Authority: 5 U.S.C. 301, 554, 556, 557, and
8477(e)(4); 10 U.S.C. 1054, 1089; 22 U.S.C.
2702, 28 U.S.C. 509, 510, and 2679; 38 U.S.C.
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7316; 42 U.S.C. 233, 2212, 2458a, and
5055(f); and sec. 2, Pub. L. 94–380, 90 Stat.
1113 (1976).
2. The heading for part 15 is revised
to read as set forth above.
■ 3. Add a heading for subpart A to read
as follows:
■
Subpart A—Certification and
Decertification in Connection With
Certain Suits Based Upon Acts or
Omissions of Federal Employees and
Other Persons
§§ 15.1, 15.2, 15.3, and 15.4
[Designated as Subpart A]
■ 4. Designate §§ 15.1 through 15.4 as
subpart A.
§§ 15.5, 15.6, 15.7, 15.8, 15.9, and
15.10 [Added and Reserved]
■ 5. Add reserved §§ 15.5 through 15.10
to newly designated subpart A.
■ 6. Add subpart B to read as follows:
Subpart B—Determination of
Individuals Deemed Not To Be
Employees of the Public Health
Service
Sec.
15.11 Purpose.
15.12 Definitions.
15.13 Notice of hearing.
15.14 Conduct of hearing.
15.15 Discovery.
15.16 Recommended decision.
15.17 Final agency determination.
15.18 Rehearing.
15.19 Effective date of a final agency
determination.
15.20 Reinstatement.
§ 15.11
Purpose.
(a) The purpose of this regulation is
to implement the notice and hearing
procedures applicable to a
determination by the Attorney General
or his designee under 42 U.S.C. 233(i)
that an individual shall not be deemed
an employee of the Public Health
Service for purposes of 42 U.S.C. 233(g).
(b) Section 233(i) of title 42 provides
that the Attorney General, in
consultation with the Secretary of
Health and Human Services, may on the
record determine, after notice and an
opportunity for a full and fair hearing,
that an individual physician or other
licensed or certified health care
practitioner who is an officer, employee,
or contractor of an entity described in
42 U.S.C. 233(g)(4) shall not be deemed
to be an employee of the Public Health
Service for purposes of 42 U.S.C. 233 if
treating such individual as such an
employee would expose the
Government to an unreasonably high
degree of risk of loss.
§ 15.12
Definitions.
As used in this regulation:
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(a) Attorney General means the
Attorney General of the United States or
any designee of the Attorney General to
whom authority has been delegated to
conduct a hearing and to make a
determination pursuant to section 233(i)
of title 42, United States Code.
(b) Adjudicating official means the
Assistant Attorney General for the Civil
Division.
(c) Entity means an entity described in
42 U.S.C. 233(g)(4).
(d) Health and Human Services
means the Department of Health and
Human Services or a division or
component of the Department of Health
and Human Services.
(e) Individual means an individual
physician or other licensed or certified
health care practitioner who is or was
an officer, employee, or contractor of an
entity described in 42 U.S.C. 233(g)(4).
(f) Initiating official means a Deputy
Assistant Attorney General of the Civil
Division of the Department of Justice or,
except for responsibilities that the
initiating official must perform
personally, his or her designee.
(g) Parties means an Individual, as
defined in paragraph (e) of this section,
and the Initiating official, as defined in
paragraph (f) of this section.
(h) Public Health Service means the
Public Health Service or a division or
component of the Public Health Service.
(i) Secretary means the Secretary of
the Department of Health and Human
Services or the Secretary’s designee.
(j) Unreasonably high degree of risk of
loss is a determination based on
consideration of one or more of the
following criteria—
(1) The individual does not comply
with the policies and procedures that
the entity has implemented pursuant to
42 U.S.C. 233(h)(1);
(2) The individual has a history of
claims filed against him or her as
provided for under 42 U.S.C. 233 that is
outside the norm for licensed or
certified health care practitioners within
the same specialty;
(3) The individual refused to
reasonably cooperate with the Attorney
General in defending against any such
claim;
(4) The individual provided false
information relevant to the individual’s
performance of his or her duties to the
Secretary, the Attorney General, or an
applicant for or recipient of funds under
title 42, chapter 6A, United States Code;
or
(5) The individual was the subject of
disciplinary action taken by a state
medical licensing authority or a state or
national professional society.
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§ 15.13
Notice of hearing.
(a) Whenever the initiating official
personally concludes that treating an
individual as an employee of the Public
Health Service may expose the
Government to an unreasonably high
degree of risk of loss, the initiating
official, after consultation with the
Secretary, shall notify the individual
that an administrative hearing will be
conducted for the purpose of
determining whether treating the
individual as an employee of the Public
Health Service for purposes of 42 U.S.C.
233(g) would expose the United States
to an unreasonably high degree of risk
of loss.
(b) The notice of hearing shall be in
writing and shall be sent by registered
or certified mail to the individual at the
individual’s last known address, or to
the individual’s attorney in the event
the Attorney General has received
written notice that the individual has
retained counsel.
(c) The notice shall contain:
(1) A statement of the nature and
purpose of the hearing;
(2) The name of the administrative
law judge;
(3) A statement of the nature of the
action proposed to be taken; and
(4) A statement of the time, date, and
location of the hearing.
(d) The hearing shall be initiated not
sooner than 60 days of the date on the
written notice of hearing.
