Appellate Division Practice Manual
What is this practice manual and who is it for?
How can I find out whether the Board has jurisdiction to review my appeal and if so, what procedures apply?
Who are parties in appeals before the Board?
What are the prerequisites for Board review under 45 C.F.R. Part 16?
What is a notice of appeal under Part 16?
What happens next in appeals governed by Part 16?
What kinds of documents have to be filed in an appeal governed by Part 16?
Are the documents I send to the Board kept confidential?
What other opportunities are there for input from parties with appeals governed by Part 16, besides the briefs and appeal files?
Who decides appeals?
How are the procedures different in a case involving a Head Start suspension, termination or denial of refunding?
How are the procedures different in appeals of Administrative Law Judge decisions?
Will the Board consider an interlocutory appeal of a ruling by an Administrative Law Judge?
What if I need more time to prepare a submission to the Board?
How do I file submissions with the Board?
Are there page limits on submissions to the Board?
What if I need to talk to somebody about my case?
Who has the burden of proof in a case before the Board?
What is different about the procedures and burden of proof in disputes involving $25,000 or less?
What if I need to get documents or information from the federal agency? Does the Board have discovery procedures?
What is the relationship between Board processes and requests under the Freedom of Information Act (FOIA)?
What information can an appellant expect to obtain?
Can a party use interrogatories or depositions in appeals before the Board?
Can I obtain a subpoena to get a witness I need to testify in an appeal before the Board?
What is the sanction for failure to comply with a Board order?
Are hearings or conferences held in all cases?
What is a conference?
When and why would a conference be held?
What happens at a typical conference?
May I submit evidence at a conference?
What is an oral argument?
When and why would an oral argument be held?
What happens at a typical oral argument?
What is an evidentiary hearing?
When and why would an evidentiary hearing be held?
What happens at a typical evidentiary hearing?
May I submit evidence at a hearing?
Who testifies at a hearing?
Who may attend a hearing or other proceeding?
What if I want to try and settle a case before the Board issues a decision?
What kind of help can I get from the DAB to resolve a dispute outside of the adversarial appeal process?
In what circumstances may an appeal that has been accepted by the Board be dismissed or remanded without a decision being issued?
What can I do if I think a decision issued by the Board is wrong and should be reconsidered?
How can I get a court to review a Board decision that I think is wrong?
How are arrangements made for the preparation of the certified administrative record when a Board decision is appealed to court?
How can I find Board decisions?
What other research aids are available to me?
This manual is meant to offer practical information for the convenience of parties who have appeals before the Departmental Appeals Board (Board), attorneys who represent such parties, and others who have an interest in how the appeal process works. For purposes of this manual, “Board” refers to the members of the Departmental Appeals Board who are appointed by the Secretary and who receive staff support from the Appellate Division of the larger organization also known as the Departmental Appeals Board (DAB).
You should be aware that: (1) this manual does not override anything in regulations or statutes that govern cases before the Board; and (2) the Board has also prepared guidelines that deal with some specific kinds of cases. Much of the information in this manual is applicable only to appeals brought under the Board’s general governing regulations, which can be found at 45 C.F.R. Part 16, but other information may be useful to persons interested in other kinds of cases heard by the Board. We have also pointed out some of the different procedures that may apply in categories of cases that frequently arise, but this manual is not intended as a comprehensive discussion of the procedures for all categories of cases over which the Board has jurisdiction. For more complete and current information on procedures for a specific kind of case, please review the governing statute and regulations and any applicable Appellate Division Guidelines, and contact the Appellate Division at 202-565-0200 with any remaining questions. The information provided here is for general guidance only. Ultimately, parties and their attorneys are responsible for making their own determinations about how best to proceed.
While the Board reviews disputes under a wide range of programs in almost all operating components of the Department of Health and Human Services (HHS), we do not offer a general right of appeal to any aggrieved party in a dispute with HHS. Also, in some cases, parties have a right to a hearing before an Administrative Law Judge (ALJ) supported by the Civil Remedies Division of the DAB, and then an appeal from the ALJ decision to the Board. Certain decisions by ALJs outside of the DAB, at the Food and Drug Administration and the Department of the Interior Office of Hearings and Appeals, are also appealable to the Board.
An adverse determination made by an HHS component or an ALJ decision should inform you of any applicable appeal rights, but it is possible that this information may be omitted. Many types of disputes which the Board may review are described in Appendix A of 45 C.F.R. Part 16. However, the list in Appendix A may not be up-to-date and does not cover cases that are governed by procedures other than the Part 16 appeal procedures or that are reviewed by the Board pursuant to a delegation of authority or intra-agency agreement. We also maintain a list of regulations that provide for appeals to the Board but modify or replace the Part 16 procedures at http://www.hhs.gov/dab/divisions/appellate/regulations/regulations.html. (Modifications may include a different time period in which to file your appeal, different requirements for the contents of the appeal, changes to the scope of the Board’s review, and others.) In addition, guidelines that provide procedures for specific kinds of cases are listed at http://www.hhs.gov/dab/divisions/appellate/guidelines/index.html. A chart showing broad categories of cases over which the Board has jurisdiction, organized by HHS operating component, can be accessed at http://www.hhs.gov/dab/divisions/appellate/index.html (see link on right-hand side of page).
