42 U.S.C. § 291e — Projects for construction or moderniza-

Page 973 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 291e such subsection, the Surgeon General shall thereupon approve such plan or modification. (July 1, 1944, ch. 373, title VI, § 604, as added Pub. L. 88–443, § 3(a), Aug. 18, 1964, 78 Stat. 452; amend- ed Pub. L. 91–296, title I, §§ 115, 116(b), (c), 123, June 30, 1970, 84 Stat. 341, 342, 344.) Editorial Notes PRIOR PROVISIONS A prior section 291d, act July 1, 1944, ch. 373, title VI, § 621, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended Oct. 25, 1949, ch. 722, § 2(a), 63 Stat. 898; July 27, 1953, ch. 243, 67 Stat. 196; Aug. 2, 1956, ch. 871, title IV, § 401, 70 Stat. 929; Aug. 14, 1958, Pub. L. 85–664, § 1(a), 72 Stat. 616, authorized appropriations for construction of hospitals and related facilities, prior to the general amendment of this subchapter by Pub. L. 88–443. See section 291a of this title. Provisions similar to those comprising this section were contained in a prior section 291f(a), (b), act July 1, 1944, ch. 373, title VI, § 623, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041, prior to the general amendment of this subchapter by Pub. L. 88–443. AMENDMENTS 1970—Subsec. (a)(3). Pub. L. 91–296, § 115, inserted re- quirement that State advisory councils include rep- resentatives particularly concerned with education or training of health professions personnel. Subsec. (a)(4)(C). Pub. L. 91–296, § 116(b), substituted ‘‘outpatient facilities’’ for ‘‘diagnostic or treatment centers’’ and ‘‘such facilities’’ for ‘‘such centers’’. Subsec. (a)(5). Pub. L. 91–296, § 116(c), substituted ‘‘outpatient facilities’’ for ‘‘diagnostic or treatment centers’’. Subsec. (a)(13). Pub. L. 91–296, § 123, added par. (13). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (a)(13) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 1970 AMENDMENT Pub. L. 91–296, title I, § 115, June 30, 1970, 84 Stat. 341, provided that the amendment made by that section is effective July 1, 1970. TRANSFER OF FUNCTIONS Functions, powers, and duties of Secretary of Health and Human Services under subsec. (a)(8) of this section, insofar as relates to the prescription of personnel standards on a merit basis, transferred to Office of Per- sonnel Management, see section 4728(a)(3)(C) of this title. FUNDS FOR MODERNIZATION PROJECTS; CONDITIONS TO BE MET BEFORE APPROVAL Pub. L. 88–443, § 3(b)(5), Aug. 18, 1964, 78 Stat. 462, pro- vided that no application with respect to a moderniza- tion project may be approved for purposes of receiving funds from an allotment under section 291(a)(2) of this title before July 1, 1965, or before a State plan has been approved, as well as certain other requirements. See Effective Date note under section 291 of this title. 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. § 291e. Projects for construction or moderniza- tion (a) Application; contents For each project pursuant to a State plan ap- proved under this part, there shall be submitted to the Surgeon General, through the State agen- cy, an application by the State or a political subdivision thereof or by a public or other non- profit agency. If two or more such agencies join in the project, the application may be filed by one or more of such agencies. Such application shall set forth— (1) a description of the site for such project; (2) plans and specifications therefor, in ac- cordance with regulations prescribed under section 291c of this title; (3) reasonable assurance that title to such site is or will be vested in one or more of the agencies filing the application or in a public or other nonprofit agency which is to operate the facility on completion of the project; (4) reasonable assurance that adequate fi- nancial support will be available for the com- pletion of the project and for its maintenance and operation when completed; (5) reasonable assurance that all laborers and mechanics employed by contractors or subcontractors in the performance of con- struction or modernization on the project will be paid wages at rates not less than those pre- vailing on similar work in the locality as de- termined by the Secretary of Labor in accord- ance with sections 3141–3144, 3146, and 3147 of title 40; and the Secretary of Labor shall have with respect to the labor standards specified in this paragraph the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176) and section 3145 of title 40; and (6) a certification by the State agency of the Federal share for the project. (b) Approval by Surgeon General; requisites; ad- ditional approval by Secretary of Health and Human Services The Surgeon General shall approve such appli- cation if sufficient funds to pay the Federal share of the cost of such project are available from the appropriate allotment to the State, and if the Surgeon General finds (1) that the ap- plication contains such reasonable assurance as to title, financial support, and payment of pre- vailing rates of wages; (2) that the plans and specifications are in accord with the regulations prescribed pursuant to section 291c of this title; (3) that the application is in conformity with the State plan approved under section 291d of this title and contains an assurance that in the operation of the project there will be compli- ance with the applicable requirements of the regulations prescribed under section 291c(e) of this title, and