§ 15.14
Conduct of hearing.
(a) An administrative law judge
appointed in accordance with 5 U.S.C.
3105 shall preside over the hearing.
(b) If the administrative law judge
appointed is unacceptable to the
individual, the individual shall inform
the Attorney General within 14 days of
the notification of the reasons for his or
her position. The Attorney General may
select another administrative law judge,
or affirm the initial selection. In either
case, the official shall inform the
individual of the reasons for the
decision.
(c) The administrative law judge shall
have the following powers:
(1) Administer oaths and affirmations;
(2) Issue subpoenas authorized by
law;
(3) Rule on offers of proof and receive
relevant evidence;
(4) Take depositions or have
depositions taken when the ends of
justice would be served;
(5) Regulate the course of the hearing;
(6) Hold conferences for the
settlement or simplification of the issues
by consent of the parties or by the use
of alternative means of dispute
resolution;
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(7) Inform the parties as to the
availability of one or more alternative
means of dispute resolution, and
encourage use of such methods;
(8) Dispose of procedural requests or
similar matters;
(9) Make or recommend decisions;
(10) Require and, in the discretion of
the administrative law judge, adopt
proposed findings of fact, conclusions of
law, and orders.
(11) Take other action authorized by
agency rule consistent with this
subchapter;
(12) All powers and duties reasonably
necessary to perform the functions
enumerated in paragraphs (c)(1) through
(11) of this section.
(d) The administrative law judge may
call upon the parties to consider:
(1) Simplification or clarification of
the issues;
(2) Stipulations, admissions,
agreements on documents, or other
understandings that will expedite
conduct of the hearing;
(3) Limitation of the number of
witnesses and of cumulative evidence;
(4) Such other matters as may aid in
the disposition of the case.
(e) At the discretion of the
administrative law judge, parties or
witnesses may participate in hearings by
video conference.
(f) All hearings under this part shall
be public unless otherwise ordered by
the administrative law judge.
(g) The hearing shall be conducted in
conformity with 5 U.S.C. 554–557
(sections 5–8 of the Administrative
Procedure Act).
(h) The initiating official shall have
the burden of going forward with the
evidence and shall generally present the
government’s evidence first.
(i) Technical rules of evidence shall
not apply to hearings conducted
pursuant to this part, but rules designed
to assure production of the most
credible evidence available and to
subject testimony to cross-examination
shall be applied where reasonably
necessary by the administrative law
judge. The administrative law judge
may exclude irrelevant, immaterial, or
unduly repetitious evidence. All
documents and other evidence offered
or taken for the record shall be open to
examination by the parties, and
opportunity shall be given to refute facts
and arguments advanced on either side
of the issues. A transcript shall be made
of the oral evidence except to the extent
the substance thereof is stipulated for
the record.
(j) During the time a proceeding is
before an administrative law judge, all
motions shall be addressed to the
administrative law judge and, if within
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§ 15.16
§ 15.15
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his or her delegated authority, shall be
ruled upon. Any motion upon which
the administrative law judge has no
authority to rule shall be certified to the
adjudicating official with a
recommendation. The opposing party
may answer within such time as may be
designated by the administrative law
judge. The administrative law judge
may permit further replies by both
parties.
§ 15.17
Discovery.
(a) At any time after the initiation of
the proceeding, the administrative law
judge may order, by subpoena if
necessary, the taking of a deposition and
the production of relevant documents
by the deponent. Such order may be
entered upon a showing that the
deposition is necessary for discovery
purposes, and that such discovery could
not be accomplished by voluntary
methods. Such an order may also be
entered in extraordinary circumstances
to preserve relevant evidence upon a
showing that there is substantial reason
to believe that such evidence could not
be presented through a witness at the
hearing. The decisive factors for a
determination under this subsection,
however, shall be fairness to all parties
and the requirements of due process. A
deposition may be taken orally or upon
written questions before any person
who has the power to administer oaths
and shall not exceed one day of seven
hours.
(b) Each deponent shall be duly
sworn, and any adverse party shall have
the right to cross-examine. Objections to
questions or documents shall be in short
form, stating the grounds upon which
objections are made. The questions
propounded and the answers thereto,
together with all objections made (but
not including argument or debate), shall
be reduced to writing and certified by
the person before whom the deposition
was taken. Thereafter, the person taking
the deposition shall forward the
deposition and one (1) copy thereof to
the party at whose instance the
deposition was taken and shall forward
one (1) copy to the representative of the
other party.
(c) A deposition may be admitted into
evidence as against any party who was
present or represented at the taking of
the deposition, or who had due notice
thereof, if the administrative law judge
finds that there are sufficient reasons for
admission and that the admission of the
evidence would be fair to all parties and
comport with the requirements of due
process.
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Recommended decision.
Within a reasonable time after the
close of the record of the hearings
conducted under § 15.14, the
administrative law judge shall submit
written findings of fact, conclusions of
law, and a recommended decision to the
adjudicating official. The administrative
law judge shall promptly make copies of
these documents available to the parties
and the Secretary.
Final agency determination.
(a) In hearings conducted under
§ 15.14, the adjudicating official shall
make the final agency determination, on
the basis of the record, findings,
conclusions, and recommendations
presented by the administrative law
judge.