To obtain current information about whether there are regulations or other authorities providing for Board review of a particular type of dispute, you may call the Appellate Division at 202-565-0200. In some instances, the Appellate Division may be unable to provide definitive guidance regarding whether a matter falls within the Board’s jurisdiction. In that case, you may wish to file an appeal so that the Board can rule on any jurisdictional issue. (The Board will not issue an advisory opinion in the absence of an actual appeal.) You may be precluded from seeking court review if you do not exhaust a right to an administrative appeal. See “What are the prerequisites for Board review under 45C.F.R. Part 16?” for information about the provisions in 45 C.F.R. Part 16 for resolving a jurisdictional issue.
Generally, an appeal before the Board has two parties -- the component of the Department of Health and Human Services that made the decision being appealed (called the respondent in Part 16 cases) and the person or entity that is appealing the decision (called the appellant in Part 16 cases). Examples of federal parties that often appear before the Board include the Administration for Children and Families, the Centers for Medicare & Medicaid Services and the HHS Office of the Inspector General. Examples of the kinds of non-federal parties that often appear before the Board include states, nursing homes, health care providers, Indian tribes, Head Start grantees, and grantees of various other programs that receive funding through HHS. A party is not required to be represented by an attorney; however, the Board encourages such representation in cases involving legal issues and complex facts.
The Board’s regulations provide that the Board may allow a third person who shows that it is a real party in interest to present the case on appeal for the appellant or to appear with a party in the case, after consultation with the parties and if the appellant does not object. The Board may also allow other individuals or entities with a clearly identifiable and substantial interest in the case to participate as intervenors if their participation would sharpen issues or otherwise be helpful in resolution of the dispute and would not result in substantial delay. 45 C.F.R. § 16.16. The Board has ruled that an interest in an appeal may be identifiable even if the potential impact on the putative intervenor is not immediate and unavoidable. An intervenor is generally permitted to file briefs on the same schedule as the appellant and is required to consult with the appellant before making any documentary submissions in order to avoid duplicative submissions. The Board determines the extent, if any, of an intervenor’s participation in oral proceedings after consulting with the parties. A person seeking to participate as a real party in interest or intervenor should file a request for such status as soon as possible.
Four conditions must generally be met before the Board may review a dispute under 45 C.F.R. Part 16:
- First, we must be authorized to review the disputed matter. See “How can I find out if the Board has jurisdiction to review my appeal and if so, what procedures apply?”. If an appeal has been filed and we question whether we are authorized to review the particular dispute under 45 C.F.R. Part 16, we ask for the written opinion of the HHS component involved. Unless we find that opinion to be clearly erroneous, we are bound by it. See Part 16, Appendix A, Paragraph G. We can also review disputes that are not otherwise subject to our review upon the agreement of the parties (both the appellant and the respondent must agree).
- Second, the appellant must have finished any preliminary review process. For example, both the National Institutes of Health and the Centers for Disease Control and Prevention have an appeals procedure set out at 42 C.F.R. Part 50, subpart D, for certain disputes. However, if the appellant and the respondent agree, the Board may review an adverse determination in the absence of any available preliminary review.
- Third, there must be a "final decision." The appellant must have received a written decision from the Department of Health and Human Services component. This constitutes the determination which frames the dispute, and is a brief, but comprehensive, description of the federal determination and its bases. See 45 C.F.R. § 74.90 (formerly § 74.304) for a description of a proper "final decision." (Where there has been a preliminary review -- see the second rule above -- the final decision usually will be the written result of that review.) The "final decision" should be easy to identify, as it should contain an ending paragraph specifying the right of appeal to the Board and the applicable deadline for appealing (30 days in most types of cases). When this language is absent, this may indicate that the decision is not final and may trigger a Board inquiry to determine whether the appeal is premature. However, if the appellant is in doubt about whether it has received the final decision, the appellant should protect itself by filing a notice of appeal.
- Fourth, the appeal must be filed within the applicable appeal period. Section 16.3(b) of the Board’s regulations at 45 C.F.R. Part 16 states that the appellant must appeal the final written decision “within 30 days after receiving it.” However, the program regulations or statute may specify a different time period for appeal. See, e.g., 42 U.S.C. § 1316(e)(2)(A) (Social Security Act § 1116(e)(2)(A)) (appeals of Medicaid disallowances); 45 C.F.R. § 262.7(b)(1) (appeals of Temporary Assistance for Needy Families penalties); and 45 C.F.R. § 1355.39(b) (appeals of withholdings of title IV-B/IV-E funds). If the final decision you received does not make the appeal period clear, be sure to check by looking at the applicable regulations and/or statute. The 30-day period specified in section 16.3(b) runs from the date the appellant receives the final decision, not from the date the decision was mailed or dated. (The date of receipt means receipt by the appellant or any of its agents, so that any time thereafter in which the decision is circulating within appellant's offices or referred to its attorneys counts against the 30-day or other applicable appeal period.)
- The clock stops running on the date the notice of appeal is filed with the Board. See “How do I file submissions with the Board?” for information on how the date of filing is established.
- We generally apply the 30-day requirement in section 16.3(b) strictly. Administrative mistakes or inefficiency will not be accepted as good reason for waiver of the 30-day requirement. While we do not treat this requirement as absolutely proscriptive or "jurisdictional," only very rarely (and usually in cases involving short periods) has the Board exercised its authority under section 16.13 to accept an appeal that is filed late. On the other hand, the Board has rejected many appeals for late filing.