with State standards for oper- ation and maintenance; and (4) that the applica- Page 974 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 291e tion has been approved and recommended by the State agency, opportunity has been provided, prior to such approval and recommendation, for consideration of the project by the public or nonprofit private agency or organization which has developed the comprehensive regional, met- ropolitan area, or other local area plan or plans referred to in section 246(b) of this title covering the area in which such project is to be located or, if there is no such agency or organization, by the State agency administering or supervising the administration of the State plan approved under section 246(a) of this title, and the appli- cation is for a project which is entitled to pri- ority over other projects within the State in ac- cordance with the regulations prescribed pursu- ant to section 291c(a) of this title. Notwith- standing the preceding sentence, the Surgeon General may approve such an application for a project for construction or modernization of a rehabilitation facility only if it is also approved by the Secretary of Health and Human Services. (c) Opportunity for hearing required prior to dis- approval No application shall be disapproved until the Surgeon General has afforded the State agency an opportunity for a hearing. (d) Amendments subject to same approval as original applications Amendment of any approved application shall be subject to approval in the same manner as an original application. (e) Outpatient facilities; requirements of appli- cants Notwithstanding any other provision of this subchapter, no application for an outpatient fa- cility shall be approved under this section un- less the applicant is (1) a State, political sub- division, or public agency, or (2) a corporation or association which owns and operates a non- profit hospital (as defined in section 291o of this title) or which provides reasonable assurance that the services of a general hospital will be available to patients of such facility who are in need of hospital care. (July 1, 1944, ch. 373, title VI, § 605, as added Pub. L. 88–443, § 3(a), Aug. 18, 1964, 78 Stat. 453; amend- ed Pub. L. 91–296, title I, §§ 111(a), 116(e), June 30, 1970, 84 Stat. 340, 342; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695.) Editorial Notes REFERENCES IN TEXT Reorganization Plan Numbered 14 of 1950, referred to in subsec. (a)(5), is set out in the Appendix to Title 5, Government Organization and Employees. CODIFICATION In subsec. (a) (5), ‘‘sections 3141–3144, 3146, and 3147 of title 40’’ substituted for ‘‘the Davis-Bacon Act, as amended (40 U.S.C. 276a—276a–5)’’ and ‘‘section 3145 of title 40’’ substituted for ‘‘section 2 of the Act of June 13, 1934, as amended (40 U.S.C. 276c)’’ on authority of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of which enacted Title 40, Public Build- ings, Property, and Works. PRIOR PROVISIONS A prior section 291e, act July 1944, ch. 373, title VI, § 622, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631, authorized Surgeon General to prescribe general regulations, prior to the general amendment of this subchapter by Pub. L. 88–443. See section 291c of this title. A prior section 291h(a), (c), 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, § 8, 63 Stat. 901, re- lated to subject matter similar to this section, prior to the general amendment of this subchapter by Pub. L. 88–443. A prior section 291v(d), act July 1, 1944, ch. 373, title VI, § 654, as added July 12, 1954, ch. 471, § 3, 68 Stat. 463, related to subject matter similar to this section, prior to the general amendment of this subchapter by Pub. L. 88–443. AMENDMENTS 1970—Subsec. (b)(4). Pub. L. 91–296, § 111(a), inserted provisions requiring that the appropriate area wide health planning agency be given an opportunity to con- sider the project for which an application is made be- fore approval is given. Subsec. (e). Pub. L. 91–296, § 116(e), substituted ‘‘an outpatient facility’’ for ‘‘a diagnostic or treatment cen- ter’’ and inserted provisions extending coverage to in- clude corporations and associations which, although not owning or operating hospitals offer services of a general hospital to patients in need of hospital care. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (b) pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 1970 AMENDMENT Pub. L. 91–296, title I, § 111(a), June 30, 1970, 84 Stat. 340, provided that the amendment made by that section is effective with respect to applications approved under this subchapter after June 30, 1970. Pub. L. 91–296, title I, § 116(e), June 30, 1970, 84 Stat. 342, applicable with respect to applications approved under this subchapter after June 30, 1970, see section 116(g) of Pub. L. 91–296, set out as a note under section 291o of this title. APPLICATIONS APPROVED PRIOR TO AUG. 18, 1964 Pub. L. 88–443, § 3(b)(1), Aug. 18, 1964, 78 Stat. 462, pro- viding that applications approved, and allotments ap- propriated prior to Aug. 18, 1964, shall be governed by this subchapter as in effect prior to such date, is set out as an Effective Date note under section 291 of this title. FUNDS FOR MODERNIZATION PROJECTS; CONDITIONS TO BE MET BEFORE APPROVAL Pub. L. 88–443, § 3(b)(5), Aug. 18, 1964, 78 Stat. 462, pro- vided that no application with respect to a moderniza- tion project may be approved for purposes of receiving funds from an allotment under section 291(a)(2) of this title before July 1, 1965, or before a State plan has been approved, as well as certain other requirements. See Effective Date note set out under section 291 of this title. 