(b) Prior to making a final agency
determination, the adjudicating official
shall give the parties an opportunity to
submit the following, within thirty (30)
days after the submission of the
administrative law judge’s
recommendations:
(1) Proposed findings and
determinations;
(2) Exceptions to the
recommendations of the administrative
law judge;
(3) Supporting reasons for the
exceptions or proposed findings or
determinations; and
(4) Final briefs summarizing the
arguments presented at the hearing.
(c) All determinations made by the
adjudicating official under this rule
shall constitute final agency actions.
After a final agency determination
under this rule that an individual shall
not be deemed to be an employee of the
Public Health Service, such individual
will be deemed not to be an employee
of the Public Health Service except
pursuant to § 15.20.
§ 15.18
Rehearing.
(a) An individual dissatisfied with a
final agency determination under
§ 15.17 may, within 30 days after the
notice of the final agency determination
is sent, request the adjudicating official
to re-review the record, and may present
additional evidence that is appropriate
and pertinent to support a different
decision.
(b) The adjudicating official may
require that another oral hearing be held
on one or more of the issues in
controversy, or permit the dissatisfied
party to present further evidence or
argument in writing, if the adjudicating
official finds that the individual has:
(1) Presented evidence or argument
that is sufficiently significant to require
the conduct of further proceedings; or
(2) Shown some defect in the conduct
of the adjudication under this subpart
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sufficient to cause substantial unfairness
or an erroneous finding in that
adjudication.
(c) Any rehearing ordered by the
adjudicating official shall be conducted
pursuant to §§ 15.13 through 15.16.
(d) A determination that an individual
may be deemed to be an employee of the
Public Health Service for purposes of 42
U.S.C. 233 pursuant to this section shall
be distributed in the same manner as
provided in § 15.19.
§ 15.19 Effective date of a final agency
determination.
(a) A final agency determination
under § 15.17 that an individual shall
not be deemed to be an employee of the
Public Health Service for purposes of 42
U.S.C. 233 shall be provided to the
Department of Health and Human
Services and sent by certified or
registered mail to the individual and to
the entity employing such individual if
the individual is currently an officer,
employee, or contractor of an entity
described in 42 U.S.C. 233(g)(4). In the
event the individual is no longer an
officer, employee, or contractor of such
an entity, the determination shall be
sent by certified or registered mail to the
individual and to the last entity
described in 42 U.S.C. 233(g)(4) at
which such individual was an officer,
employee, or contractor.
(b) A final agency determination shall
be effective upon the date the written
determination is received by such
entity.
(c) An adverse final agency
determination shall apply to all acts or
omissions of the individual occurring
after the date the adverse final
determination is received by such
entity.
(d) The Attorney General will inform
the National Practitioner Data Bank of
any final agency determination under
§ 15.17 that an individual shall not be
deemed to be an employee of the Public
Health Service for purposes of 42 U.S.C.
233.
§ 15.20
Reinstatement.
(a) No less than five years after the
time for rehearing has expired, and no
more often than every five years, an
individual who has been the subject of
a final agency determination under
§ 15.17 may petition the Attorney
General for reconsideration of that
determination and reinstatement. The
individual bears the burden of proof and
persuasion.
(b) In support of the petition for
reinstatement, the individual shall
submit relevant evidence relating to the
period since the original proceedings
under this subpart and a statement
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demonstrating that treating the
individual as an employee of the Public
Health Service for purposes of 42 U.S.C.
233(g) would no longer expose the
United States to an unreasonably high
degree of risk of loss.
(c) Upon receiving a petition for
reinstatement, the initiating official
shall determine, in the initiating
official’s unreviewable discretion,
whether the petition makes a prima
facie case that no longer would expose
the United States to an unreasonably
high degree of risk of loss. The initiating
official’s determination that a petition
does not make a prima facie case is not
subject to further review.
(d) Upon a prima facie case having
been made, an administrative law judge
shall be appointed in accordance with 5
U.S.C. 3105 and shall conduct such
proceedings pursuant to §§ 15.13
through 15.16 as the administrative law
judge deems necessary, in his or her
sole discretion, to determine whether
the individual has established that
treating the individual as an employee
of the Public Health Service for
purposes of 42 U.S.C. 233(g) would no
longer expose the United States to an
unreasonably high degree of risk of loss,
and shall submit written findings of
fact, conclusions of law, and a
recommended decision to the
adjudicating official pursuant to § 15.16.
(e) On a petition for reinstatement, the
adjudicating official shall make the final
agency determination, on the basis of
the record, findings, conclusions, and
recommendations presented by the
administrative law judge, which shall
include the record from the original
determination and any petition for
rehearing. All determinations made by
the adjudicating official under this rule
shall constitute final agency actions.
(f) A determination that an individual
is reinstated pursuant to this section
shall be distributed in the same manner
as provided in § 15.19.
Dated: February 25, 2015.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2015–05027 Filed 3–5–15; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2014–0528; FRL–9924–04Region 7]
Approval and Promulgation of
Implementation Plans; State of
Kansas; Infrastructure SIP
Requirements for the 2010 Sulfur
Dioxide National Ambient Air Quality
Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
elements of a State Implementation Plan
(SIP) submission from the State of
Kansas addressing the applicable
requirements of Clean Air Act (CAA)
section 110 for the 2010 National
Ambient Air Quality Standards
(NAAQS) for Sulfur Dioxide (SO2),
which requires that each state adopt and
submit a SIP to support implementation,
maintenance, and enforcement of each
new or revised NAAQS promulgated by
EPA. These SIPs are commonly referred
to as ‘‘infrastructure’’ SIPs. The
infrastructure requirements are designed
to ensure that the structural components
of each state’s air quality management
program are adequate to meet the state’s
responsibilities under the CAA.