The notice of appeal is a written submission to the Board by the party seeking an appeal of a final decision and initiates the appeal process under Part 16. (See “What are the prerequisites for Board review under 45 C.F.R. Part 16?” for an explanation of what constitutes a "final decision.") Every notice of appeal should include a statement of the amount in dispute, a brief statement of why the decision is wrong, and a copy of the disallowance letter or other final decision. We will not proceed without a copy of the final decision. Please remember that the Board is independent of whichever component of the Department of Health and Human Services (HHS) made the final decision that is being appealed. That fact has several consequences for the notice of appeal: (1) we do not know what the disallowance or other final decision was about unless you send it to us, (2) staff at the HHS component will not necessarily forward the notice of appeal to us if you mistakenly send it to them directly, and (3) any other communications you may have with staff at the HHS component will not necessarily result in information reaching us. Therefore, be sure to send the notice of appeal directly to the Appellate Division. Please check the DAB website at http://www.hhs.gov/dab/divisions/appellate/index.html to ensure that you are using the most current address or fax number for the Appellate Division. The address shown in 45 C.F.R. § 16.20(a) is NOT accurate. Mailing to that address may cause substantial delays.
After receipt of a complete notice of appeal (see "What is a notice of appeal under 45 C.F.R. Part 16?"), the Board sends an acknowledgment letter addressed to both the appellant and the official of the Department of Health and Human Services (HHS) component that made the final decision, or an attorney for that HHS component, who has been designated to receive copies of all notices of appeal. We enclose a copy of 45 C.F.R. Part 16 for the appellant if the notice of appeal was not filed by an attorney. We enclose for the respondent a copy of the appellant's notice of appeal. We also send copies of the acknowledgment letter (and sometimes a copy of the notice of appeal) to various other HHS personnel who have asked to be notified of appeals.
The Board will send the acknowledgment letter to the person who signed the notice of appeal unless the notice of appeal identifies another person as the appellant’s representative. The appellant may also identify another person as its representative after it receives the acknowledgment letter. The respondent's attorney or other representative should send a notice of appearance to the Board and to the appellant as soon as possible after receiving the acknowledgment letter so that any procedural requests can be dealt with promptly and so that the appellant's brief and appeal file can be sent to the respondent at the right place. If the appellant does not promptly receive a notice of appearance, the appellant may call the Appellate Division at 202-565-0200 to ask for assistance in identifying the respondent’s representative. If the attorney or representative (or contact information) changes during an appeal, the party should promptly notify the Appellate Division in writing of the change.
No matter how often a party has appeared before the Board, the acknowledgment letter should be read carefully as soon as it is received and should not be treated as a mere form letter. It may modify the procedures set forth in the regulations in light of issues raised by a particular appeal or may specifically ask for certain information or documents.
The acknowledgment letter will also state the name, email address, and telephone number of the Appellate Division staff attorney who should be called with any procedural questions or problems.
Generally, each party has an opportunity to file a brief and to submit the documents on which its arguments are based in the form of an appeal file. Normally, 30 days after receiving the Board’s acknowledgment letter, the appellant should submit its brief and appeal file to the Board and to the respondent, organizing the appeal file according to the instructions in section 16.8(a)(1). Then, within 30 days after receiving the appellant's submission, the respondent should normally supplement the appeal file with any additional documents important to its arguments and submit its own response brief. Section 16.8(b). The appellant then has an opportunity to submit a reply brief. Section 16.8(c).
In preparing briefs and appeal files for submission to the Board in an appeal governed by 45 C.F.R. Part 16, there are a number of important things to keep in mind.
The Board may proceed to decision in cases governed by Part 16 at the close of the briefing process described in section 16.8, without further opportunity for developing the record. Consequently, an appeal file should be as complete a documentary record as possible. A party should submit all documents that would assist the Board in making findings on disputed issues, as well as documents that provide necessary background information. Generally, the brief should refer to the documents and explain their relevance. The Board may preclude a party from later submitting relevant documents not submitted during the section 16.8 briefing process where the party cannot show that it reasonably could not have learned earlier of the documents' existence or relevance. Therefore, it is very important to collect and submit all relevant documents in a timely fashion.
Parties are encouraged to enter into stipulations regarding any undisputed material facts where appropriate; this may reduce the number of documents you need to submit. Further, parties should consider cooperating to develop a joint appeal file containing all documents necessary to reach a sound decision.
The Board does not require a party’s brief to adhere to any particular format. It is helpful, however, if each party provides a thorough statement of the facts giving rise to the dispute and develops legal arguments on the issues raised by the facts. A party should also cite to any relevant Board decisions (see “How can I find Board decisions?”) or court cases, as well as governing statutes, regulations and administrative materials. (See “What other research aids are available to me?”). For materials that may not be readily available to the other party and/or the Board, such as the legislative history of a statute, preamble to a regulation, or statements of agency policy, it is helpful to attach a copy. On the other hand, do not send copies of materials that the other party and the Board clearly already have, such as prior submissions or letters from the Board. Please number the pages of your brief for convenient reference. The Appellate Division’s acknowledgment letter will specify any limit on the length of briefs to be filed after receipt of the acknowledgment letter. See “Are there any page limits on submissions filed with the Board?” for more information on page limits. In any event, you should try to present all the points you think are important in as concise a form as possible.
Please tab and index all appeal file submissions, and number the pages of all exhibits or attachments if there is no internal numbering. If you send exhibits or attachments with more than one submission (for example, with both your initial and your reply brief), please identify the exhibits or attachments submitted later with sequential numbers. For example, if the last attachment to the appellant’s initial brief was identified as App. Ex. 6 , the first attachment to the reply brief should be App. Ex. 7.
See “How are submissions filed with the Board?” for other requirements for filing submissions.