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- Page 975 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 291g 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. § 291f. Payments for construction or moderniza- tion (a) Certification of work by Surgeon General; conditions affecting payments Upon certification to the Surgeon General by the State agency, based upon inspection by it, that work has been performed upon a project, or purchases have been made, in accordance with the approved plans and specifications, and that payment of an installment is due to the appli- cant, such installment shall be paid to the State, from the applicable allotment of such State, except that (1) if the State is not author- ized by law to make payments to the applicant, or if the State so requests, the payment shall be made directly to the applicant, (2) if the Sur- geon General, after investigation or otherwise, has reason to believe that any act (or failure to act) has occurred requiring action pursuant to section 291g of this title, payment may, after he has given the State agency notice of oppor- tunity for hearing pursuant to such section, be withheld, in whole or in part, pending corrective action or action based on such hearing, and (3) the total of payments under this subsection with respect to such project may not exceed an amount equal to the Federal share of the cost of construction of such project. (b) Additional payments in cases of amended ap- plications In case an amendment to an approved applica- tion is approved as provided in section 291e of this title or the estimated cost of a project is re- vised upward, any additional payment with re- spect thereto may be made from the applicable allotment of the State for the fiscal year in which such amendment or revision is approved. (c) Administration expenses; use of portion of al- lotments to defray; manner of payment (1) At the request of any State, a portion of any allotment or allotments of such State under this part shall be available to pay one-half (or such smaller share as the State may request) of the expenditures found necessary by the Sur- geon General for the proper and efficient admin- istration during such year of the State plan ap- proved under this part; except that not more than 4 per centum of the total of the allotments of such State for a year, or $100,000, whichever is less, shall be available for such purpose for such year. Payments of amounts due under this para- graph may be made in advance or by way of re- imbursement, and in such installments, as the Surgeon General may determine. (2) Any amount paid under paragraph (1) of this subsection to any State for any fiscal year shall be paid on condition that there shall be ex- pended from State sources for such year for ad- ministration of the State plan approved under this part not less than the total amount ex- pended for such purposes from such sources dur- ing the fiscal year ending June 30, 1970. (July 1, 1944, ch. 373, title VI, § 606, as added Pub. L. 88–443, § 3(a), Aug. 18, 1964, 78 Stat. 454; amend- ed Pub. L. 91–296, title I, § 112, June 30, 1970, 84 Stat. 340.) Editorial Notes PRIOR PROVISIONS A prior section 291f, act July 1, 1944, ch. 373, title VI, § 623, as added Aug. 13, 1946, ch. 958, § 2, 60 Stat. 1041; amended June 19, 1948, ch. 554, 62 Stat. 536; Oct. 25, 1949, ch. 722, § 3(a), 63 Stat. 899, related to State plans, their submission, and their requirements, prior to the gen- eral amendment of this subchapter by Pub. L. 88–443. See section 291d of this title. Provisions similar to those comprising subsec. (a) of this section were contained in former section 291h(b), acts 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), 63 Stat. 899, prior to the general amendment of this subchapter by Pub. L. 88–443. AMENDMENTS 1970—Subsec. (c)(1). Pub. L. 91–296, § 112(1), substituted ‘‘4 per centum’’ for ‘‘2 per centum’’ and ‘‘$100,000 for $50,000’’. Subsec. (c)(2). Pub. L. 91–296, § 112(2), substituted ‘‘June 30, 1970’’ for ‘‘June 30, 1964’’. 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. EFFECTIVE DATE OF 1970 AMENDMENT Pub. L. 91–296, title I, § 112, June 30, 1970, 84 Stat. 340, provided that the amendment made by that section is effective with respect to expenditures under a State plan approved under this subchapter which are made for administration of such plan during any fiscal year beginning after June 30, 1970. 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. § 291g. Withholding of payments; noncompliance with requirements Whenever the Surgeon General, after reason- able notice and opportunity for hearing to the State agency designated as provided in section 291d(a)(1) of this title, finds— (a) that the State agency is not complying substantially with the provisions required by section 291d of this title to be included in its State plan; or (b) that any assurance required to be given in an application filed under section 291e of this title is not being or cannot be carried out; or (c) that there is a substantial failure to carry out plans and specifications approved by the Surgeon General under section 291e of this title; or