DATES: Comments must be received on
or before April 6, 2015.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R07–
OAR–2014–0528, by one of the
following methods:
1. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
2. Email: kemp.lachala@epa.gov.
3. Mail: Ms. Lachala Kemp, Air
Planning and Development Branch, U.S.
Environmental Protection Agency,
Region 7, Air and Waste Management
Division, 11201 Renner Boulevard,
Lenexa, Kansas 66219.
4. Hand Delivery or Courier: Deliver
your comments to Ms. Lachala Kemp,
Air Planning and Development Branch,
U.S. Environmental Protection Agency,
Region 7, Air and Waste Management
Division, 11201 Renner Boulevard,
Lenexa, Kansas 66219.
Instructions: Direct your comments to
Docket ID No. EPA–R07–OAR–2014–
0528. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
SUMMARY:
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12109
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through https://
www.regulations.gov or email
information that you consider to be CBI
or otherwise protected. The https://
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and should be free of any
defects or viruses.
Docket: All documents in the
electronic docket are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically at https://
www.regulations.gov or in hard copy at
U.S. Environmental Protection Agency,
Region 7, 11201 Renner Boulevard,
Lenexa, Kansas 66219 from 8:00 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The interested
persons wanting to examine these
documents should make an
appointment with the office at least 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Ms.
Lachala Kemp, Air Planning and
Development Branch, U.S.
Environmental Protection Agency,
Region 7, 11201 Renner Boulevard,
Lenexa, KS 66219; telephone number:
(913) 551–7214; fax number: (913) 551–
7065; email address: kemp.lachala@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer
to EPA. This section provides additional
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]]>Agencies
[Federal Register Volume 80, Number 44 (Friday, March 6, 2015)]
[Proposed Rules]
[Pages 12104-12109]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05027]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 15
[Docket No. CIV 150; AG Order No. 3504-2015]
RIN 1105-AB37
Determination That an Individual Shall Not Be Deemed an Employee
of the Public Health Service
AGENCY: Department of Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The proposed rule proposes criteria and a process by which the
Attorney General or designee may determine that an individual shall not
be deemed an employee of the Public Health Service for purposes of
coverage under the Federal Tort Claims Act.
DATES: Written comments must be postmarked on or before May 5, 2015,
and electronic comments must be sent on or before midnight Eastern time
May 5, 2015.
ADDRESSES: To ensure proper handling of comments, please reference
``Docket No. CIV 150'' on all written and electronic correspondence.
Written comments being sent via regular or express mail should be sent
to James G. Touhey, Jr., Director, Torts Branch, Civil Division,
Department of Justice, Room 8098N National Place Building, 1331
Pennsylvania Avenue NW., Washington, DC 20530. Comments may also be
sent electronically through https://www.regulations.gov using the
electronic comment form provided on that site. An electronic copy of
this document is also available at the https://www.regulations.gov Web
site. The Department will accept attachments to electronic comments in
Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. The
Department will not accept any file formats other than those
specifically listed here.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Time on the day the
comment period closes because https://www.regulations.gov terminates the
public's ability to submit comments at midnight Eastern Time on the day
the comment period closes. Commenters in time zones other than Eastern
Time may want to consider this so that their electronic comments are
received. All comments sent via regular or express mail will be
considered timely if postmarked on the day the comment period closes.
FOR FURTHER INFORMATION CONTACT: James G. Touhey, Jr., Director, Torts
Branch, Civil Division, Department of Justice, Washington, DC 20530,
(202) 616-4400.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments. Please note that all comments received
are considered part of the public record and made available for public
inspection online at https://www.regulations.gov and in the Department's
public docket. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name, address, etc.) as
part of your comment, but do not want it to be posted online or made
available in the public docket, you must include the phrase ``PERSONAL
IDENTIFYING INFORMATION'' in the first paragraph of your comment. You
must also place all the personal identifying information you do not
want posted online or made available in the public docket in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted
[[Page 12105]]
within the comment. If a comment has so much confidential business
information that it cannot be effectively redacted, all or part of that
comment may not be posted online or made available in the public
docket.
Personal identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the ``For Further Information'' paragraph.
Discussion
The Federally Supported Health Centers Assistance Acts of 1992
(Pub. L. 102-501) and 1995 (Pub. L. 104-73) amended section 224 of the
Public Health Service Act (42 U.S.C. 233) to make the Federal Tort
Claims Act (FTCA) (28 U.S.C. 1346(b), 2671-2680) the exclusive remedy
for personal injury or death resulting from the performance of medical,
surgical, dental or related functions by federally supported health
centers and their employees, to the extent the centers and employees
have been deemed by the Public Health Service, Department of Health and
Human Services, to be eligible for FTCA coverage. Section 233(i) of
title 42 provides that the Attorney General, in consultation with the
Secretary of Health and Human Services (Secretary), may on the record
determine, after notice and an opportunity for a full and fair hearing,
that an individual physician or other licensed or certified health care
practitioner who is an officer, employee, or contractor of an entity
described in 42 U.S.C. 233(g)(4) shall not be deemed to be an employee
of the Public Health Service for purposes of 42 U.S.C. 233 if
``treating such individual as such an employee would expose the
Government to an unreasonably high degree of risk of loss'' based on
certain prescribed circumstances. This proposed rule proposes that the
determination may be made based on one or more of the following
statutory criteria: (1) The individual does not comply with the
policies and procedures that the entity has implemented pursuant to 42
U.S.C. 233(h)(1); (2) the individual has a history of claims filed
against him or her as provided for under 42 U.S.C. 233 that is outside
the norm for licensed or certified health care practitioners within the
same specialty; (3) the individual refused to reasonably cooperate with
the Attorney General in defending against any such claim; (4) the
individual provided false information relevant to the individual's
performance of his or her duties to the Secretary, the Attorney
General, or an applicant for or recipient of funds under title 42
chapter 6A; or (5) the individual was the subject of disciplinary
action taken by a state medical licensing authority or a state or
national professional society.