With the possible exception of some record materials in local coverage determination cases, national coverage determination cases or Food and Drug Administration cases, all documents submitted as part of an appeal are public records that may be released under the Freedom of Information Act (FOIA) or included in the certified administrative record filed in court if the Board issues a decision that is appealed. See 71 Fed. Reg. 11204 (March 6, 2006) (Privacy Act System Notice). Before submitting documents to the Board, you should redact information which might violate state or other confidentiality or privacy requirements (such as the full names or Social Security numbers of Medicaid recipients or children in foster care). If reference to this information may be needed in order to resolve disputed issues, however, please leave some identifying information intact (such as initials). The Board will return any unredacted documents and require them to be redacted and resubmitted.
Documents in the record for an Administrative Law Judge (ALJ) decision that is appealed to the Board may be unredacted, if permitted by the ALJ. If the Board’s decision is appealed to federal court, the certified administrative record prepared by the Board will contain the unredacted documents. It is the parties’ responsibility to make arrangements to protect confidential or private information in the event of any court appeal. The Department of Health and Human Services Freedom of Information/Privacy Division will redact documents as necessary before releasing them in response to a request under the Freedom of Information Act.
Occasionally, the Board will request supplementary information or briefing from one or both parties, usually in the form of an order to develop the record including questions for the parties. Less commonly, the Board may issue a preliminary analysis inviting the parties’ comments. We try to keep to a minimum these demands on parties' resources, but will use such vehicles when we determine we need further development of the record to produce a better decision. Both parties should view these requests as an opportunity to clarify or buttress their positions, not as an indicator of what the Board’s decision will be. A preliminary analysis is not complete or definitive, and the analysis in the final decision may be different as a result of the further development. On rare occasions, the Board may require parties to submit proposed findings of fact and conclusions of law.
In addition, conferences, oral arguments and evidentiary hearings may be held in appropriate cases. For more information on those proceedings, see later topics including:
- What is a conference?
- When and why would a conference be held?
- What happens at a typical conference?
- What is an oral argument?
- When and why would an oral argument be held?
- What happens at a typical oral argument?
- What is an evidentiary hearing?
- When and why would an evidentiary hearing be held?
- What happens at a typical evidentiary hearing?
In most cases, Board decisions are signed by panels of three Board Members. One of the Board Members is assigned as the Presiding Board Member upon receipt of the appeal. The Presiding Board Member usually decides all procedural matters and directs record development and also conducts any conferences, oral arguments, or evidentiary hearings. Other Board Members may participate as necessary and will have the complete record, including any transcripts, available for their review. (Occasionally, for administrative reasons, the case may be reassigned to another Board Member to preside. The original Presiding Board Member generally remains on the panel for decision.)
In some cases (mostly those heard pursuant to a delegation of authority or intra-agency agreement), a single Board Member is designated as the presiding official and is the only signatory on the decision.
Information on the Board Members is available at http://www.hhs.gov/dab/about/members/judges.html#board.
Ex parte communications with Board Members are not allowed. For an explanation of what ex parte communications are, and how to get information about a case from an Appellate Division staff attorney, see “What if I need to talk to somebody about my case?”.
The procedural regulations for appeals of the suspension for more than 30 days, termination, or denial of refunding of a Head Start grant are at 45 C.F.R. Part 1303. The regulations at 45 C.F.R. Part 16 also apply to such appeals to the extent not inconsistent with Part 1303.
Whenever the Administration for Children and Families (ACF) sends out a notice of termination or denial of refunding to a grantee, the notice must include specific information set out in the regulations. 45 C.F.R. §§ 1303.14(c) and 1303.15(d). The required information includes the factual findings on which the action is based (or references to specific findings or items in another document, such as an on-site review report), citations to any legal provisions (statutes, regulations, or policy issuances) on which ACF is relying, a reference to the requirements governing grantee appeals, and a statement that the failure of ACF to meet the requirements that apply to it may result in dismissal without prejudice or remand to permit ACF to reissue the termination or denial of refunding notice with necessary corrections.
Terminations and denials of refunding must be appealed within 30 days after the grantee received the notice of termination or denial of refunding. If you are requesting an evidentiary hearing instead of seeking review based only on written information and argument, you should say so in your appeal. In addition, your appeal must identify specifically the factual findings by ACF that are disputed and any legal issues raised. In other words, what you file as an appeal constitutes your brief on why you think the decision is wrong, not just an announcement that you want to appeal. (This is different from the initial submission -- a notice of appeal-- in cases governed solely by 45 C.F.R. Part 16.) You should also include any requests for specific documents you wish to obtain from ACF (“discovery requests”), with an explanation of why the documents are relevant and what informal efforts you made to get them directly from ACF.
The appeal (including all supporting documentation) should be sent to the Appellate Division (in an original and two copies). Copies should also be sent to the Commissioner of the Administration on Children, Youth and Families, as well as the responsible official who issued the decision. (Their addresses should be shown in that decision.) In addition, a copy of the appeal should be sent to any delegate agency that would be financially affected.
Sections 1303.14(e) and 1303.15(h) provide that the Board may impose sanctions if a grantee fails to comply with the regulatory requirements for an appeal.
The Board will send an acknowledgment letter to the parties after receiving an appeal. The acknowledgment letter will usually set a schedule for submissions by the parties, provide instructions on discovery and other procedural matters, and set a pre-hearing conference date (unless the grantee has waived an evidentiary hearing). If you have any questions about the procedures in the case, you may call the Appellate Division staff attorney who is identified in the Board’s acknowledgment letter.
