42 U.S.C. § 291h — Judicial review

Page 976 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 291h (d) that adequate State funds are not being provided annually for the direct administra- tion of the State plan, the Surgeon General may forthwith notify the State agency that— (e) no further payments will be made to the State under this part, or (f) no further payments will be made from the allotments of such State from appropria- tions under any one or more subparagraphs or paragraphs of section 291a of this title, or for any project or projects, designated by the Sur- geon General as being affected by the action or inaction referred to in paragraph (a), (b), (c), or (d) of this section, as the Surgeon General may determine to be ap- propriate under the circumstances; and, except with regard to any project for which the applica- tion has already been approved and which is not directly affected, further payments may be withheld, in whole or in part, until there is no longer any failure to comply (or carry out the assurance or plans and specifications or provide adequate State funds, as the case may be) or, if such compliance (or other action) is impossible, until the State repays or arranges for the repay- ment of Federal moneys to which the recipient was not entitled. (July 1, 1944, ch. 373, title VI, § 607, as added Pub. L. 88–443, § 3(a), Aug. 18, 1964, 78 Stat. 455.) Editorial Notes PRIOR PROVISIONS A prior section 291g, act July 1, 1944, ch. 373, title VI, § 624, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended June 29, 1948, ch. 728, § 1, 62 Stat. 1103; Oct. 25, 1949, ch. 722, §§ 3(b), 7, 63 Stat. 899, 901; Aug. 1, 1956, ch. 852, § 19(c), 70 Stat. 911; Sept. 25, 1962, Pub. L. 87–688, § 4(a)(3), 76 Stat. 587, authorized allotments to States for construction, specified their amount, and provided for availability for unexpended funds, prior to the gen- eral amendment of this subchapter by Pub. L. 88–443. See section 291b of this title. Provisions similar to those comprising this section were contained in former section 291j(a), acts July 1, 1944, ch. 373, title VI, § 632, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended Oct. 25, 1949, ch. 722, § 4, 63 Stat. 900; July 12, 1954, ch. 471, § 4(g), 68 Stat. 466, prior to the general amendment of this subchapter by Pub. L. 88–443. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. Executive Documents TRANSFER OF FUNCTIONS Office of Surgeon General abolished by section 3 of Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat. 1610, and functions thereof transferred to Sec- retary of Health, Education, and Welfare by section 1 of Reorg. Plan No. 3 of 1966, set out as a note under sec- tion 202 of this title. Office of Surgeon General reestab- lished within the Office of the Assistant Secretary for Health, see Notice of Department of Health and Human Services, Office of the Assistant Secretary for Health, Mar. 30, 1987, 52 F.R. 11754. § 291h. Judicial review (a) Refusal to approve application; procedure; ju- risdiction of court of appeals If the Surgeon General refuses to approve any application for a project submitted under sec- tion 291e of this title or section 291j of this title, the State agency through which such applica- tion was submitted, or if any State is dissatis- fied with his action under section 291g of this title such State may appeal to the United States court of appeals for the circuit in which such State is located, by filing a petition with such court within sixty days after such action. A copy of the petition shall be forthwith trans- mitted by the clerk of the court to the Surgeon General, or any officer designated by him for that purpose. The Surgeon General shall there- upon file in the court the record of the pro- ceedings on which he based his action, as pro- vided in section 2112 of title 28. Upon the filing of such petition, the court shall have jurisdic- tion to affirm the action of the Surgeon General or to set it aside, in whole or in part, tempo- rarily or permanently, but until the filing of the record, the Surgeon General may modify or set aside his order. (b) Conclusiveness of Surgeon General’s findings; remand; new or modified findings The findings of the Surgeon General as to the facts, if supported by substantial evidence, shall be conclusive, but the court, for good cause shown, may remand the case to the Surgeon General to take further evidence, and the Sur- geon General may thereupon make new or modi- fied findings of fact and may modify his previous action, and shall file in the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence. (c) Review by Supreme Court; stay of Surgeon General’s action The judgment of the court affirming or setting aside, in whole or in part, any action of the Sur- geon General shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28. The commencement of pro- ceedings under this section shall not, unless so specifically ordered by the court, operate as a stay of the Surgeon General’s action. (July 1, 1944, ch. 373, title VI, § 608, as added Pub. L. 88–443, § 3(a), Aug. 18, 1964, 78 Stat. 456.) Editorial Notes PRIOR PROVISIONS A prior section 291h, act July 1, 1944, ch. 373, title VI, § 625, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended Oct. 25, 1949, ch. 722, §§ 3(b–d), 8, 63 Stat. 899, 901; July 12, 1954, ch. 471, § 4(b), 68 Stat. 464, related to projects for construction, the application required and its contents and approval by the Surgeon General, and provided for a hearing prior to disapproval of the appli- cation, prior to the general amendment of this sub- chapter by Pub. L. 88–443. See section 291e of this title. Provisions similar to those comprising this section were contained in former section 291j(b), act July 1, 1944, ch. 373, title VI, § 632, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended June 28, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. Page 977 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 291i 1 So in original. The period probably should be a comma. 