80 FR 12104 - Determination That an Individual Shall Not Be Deemed an Employee of the Public Health Service

DEPARTMENT OF JUSTICE

Federal Register Volume 80, Issue 44 (March 6, 2015)

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.

[Federal Register Volume 80, Number 44 (Friday, March 6, 2015)]
[Proposed Rules]
[Pages 12104-12109]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-05027]


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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.

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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 http://www.regulations.gov using the 
electronic comment form provided on that site. An electronic copy of 
this document is also available at the http://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 http://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 http://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]
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