Appeals of suspensions of Head Start grants for more than 30 days are conducted under a special expedited process. Such an appeal must be filed within five days of the grantee’s receipt of ACF’s notice of suspension. The appeal must fully set forth the grounds for the appeal and be accompanied by all documentation the grantee believes is relevant and supportive of its position. The Board will promptly convene a telephone conference on receipt of the appeal to set a hearing date. ACF should promptly notify the Board if it institutes termination proceedings or denies refunding during a suspension. The grantee need not file a new appeal of the termination or denial of refunding. Instead, the Board will provide an opportunity for the grantee to respond to the notice of termination or denial of refunding.
The Head Start procedures require that any request for a waiver of a procedural requirement must be in writing and based on good cause. 45 C.F.R. § 1303.8(a). Good cause is limited to the specific circumstances set out in the regulation. Section 1303.8(c) and (d). Section 1303.7 addresses the consequences of a failure to file or serve documents in a timely manner absent a waiver.
The Board has jurisdiction to review appeals from most types of decisions issued by Administrative Law Judges (ALJs) who are supported by the DAB’s Civil Remedies Division. In addition, the Board has jurisdiction to review certain decisions of ALJs, at the Food and Drug Administration and the Department of the Interior’s Office of Hearings and Appeals. The Appellate Division has issued guidelines for appeals of ALJ decisions in certain types of cases to assist the parties in understanding and following the applicable regulatory procedures. The letter transmitting the ALJ decision will generally provide a copy of or cite to the applicable guidelines. You may use the links below to access the guidelines on the DAB website.
Guidelines for appellate review of decisions of ALJs supported by the DAB’s Civil Remedies Division:
- Affecting a Provider’s Participation in the Medicare and Medicaid Programs
- In Cases under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) and Related Statutes
- Affecting a Provider’s or Supplier’s Enrollment in the Medicare Program
- In Cases to which Procedures in 42 C.F.R. Part 1005 Apply
- In Social Security Administration Cases to which Procedures in 20 C.F.R. Part 498 Apply
- Relating to Imposition of Civil Money Penalties Based on Violations of the HIPAA Administrative Simplification Provisions
- Under the Program Fraud Civil Remedies Act of 1986
Guidelines for appellate review of decisions of ALJs at the Food and Drug Administration:
Guidelines for appellate review of decisions of ALJs at the Department of the Interior Office of Hearings and Appeals:
If you have questions about what guidelines apply to your case or the procedures set out in the guidelines, you may call the Appellate Division at 202-565-0200.
An appeal is interlocutory where the Administrative Law Judge (ALJ) has not issued a final decision, ruling, or order that completely disposes of the case. Except as noted below, there are no regulations requiring the Board to entertain interlocutory appeals, and the Board has historically disfavored such appeals. In general, for the Board to consider an interlocutory appeal, a party would have to show that an interlocutory decision would promote efficient adjudication of the dispute and that the party would suffer irreparable harm by waiting for a final decision to appeal an ALJ’s ruling. The Board’s ruling to dismiss an interlocutory appeal is without prejudice to the party’s right to renew its arguments in a timely appeal of the ALJ’s decision, ruling or order dispositive of the case.
The Board is aware of three regulations providing for limited interlocutory appeals. First, the procedures for appeals of ALJ decisions involving civil money penalties and exclusions imposed by the Inspector General of the Department of Health and Human Services (I.G.) expressly state that there is no right to appeal any interlocutory ruling except “on the timeliness of a filing of the hearing request.” 42 C.F.R. § 1005.21(d). This means that if the ALJ rules to reject the I.G.’s motion to dismiss a hearing request as untimely, the I.G. may file an interlocutory appeal of that ruling. Second, the procedures for appeals of ALJ decisions involving civil money penalties imposed by the Food and Drug Administration permit the Board to hear an interlocutory appeal only if the ALJ certifies that immediate review is necessary to prevent exceptional delay, expense, or prejudice to any participant, or substantial harm to the public interest. See 21 C.F.R. § 17.18(b). Similarly, the procedures for appeals of ALJ decisions in cases heard by the Board acting as the Civil Rights Reviewing Authority permit the Board to hear an interlocutory appeal only if the ALJ certifies that an interlocutory appeal is clearly necessary to prevent exceptional delay, expense, or prejudice to any party, or substantial detriment to the public interest. See 45 C.F.R. § 81.86.
An ALJ’s dismissal of a hearing request on the ground that there is no right to a hearing or that the hearing request is untimely or fails to meet the content requirements for a hearing request, if dispositive of the entire case before the ALJ, may be appealed to the Board.
If an extension of time is needed to make a filing other than an appeal, you should ask the other party's representative if he or she has an objection before filing your request with the Board. The other party’s agreement or disagreement does not mean that the Board will automatically grant or deny an extension, however, nor is it sufficient for the parties to agree that more time is needed without having obtained an extension from the Board.
You do not need to contact the other party's representative before seeking an extension of time to file an appeal. Be aware, however, that the Board generally will not grant an extension of the time to file an appeal in cases to which only the procedures in 45 C.F.R. Part 16 apply, since the information required to be included in a notice of appeal under those regulations is minimal.
Your request for an extension must be in writing, should generally be received by the Board before the applicable filing deadline has passed, and must state the specific reason(s) why an extension is needed, and (if applicable) whether or not the other party’s representative has an objection (or that you were unable to contact the other party’s representative).
Be sure to check any procedural regulations other than 45 C.F.R. Part 16 that apply to your case before determining to make an extension request, since in some cases the availability, permissible bases, allowable length of an extension, and the time and manner of filing an extension request may be limited by regulation. See, for example, 42 C.F.R. § 1005.21(a) (regulations for Department of Health and Human Services Office of Inspector General exclusion and civil money penalty cases).