The proposed rule proposes a process for making such a
determination. The first step, pursuant to Sec. 15.13(a), is a
determination by the ``initiating official,'' who is a Deputy Assistant
Attorney General of the Department of Justice's Civil Division, that
treating an individual as an employee of the Public Health Service may
expose the Government to an unreasonably high degree of risk of loss.
Section 15.13(a) requires the initiating official, after consultation
with the Secretary of the Department of Health and Human Services, to
provide notice to the individual in question that an administrative
hearing will be held to determine whether treating the individual as an
employee of the Public Health Service for purposes of 42 U.S.C. 233(g)
would expose the United States to an unreasonably high degree of risk
of loss. Following a period for discovery and depositions, to the
extent determined appropriate by an administrative law judge under
Sec. 15.15, the hearing is then conducted by the administrative law
judge in the manner prescribed in Sec. 15.14. After the hearing is
conducted and the record is closed, Sec. 15.16 requires the
administrative law judge to submit written findings of fact,
conclusions of law, and a recommended decision to the ``adjudicating
official,'' who is the Assistant Attorney General for the Department of
Justice's Civil Division. Section 15.17(b) then gives the parties 30
days to submit certain additional materials, including exceptions to
the administrative law judge's recommended decision, to the
adjudicating official, who then must make a final agency determination
of whether treating the individual as an employee of the Public Health
Service for purposes of 42 U.S.C. 233(g) would expose the United States
to an unreasonably high degree of risk of loss. Section 15.18 provides
that an individual who is dissatisfied with the determination may seek
rehearing within 30 days after notice of the determination is sent, and
Sec. 15.20 allows individuals who have been determined to expose the
United States to an unreasonably high degree of risk of loss to apply
for reinstatement after a period of time. Consistent with 42 U.S.C.
1320a-7e(a) and 45 CFR 60.3, 60.5(h) and 60.16, the rule also provides
for the Department to notify the National Practitioner Data Bank
(NPDB), a confidential information clearinghouse created by Congress
with primary goals of improving health care quality and protecting the
public, of the issuance of a final order deeming an individual not to
be an employee of the Public Health Service under this rule.
This proposed rule would add a new subpart B in part 15 of title
28, Code of Federal Regulations, containing the regulations of the
Department of Justice governing such a determination.
The Department invites comments on any issues relating to the
proposed rule.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this proposed rule and, by approving
it, certifies that it would not have a significant economic impact on a
substantial number of small entities because it pertains to personnel
and administrative matters affecting the Department.
Executive Orders 12866 and 13563: Regulatory Planning and Review
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' and in
accordance with Executive Order 13563, ``Improving Regulation and
Regulatory Review.''
The Department of Justice has determined that this proposed rule is
a ``significant regulatory action'' under Executive Order 12866,
section 3(f), and accordingly this proposed rule has been reviewed by
the Office of Management and Budget.
Executive Orders 12866 and 13563 direct 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). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. The Department has assessed the costs and benefits of this
proposed rule and believes that its benefits would justify its costs.
As an initial matter, the Department does not expect that the proposed
rule would have systemic or large-scale costs, because it is only the
[[Page 12106]]
exceptional provider who would be subject to a de-deeming proceeding or
determination; proceedings under this proposed rule would be rare and
would not affect the overwhelming majority of patients, providers, or
health centers. The costs associated with the proposed rule, then,
would come in the individual instances of its application. A de-deeming
administrative process would impose certain limited litigation-like
costs, but Sec. Sec. 15.14 and 15.15 provide flexibility that will
enable the parties and administrative law judge to avoid unduly
burdensome costs when those costs are unnecessary. In the event that an
individual is ultimately determined to expose the United States to an
unreasonably high degree of risk of loss, there will be certain costs
and benefits to patients, providers, and health centers. A provider who
is deemed not to be a member of the Public Health Service may be
required to obtain his or her own medical malpractice insurance (as may
the health center, for matters involving the provider that are
determined not to be covered by the FTCA) or leave the practice. If the
individual leaves the practice, the employing center may incur costs of
replacing him or her with a new provider. The Department expects that
substantial benefits will arise from such replacements, as any
individual who is replaced will be one who has been determined to
create an unreasonably high degree of risk of loss. It is thus likely
that the individual's replacement will provide reduced risks of loss
for the United States and better care for patients. While there may be
instances in which an individual who presented such a risk of loss
cannot be replaced, possibly resulting in impaired access to care for
medically underserved health center patients, the Department believes
that these costs are substantially outweighed by the benefits of
implementing this authority.