107; July 12, 1954, ch. 471, § 4(g), 68 Stat. 466; Aug. 28, 1958, Pub. L. 85–791, § 27, 72 Stat. 950, prior to the gen- eral amendment of this subchapter by Pub. L. 88–443. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. Executive Documents TRANSFER OF FUNCTIONS Office of Surgeon General abolished by section 3 of Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat. 1610, and functions thereof transferred to Sec- retary of Health, Education, and Welfare by section 1 of Reorg. Plan No. 3 of 1966, set out as a note under sec- tion 202 of this title. Office of Surgeon General reestab- lished within the Office of the Assistant Secretary for Health, see Notice of Department of Health and Human Services, Office of the Assistant Secretary for Health, Mar. 30, 1987, 52 F.R. 11754. § 291i. Recovery of expenditures under certain conditions (a) Persons liable If any facility with respect to which funds have been paid under section 291f of this title shall, at any time within 20 years after the com- pletion of construction or modernization— (1) be sold or transferred to any entity (A) which is not qualified to file an application under section 291e of this title, or (B) which is not approved as a transferee by the State agency designated pursuant to section 291d of this title, or its successor, or (2) cease to be a public health center or a public or other nonprofit hospital, outpatient facility, facility for long-term care, or reha- bilitation facility, the United States shall be entitled to recover, whether from the transferor or the transferee (or, in the case of a facility which has ceased to be public or nonprofit, from the owners thereof) an amount determined under subsection (c). (b) Notice to Secretary The transferor of a facility which is sold or transferred as described in subsection (a)(1), or the owner of a facility the use of which is changed as described in subsection (a)(2), shall provide the Secretary written notice of such sale, transfer, or change not later than the expi- ration of 10 days from the date on which such sale, transfer, or change occurs. (c) Amount of recovery; interest; interest period (1) Except as provided in paragraph (2), the amount the United States shall be entitled to recover under subsection (a) is an amount bear- ing the same ratio to the then value (as deter- mined by the agreement of the parties or in an action brought in the district court of the United States for the district for which the fa- cility involved is situated) of so much of the fa- cility as constituted an approved project or projects as the amount of the Federal participa- tion bore to the cost of the construction or mod- ernization of such project or projects. (2)(A) After the expiration of— (i) 180 days after the date of the sale, trans- fer, or change of use for which a notice is re- quired by subsection (b), in the case of a facil- ity which is sold or transferred or the use of which changes after July 18, 1984, or (ii) thirty days after July 18, 1984, or if later 180 days after the date of the sale, transfer, or change of use for which a notice is required by subsection (b), in the case of a facility which was sold or transferred or the use of which changed before July 18, 1984.1 the amount which the United States is entitled to recover under paragraph (1) with respect to a facility shall be the amount prescribed by para- graph (1) plus interest, during the period de- scribed in subparagraph (B), at a rate (deter- mined by the Secretary) based on the average of the bond equivalent of the weekly ninety-day Treasury bill auction rate. (B) The period referred to in subparagraph (A) is the period beginning— (i) in the case of a facility which was sold or transferred or the use of which changed before July 18, 1984, thirty days after such date or if later 180 days after the date of the sale, trans- fer, or change of use for which a notice is re- quired by subsection (b), (ii) in the case of a facility with respect to which notice is provided in accordance with subsection (b), upon the expiration of 180 days after the receipt of such notice, or (iii) in the case of a facility with respect to which such notice is not provided as pre- scribed by subsection (b), on the date of the sale, transfer, or change of use for which such notice was to be provided, and ending on the date the amount the United States is entitled to under paragraph (1) is col- lected. (d) Waiver (1) The Secretary may waive the recovery rights of the United States under subsection (a)(1) with respect to a facility in any State if the Secretary determines, in accordance with regulations, that the entity to which the facility was sold or transferred— (A) has established an irrevocable trust— (i) in an amount equal to the greater of twice the cost of the remaining obligation of the facility under clause (2) of section 291c(e) of this title or the amount, determined under subsection (c), that the United States is entitled to recover, and (ii) which will only be used by the entity to provide the care required by clause (2) of section 291c(e) of this title; and (B) will meet the obligation of the facility under clause (1) of section 291c(e) of this title. (2) The Secretary may waive the recovery rights of the United States under subsection (a)(2) with respect to a facility in any State if the Secretary determines, in accordance with regulations, that there is good cause for waiving such rights with respect to such facility. (e) Lien The right of recovery of the United States under subsection (a) shall not constitute a lien