All submissions should be filed with the Board through the Appellate Division. Please check the DAB website at http://www.hhs.gov/dab/divisions/appellate/index.html to ensure that you are using the most current address or fax number for the Appellate Division. The address shown in 45 C.F.R. § 16.20(a) is NOT accurate. Mailing to that address may cause substantial delays. Also, please include both the name and correct mailstop number for the Appellate Division, since delivery to other parts of the DAB may cause confusion and delays. As of the date of publication of this Practice Manual, the Appellate Division fax number is 202-565-0238 and our mailing address is:
Department of Health and Human Services, Departmental Appeals Board, MS6127, Appellate Division, 330 Independence Ave., S.W., Cohen Building, Room G-644, Washington, D.C. 20201.
Any change in the Appellate Division’s mailing address or fax number will be noted at http://www.hhs.gov/dab/divisions/appellate/index.html.
Section 16.20(d) of 45 C.F.R. states, “Unless hand delivered, all materials should be sent to the Board and the other party by certified or registered mail, return receipt requested.” Other methods of delivery have become common since the date this regulation was issued and are permitted by the Board as specified in this section. Please note that deliveries by private couriers or messengers will not be accepted. Also, you should be aware that mail sent through the U.S. Postal Service is subject to security measures before being delivered to the mailroom that handles the DAB’s mail and may take longer to reach us.
Acceptable methods of filing a submission are: by U.S. mail which is postmarked, certified or registered; by a commercial delivery service such as Federal Express; by fax (only if 10 pages or less); or by inter-office mail (available for some local mail within the Department of Health and Human Services). If you fax a submission, you should follow up by sending two copies (where required) by mail.
Submissions are considered filed with the Board on the date they are postmarked, sent certified or registered mail, deposited with a commercial delivery service, or faxed to the Appellate Division fax number. Submissions sent to the Board by other means (such as by inter-office mail) are considered filed on the date they are date-stamped received by the Appellate Division.
Appellants are advised to retain proof of the date of filing since the appellant bears the risk that the notice of appeal or appeal may be rejected as untimely if a question arises about that date.
If the last day of the period for filing a submission falls on a federal nonworkday (a Saturday, Sunday, legal holiday, or a day which by statute or Executive Order is declared to be a nonworkday for federal employees), the submission may be filed on the next federal workday.
Parties must put the Appellate Division docket number assigned to the appeal on all submissions filed after the initial submission. The Board will send an acknowledgment letter that will tell you what the docket number is. You must file an original and two copies of all submissions in Part 16 cases except the notice of appeal (of which only an original need be filed) unless you make other arrangements in advance by calling the Appellate Division. You must also send a copy of all submissions except a Part 16 notice of appeal to the other party at the same time you send the submission to the Appellate Division. In cases other than those governed solely by Part 16, the applicable regulations and/or Board guidelines may require an original and two copies of the initial submission as well as subsequent submissions to be filed with the Board and a copy to be sent to the other party.
Parties are requested to send a copy of any brief to the Appellate Division staff attorney assigned to the case as an e-mail attachment if feasible. However, this is a courtesy copy only and not a substitute for submitting an original (or fax) and two copies to the Board.
Requests for extensions of time in cases governed solely by 45 C.F.R. Part 16 may be made by written submission filed in a manner described above or by e-mail to the Appellate Division staff attorney assigned to the case. If you make an extension request by e-mail, you may wish to call the staff attorney to verify receipt of the e-mail if the filing deadline is imminent.
The Board has established the following page limits for briefs in some, but not all, types of cases: appellant’s brief – no more than 40 pages; respondent’s brief – no more than 40 pages; appellant’s reply brief – no more than 20 pages. Cover letters and attachments are not included in the page count. If typed, the brief should be double-spaced and the font size should be no less than 12.
Any applicable page limits are specified in the Guidelines listed at http://www.hhs.gov/dab/divisions/appellate/guidelines/index.html and/or in the Board’s acknowledgment letter. The parties are expected to adhere to these page limits unless the Board grants a motion to increase the number of pages.
The regulations for appeals of civil money penalties imposed by the Food and Drug Administration set page limits different from those established by the Board for other types of cases. See 21 C.F.R. Part 17 and the Guidelines at http://www.hhs.gov/dab/divisions/appellate/guidelines/fdacases.html .
There are no page limits for a notice of appeal filed pursuant to 45 C.F.R. Part 16. However, this would generally be a relatively short document, since the content requirements are minimal and the regulations provide for the filing of a brief by the appellant after receipt of the Board’s acknowledgment letter.
A party should not communicate with the Board Chair, any other Board Member, or any staff attorney in the Appellate Division about substantive issues in a pending appeal outside of the presence of the other party. Such contacts are called ex parte communications. If such ex parte communications occur, the Board will advise the other party in writing of the nature of the communication and make it part of the record. This prohibition does not apply, however, to discussions concerning administrative or strictly procedural matters such as filing deadlines or methods. 45 C.F.R. § 16.17. In fact, we encourage you to contact the Appellate Division staff attorney in your case by telephone or by e-mail to resolve such matters quickly and informally. Contact information for the staff attorney is provided in the Board’s letter acknowledging receipt of an appeal. In addition, contact information for staff attorneys and other Appellate Division personnel can be found at http://www.hhs.gov/dab/contact/index.html#appellate.