The Department is unable to quantify these costs at this time, as
the authority to deem a provider not a member of the Public Health
Service has not previously been used. However, based on the expectation
that the authority will be used sparingly and only for providers who
expose the United States to an unreasonably high degree of risk of
loss, the Department has concluded that the net benefits of improved
patient care and reduced costs of malpractice will outweigh these
possible costs.
Executive Order 13132: Federalism
This proposed rule would not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, the Department of Justice has determined that this
proposed rule would not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards provided in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This proposed rule would not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 804. This proposed rule would not result in an annual effect on
the economy of $100 million or more; a major increase in cost or
prices; significant adverse effects on competition, employment,
investment, productivity, or innovation; or the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets.
List of Subjects in 28 CFR Part 15
Claims, Government contracts, Government employees, Health care,
Immunization, Nuclear energy.
For the reasons set forth in the preamble, the Attorney General
proposes to amend part 15 of title 28 of the Code of Federal
Regulations as follows:
PART 15--CERTIFICATIONS, DECERTIFICATIONS, AND NON-DEEMING
DETERMINATIONS FOR PURPOSES OF THE FEDERAL TORT CLAIMS ACT
0
1. The authority citation for part 15 is revised to read as follows:
Authority: 5 U.S.C. 301, 554, 556, 557, and 8477(e)(4); 10
U.S.C. 1054, 1089; 22 U.S.C. 2702, 28 U.S.C. 509, 510, and 2679; 38
U.S.C. 7316; 42 U.S.C. 233, 2212, 2458a, and 5055(f); and sec. 2,
Pub. L. 94-380, 90 Stat. 1113 (1976).
0
2. The heading for part 15 is revised to read as set forth above.
0
3. Add a heading for subpart A to read as follows:
Subpart A--Certification and Decertification in Connection With
Certain Suits Based Upon Acts or Omissions of Federal Employees and
Other Persons
Sec. Sec. 15.1, 15.2, 15.3, and 15.4 [Designated as Subpart A]
0
4. Designate Sec. Sec. 15.1 through 15.4 as subpart A.
Sec. Sec. 15.5, 15.6, 15.7, 15.8, 15.9, and 15.10 [Added and
Reserved]
0
5. Add reserved Sec. Sec. 15.5 through 15.10 to newly designated
subpart A.
0
6. Add subpart B to read as follows:
Subpart B--Determination of Individuals Deemed Not To Be Employees
of the Public Health Service
Sec.
15.11 Purpose.
15.12 Definitions.
15.13 Notice of hearing.
15.14 Conduct of hearing.
15.15 Discovery.
15.16 Recommended decision.
15.17 Final agency determination.
15.18 Rehearing.
15.19 Effective date of a final agency determination.
15.20 Reinstatement.
Sec. 15.11 Purpose.
(a) The purpose of this regulation is to implement the notice and
hearing procedures applicable to a determination by the Attorney
General or his designee under 42 U.S.C. 233(i) that an individual shall
not be deemed an employee of the Public Health Service for purposes of
42 U.S.C. 233(g).
(b) Section 233(i) of title 42 provides that the Attorney General,
in consultation with the Secretary of Health and Human Services, may on
the record determine, after notice and an opportunity for a full and
fair hearing, that an individual physician or other licensed or
certified health care practitioner who is an officer, employee, or
contractor of an entity described in 42 U.S.C. 233(g)(4) shall not be
deemed to be an employee of the Public Health Service for purposes of
42 U.S.C. 233 if treating such individual as such an employee would
expose the Government to an unreasonably high degree of risk of loss.
Sec. 15.12 Definitions.
As used in this regulation:
[[Page 12107]]
(a) Attorney General means the Attorney General of the United
States or any designee of the Attorney General to whom authority has
been delegated to conduct a hearing and to make a determination
pursuant to section 233(i) of title 42, United States Code.
(b) Adjudicating official means the Assistant Attorney General for
the Civil Division.
(c) Entity means an entity described in 42 U.S.C. 233(g)(4).
(d) Health and Human Services means the Department of Health and
Human Services or a division or component of the Department of Health
and Human Services.
(e) Individual means an individual physician or other licensed or
certified health care practitioner who is or was an officer, employee,
or contractor of an entity described in 42 U.S.C. 233(g)(4).
(f) Initiating official means a Deputy Assistant Attorney General
of the Civil Division of the Department of Justice or, except for
responsibilities that the initiating official must perform personally,
his or her designee.
(g) Parties means an Individual, as defined in paragraph (e) of
this section, and the Initiating official, as defined in paragraph (f)
of this section.
(h) Public Health Service means the Public Health Service or a
division or component of the Public Health Service.
(i) Secretary means the Secretary of the Department of Health and
Human Services or the Secretary's designee.
(j) Unreasonably high degree of risk of loss is a determination
based on consideration of one or more of the following criteria--
(1) The individual does not comply with the policies and procedures
that the entity has implemented pursuant to 42 U.S.C. 233(h)(1);
(2) The individual has a history of claims filed against him or her
as provided for under 42 U.S.C. 233 that is outside the norm for
licensed or certified health care practitioners within the same
specialty;
(3) The individual refused to reasonably cooperate with the
Attorney General in defending against any such claim;
(4) The individual provided false information relevant to the
individual's performance of his or her duties to the Secretary, the
Attorney General, or an applicant for or recipient of funds under title
42, chapter 6A, United States Code; or
(5) The individual was the subject of disciplinary action taken by
a state medical licensing authority or a state or national professional
society.