The procedures spelled out in 45 C.F.R. Part 16, which govern appeals of disallowances to the Board, generally require only that the appellant submit evidence and argument concerning "why the respondent's final decision is wrong." Section 16.8(a). In numerous decisions, however, the Board has dealt more specifically with burden of proof questions related to appeals of disallowances and other types of appeals. You can and should research those decisions to determine how the burden of proof will be allocated in the appeal of interest to you. (See “How can I find Board decisions?”.) What is offered here is a general discussion of the topic in relation to a typical disallowance appeal, but even in that context, it is subject to qualification based on the facts of a given case and does not address many technical distinctions that may be important to a specific issue. The standard of proof generally applied in Part 16 cases and other types of cases where the Board’s review is de novo is preponderance of the evidence, which is the traditional standard for administrative proceedings.
In disallowance cases, the respondent (that is, the federal agency) has the burden to articulate clearly the basis of the disallowance and to include in the disallowance letter enough detail to enable the appellant to understand the issues and the respondent’s position. See 45 C.F.R. § 74.90(c). As indicated in Board decisions, the respondent may raise new grounds for a disallowance after a disallowance letter is issued as long as the appellant is afforded an opportunity to respond. See, e.g., Texas Health and Human Services Commission, DAB No. 2187 (2008).
The respondent may sometimes be required to provide specific extra information. For example, where the appellant raises a question about the calculation of a disallowance in its notice of appeal or in a subsequent submission, the respondent has an obligation to provide information showing how it calculated the disallowance, particularly where the amount is not identifiable on the appellant's records as a discrete category of costs. Where the appellant raises a question about the calculation of a disallowance that was based on extrapolation from a sample measurement, the respondent must describe the statistical methodology used and be prepared to substantiate the validity of the methodology upon further inquiry.
A similar analysis may be applied with respect to other determinations by a federal agency that affect an appellant, that is, the appellant must have sufficient notice of the basis of the action taken in order to be fairly expected to respond.
Each party in an appeal has a burden of going forward with evidence and argument in response to that presented by the other party. A party with knowledge of facts pertinent to the Board’s decision-making, and peculiarly within that party's knowledge or control, has a burden of supplying the Board and the other party with that information.
Every appellant that appeals a disallowance has the burden of identifying, documenting, and justifying its claimed costs and hence establishing its defense to the respondent's disallowance. Thus, in the kind of cases that come before the Board under 45 C.F.R. Part 16, the appellant always bears a general burden of proof.
The respondent also has certain responsibilities under the applicable regulations. For example, the respondent must give adequate notice of the basis for the decision. See 45 C.F.R. § 74.90(c). A respondent also has a duty to supplement the appeal file with “any additional documents supporting the respondent’s position.” 45 C.F.R. § 16.8(b)(1).
Moreover, the Board may, among other things, order a party to show cause why a proposed finding or decision of the Board should not become final. See 45 C.F.R. § 16.9.
The distribution of the burden of proof in some other categories of cases has been addressed in Board decisions. The following decisions may provide useful beginning points for research:
- for cases involving the Clinical Laboratories Improvement Amendments of 1988 -- Edison Medical Laboratories, Inc., DAB No. 1713 (1999), aff’d, Edison Medical Lab. v. Thompson, 250 F.3d 735 (3rd Cir. 2001);
- for cases involving rehabilitation center compliance with Medicare participation requirements -- Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Ctr. v. U.S. Dep't of Health & Human Servs., Civ. No. 98-3789 (D.N.J. May 13,1999);
- for cases involving nursing home compliance with Medicare participation requirements -- Batavia Nursing and Convalescent Center, DAB No. 1904 (2004), aff’d, Batavia Nursing & Convalescent Ctr. v. Thompson, 129 F. App’x 181 (6th Cir. 2005); and
- for Head Start terminations - Rural Day Care Association of Northeastern North Carolina, DAB No. 1489 (1994), aff'd, Rural Day Care Ass'n of Northeastern N.C. v. Shalala, Civ. No. 2:94-CV-40-BO (E.D.N.C. Dec. 20, 1995).
In disputes governed by 45 C.F.R. Part 16 that involve $25,000 or less, expedited procedures apply, unless the Board Chair determines that exceptional circumstances require additional procedures. Additional procedures are generally required if the appellant intends to submit (or submits with its notice of appeal) documentation that the respondent has not yet reviewed.
The expedited procedures are set out in section 16.12. Instead of filing sequentially as provided in section 16.8, both parties simultaneously submit their respective arguments and background documents (briefs and appeal files) within 30 days of receiving the Board’s acknowledgment letter. The parties then have an opportunity to respond to each other's submission orally. These expedited procedures can also be used in cases involving amounts over $25,000 if both parties agree and the Board finds it appropriate.
Section 16.12(d) sets out special expedited procedures for a subset of disputes involving $25,000 or less in which there has been a preliminary review meeting certain standards. A special burden of proof provision generally restricts the Board's review in such cases to whether the decision of the preliminary review authority is clearly erroneous. See section 16.12(d)(2). The federal agency should be prepared to provide a copy of the record for the preliminary review proceeding to both the Board and the appellant (or, if the appellant already has all the documents in the record, to provide only an index to the appellant).
We do not have procedures that specifically provide for formal discovery. This reflects the intention that processes before the Board be relatively informal and based on cooperation between the parties, as much as possible, with the Board facilitating. However, parties in cases in which the Board conducts a de novo review (such as cases under 45 C.F.R. Part 16) do sometimes need additional information to fairly present their cases. The parties are expected to cooperate in sharing information. Parties should not anticipate the availability of the routine or general discovery they may be used to in court and should attempt to obtain needed information by taking the steps outlined below before filing a discovery motion.