Sec. 15.13 Notice of hearing.
(a) Whenever the initiating official personally concludes that
treating an individual as an employee of the Public Health Service may
expose the Government to an unreasonably high degree of risk of loss,
the initiating official, after consultation with the Secretary, shall
notify the individual that an administrative hearing will be conducted
for the purpose of determining whether treating the individual as an
employee of the Public Health Service for purposes of 42 U.S.C. 233(g)
would expose the United States to an unreasonably high degree of risk
of loss.
(b) The notice of hearing shall be in writing and shall be sent by
registered or certified mail to the individual at the individual's last
known address, or to the individual's attorney in the event the
Attorney General has received written notice that the individual has
retained counsel.
(c) The notice shall contain:
(1) A statement of the nature and purpose of the hearing;
(2) The name of the administrative law judge;
(3) A statement of the nature of the action proposed to be taken;
and
(4) A statement of the time, date, and location of the hearing.
(d) The hearing shall be initiated not sooner than 60 days of the
date on the written notice of hearing.
Sec. 15.14 Conduct of hearing.
(a) An administrative law judge appointed in accordance with 5
U.S.C. 3105 shall preside over the hearing.
(b) If the administrative law judge appointed is unacceptable to
the individual, the individual shall inform the Attorney General within
14 days of the notification of the reasons for his or her position. The
Attorney General may select another administrative law judge, or affirm
the initial selection. In either case, the official shall inform the
individual of the reasons for the decision.
(c) The administrative law judge shall have the following powers:
(1) Administer oaths and affirmations;
(2) Issue subpoenas authorized by law;
(3) Rule on offers of proof and receive relevant evidence;
(4) Take depositions or have depositions taken when the ends of
justice would be served;
(5) Regulate the course of the hearing;
(6) Hold conferences for the settlement or simplification of the
issues by consent of the parties or by the use of alternative means of
dispute resolution;
(7) Inform the parties as to the availability of one or more
alternative means of dispute resolution, and encourage use of such
methods;
(8) Dispose of procedural requests or similar matters;
(9) Make or recommend decisions;
(10) Require and, in the discretion of the administrative law
judge, adopt proposed findings of fact, conclusions of law, and orders.
(11) Take other action authorized by agency rule consistent with
this subchapter;
(12) All powers and duties reasonably necessary to perform the
functions enumerated in paragraphs (c)(1) through (11) of this section.
(d) The administrative law judge may call upon the parties to
consider:
(1) Simplification or clarification of the issues;
(2) Stipulations, admissions, agreements on documents, or other
understandings that will expedite conduct of the hearing;
(3) Limitation of the number of witnesses and of cumulative
evidence;
(4) Such other matters as may aid in the disposition of the case.
(e) At the discretion of the administrative law judge, parties or
witnesses may participate in hearings by video conference.
(f) All hearings under this part shall be public unless otherwise
ordered by the administrative law judge.
(g) The hearing shall be conducted in conformity with 5 U.S.C. 554-
557 (sections 5-8 of the Administrative Procedure Act).
(h) The initiating official shall have the burden of going forward
with the evidence and shall generally present the government's evidence
first.
(i) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules designed to assure
production of the most credible evidence available and to subject
testimony to cross-examination shall be applied where reasonably
necessary by the administrative law judge. The administrative law judge
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties, and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record.
(j) During the time a proceeding is before an administrative law
judge, all motions shall be addressed to the administrative law judge
and, if within
[[Page 12108]]
his or her delegated authority, shall be ruled upon. Any motion upon
which the administrative law judge has no authority to rule shall be
certified to the adjudicating official with a recommendation. The
opposing party may answer within such time as may be designated by the
administrative law judge. The administrative law judge may permit
further replies by both parties.
Sec. 15.15 Discovery.
(a) At any time after the initiation of the proceeding, the
administrative law judge may order, by subpoena if necessary, the
taking of a deposition and the production of relevant documents by the
deponent. Such order may be entered upon a showing that the deposition
is necessary for discovery purposes, and that such discovery could not
be accomplished by voluntary methods. Such an order may also be entered
in extraordinary circumstances to preserve relevant evidence upon a
showing that there is substantial reason to believe that such evidence
could not be presented through a witness at the hearing. The decisive
factors for a determination under this subsection, however, shall be
fairness to all parties and the requirements of due process. A
deposition may be taken orally or upon written questions before any
person who has the power to administer oaths and shall not exceed one
day of seven hours.
(b) Each deponent shall be duly sworn, and any adverse party shall
have the right to cross-examine. Objections to questions or documents
shall be in short form, stating the grounds upon which objections are
made. The questions propounded and the answers thereto, together with
all objections made (but not including argument or debate), shall be
reduced to writing and certified by the person before whom the
deposition was taken. Thereafter, the person taking the deposition
shall forward the deposition and one (1) copy thereof to the party at
whose instance the deposition was taken and shall forward one (1) copy
to the representative of the other party.
(c) A deposition may be admitted into evidence as against any party
who was present or represented at the taking of the deposition, or who
had due notice thereof, if the administrative law judge finds that
there are sufficient reasons for admission and that the admission of
the evidence would be fair to all parties and comport with the
requirements of due process.
Sec. 15.16 Recommended decision.
Within a reasonable time after the close of the record of the
hearings conducted under Sec. 15.14, the administrative law judge
shall submit written findings of fact, conclusions of law, and a
recommended decision to the adjudicating official. The administrative
law judge shall promptly make copies of these documents available to
the parties and the Secretary.
Sec. 15.17 Final agency determination.
(a) In hearings conducted under Sec. 15.14, the adjudicating
official shall make the final agency determination, on the basis of the
record, findings, conclusions, and recommendations presented by the
administrative law judge.
(b) Prior to making a final agency determination, the adjudicating
official shall give the parties an opportunity to submit the following,
within thirty (30) days after the submission of the administrative law
judge's recommendations:
(1) Proposed findings and determinations;
(2) Exceptions to the recommendations of the administrative law
judge;
(3) Supporting reasons for the exceptions or proposed findings or
determinations; and
(4) Final briefs summarizing the arguments presented at the
hearing.
(c) All determinations made by the adjudicating official under this
rule shall constitute final agency actions. After a final agency
determination under this rule that an individual shall not be deemed to
be an employee of the Public Health Service, such individual will be
deemed not to be an employee of the Public Health Service except
pursuant to Sec. 15.20.
Sec. 15.18 Rehearing.
(a) An individual dissatisfied with a final agency determination
under Sec. 15.17 may, within 30 days after the notice of the final
agency determination is sent, request the adjudicating official to re-
review the record, and may present additional evidence that is
appropriate and pertinent to support a different decision.
(b) The adjudicating official may require that another oral hearing
be held on one or more of the issues in controversy, or permit the
dissatisfied party to present further evidence or argument in writing,
if the adjudicating official finds that the individual has:
(1) Presented evidence or argument that is sufficiently significant
to require the conduct of further proceedings; or
(2) Shown some defect in the conduct of the adjudication under this
subpart sufficient to cause substantial unfairness or an erroneous
finding in that adjudication.
(c) Any rehearing ordered by the adjudicating official shall be
conducted pursuant to Sec. Sec. 15.13 through 15.16.
(d) A determination that an individual may be deemed to be an
employee of the Public Health Service for purposes of 42 U.S.C. 233
pursuant to this section shall be distributed in the same manner as
provided in Sec. 15.19.
Sec. 15.19 Effective date of a final agency determination.
(a) A final agency determination under Sec. 15.17 that an
individual shall not be deemed to be an employee of the Public Health
Service for purposes of 42 U.S.C. 233 shall be provided to the
Department of Health and Human Services and sent by certified or
registered mail to the individual and to the entity employing such
individual if the individual is currently an officer, employee, or
contractor of an entity described in 42 U.S.C. 233(g)(4). In the event
the individual is no longer an officer, employee, or contractor of such
an entity, the determination shall be sent by certified or registered
mail to the individual and to the last entity described in 42 U.S.C.
233(g)(4) at which such individual was an officer, employee, or
contractor.
(b) A final agency determination shall be effective upon the date
the written determination is received by such entity.
(c) An adverse final agency determination shall apply to all acts
or omissions of the individual occurring after the date the adverse
final determination is received by such entity.
(d) The Attorney General will inform the National Practitioner Data
Bank of any final agency determination under Sec. 15.17 that an
individual shall not be deemed to be an employee of the Public Health
Service for purposes of 42 U.S.C. 233.
Sec. 15.20 Reinstatement.
(a) No less than five years after the time for rehearing has
expired, and no more often than every five years, an individual who has
been the subject of a final agency determination under Sec. 15.17 may
petition the Attorney General for reconsideration of that determination
and reinstatement. The individual bears the burden of proof and
persuasion.
(b) In support of the petition for reinstatement, the individual
shall submit relevant evidence relating to the period since the
original proceedings under this subpart and a statement
[[Page 12109]]
demonstrating that treating the individual as an employee of the Public
Health Service for purposes of 42 U.S.C. 233(g) would no longer expose
the United States to an unreasonably high degree of risk of loss.
(c) Upon receiving a petition for reinstatement, the initiating
official shall determine, in the initiating official's unreviewable
discretion, whether the petition makes a prima facie case that no
longer would expose the United States to an unreasonably high degree of
risk of loss. The initiating official's determination that a petition
does not make a prima facie case is not subject to further review.
(d) Upon a prima facie case having been made, an administrative law
judge shall be appointed in accordance with 5 U.S.C. 3105 and shall
conduct such proceedings pursuant to Sec. Sec. 15.13 through 15.16 as
the administrative law judge deems necessary, in his or her sole
discretion, to determine whether the individual has established that
treating the individual as an employee of the Public Health Service for
purposes of 42 U.S.C. 233(g) would no longer expose the United States
to an unreasonably high degree of risk of loss, and shall submit
written findings of fact, conclusions of law, and a recommended
decision to the adjudicating official pursuant to Sec. 15.16.
(e) On a petition for reinstatement, the adjudicating official
shall make the final agency determination, on the basis of the record,
findings, conclusions, and recommendations presented by the
administrative law judge, which shall include the record from the
original determination and any petition for rehearing. All
determinations made by the adjudicating official under this rule shall
constitute final agency actions.
(f) A determination that an individual is reinstated pursuant to
this section shall be distributed in the same manner as provided in
Sec. 15.19.
Dated: February 25, 2015.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2015-05027 Filed 3-5-15; 8:45 am]
BILLING CODE 4410-12-P