An appellant should first search its own files for any relevant documents. Searching its own files should also enable the appellant to identify any missing documents with greater specificity, so that a production request can be sufficiently narrow. (Appellants will find it helpful if they have kept accurate and complete records and if staff have been directly involved from the beginning of any federal audit in gathering relevant documentation. It is also important to retain copies of federal guidance documents, even when they are superseded by later issuances. Costs claimed in earlier time periods are still subject to disallowance based on the earlier guidance in effect at the time they were incurred.)
You should request any information you need from the other party directly as soon as you identify a need for such information. Once the appeal is pending, the appellant can often obtain information from the federal agency simply by calling the attorney or other representative of the federal agency. If the appellant does not receive a notice of appearance from the federal agency’s representative promptly following receipt of the Board’s acknowledgment letter, the appellant may call the Appellate Division staff attorney identified in the acknowledgment letter for assistance in identifying the representative. If the appellant identifies a need for information prior to filing the notice of appeal, the appellant may specify such information in the notice of appeal.
If the other party does not voluntarily produce the information requested, the Board has the power to order a party to submit relevant information. The Board also has the general power to take steps it determines appropriate to develop a sound decision. 45 C.F.R. §§ 16.13, 16.9. In determining whether to exercise this power, the Board may use the Federal Rules of Civil Procedure, Federal Rules of Evidence, or case law as guides, but this does not mean that the Board considers itself bound to follow them for resolving discovery questions, nor that the same standards necessarily apply. The Board will intervene, if necessary, only to order production of specific items of information which the Board determines a party needs to directly address a specific, dispositive issue in a case. See also “What information can an appellant expect to obtain?” and “Who has the burden of proof in a case before the Board?”.
Any request that the Board order the other party to produce information should be made promptly after the other party declines to produce it voluntarily. Your request should make clear what efforts were made to seek voluntary production from the other party, describe specifically what information you need, and state how this information is relevant and necessary to your case. The Board may schedule a telephone conference to discuss the request. Often, the Board can facilitate the parties agreeing to some production, either by narrowing the request or clarifying issues. If necessary, the Board will hear argument on the request and may set additional procedures before ruling on the request. If the respondent claims that documents sought by the appellant are privileged, the Board will request that the respondent identify the documents in question, explain the basis for the claim of privilege, and (where applicable) state whether there is any segregable factual material in the documents which could be disclosed without violating the claimed privilege. Where it deems necessary, the Board will order the respondent to produce the documents as to which the claim is asserted for the Board’s in camera inspection.
An appellant has a right to seek information from the Department of Health and Human Services under FOIA that is unaffected by the existence or use of Board processes. FOIA and Board processes sometimes intersect, as when an appellant has a pending FOIA request that the appellant anticipates will produce information on which it may rely in the Board proceedings. To avoid delay and misunderstanding about the rights and obligations of the parties under the two separate processes, appellants are urged to ask the Board to convene a telephone conference when a FOIA request related to the case is involved. Generally, the Board will not delay proceedings in an appeal pending an appellant’s receipt of a response to its FOIA request.
An appellant that wishes to obtain a copy of, or view in person, specific Board case files in pending or closed cases must first file a FOIA request. See http://www.hhs.gov/foia/ for instructions on filing a request. To expedite the processing of your request, you may send a copy to the Appellate Division. See “How do I file submissions with the Board” for the Board’s mailing address and fax number.
The Board has stated in numerous decisions that an appellant has a right to obtain from the respondent sufficient detail concerning the basis for the disallowance to enable the appellant to prepare its case. This may include, for example, audit workpapers and correspondence related to an audit, where details underlying audit calculations are found there and not in the disallowance decision; a listing of program recipients found by federal auditors to have been ineligible; or, in cases involving statistical sampling, a description by the federal agency respondent of the methodology used in calculating a disallowance. See “Who has the burden of proof in a case before the Board?”. On the other hand, the Board generally would be unlikely to direct discovery into the general federal decision-making process underlying a determination, even though the appellant might be able to obtain this type of broader discovery in a court. This is because the Board's role is to provide a prompt, informal and reasonably streamlined review of the specifics of a particular determination. Any document request must be particularized and based on a showing of need. The Board will not order a "fishing expedition." See also “What if I need to get documents and information from the federal agency? Does the Board have discovery procedures?”.
An appellant that wishes to obtain a copy of or view in person specific Board case files in pending or closed cases must first file a FOIA request. See “What is the relationship between Board processes and the Freedom of Information Act (FOIA)?” for information on filing a FOIA request.
The Board discourages interrogatories and depositions unless these are the only means to adequately develop the record on an issue that the Board must decide to resolve the appeal. The Board will take whatever steps are appropriate to ensure the fairness of its decision-making process, but discourages use of discovery devices that tend to delay Board proceedings without contributing in any meaningful way to developing specific and substantive issues the Board must address to produce a sound decision.
Whenever a party seeks to use a discovery device such as interrogatories or depositions, the first step is to seek a voluntary agreement with the other side. If the party cannot obtain such an agreement, it may request that the Board issue an order, but must be able to show relevance and necessity. The Board rarely grants such requests. In denying requests for depositions previously, we have noted that depositions are not generally required in administrative proceedings and that a deposition request would be granted only if the Presiding Board Member determined it was the only way a record could be adequately developed (for example, if a material witness could not appear at a hearing).
The Board’s procedures under 45 C.F.R. Part 16 do not specifically provide for subpoena power. We have indicated in the past, however, that where a party refuses to produce a material witness, the Board may draw an inference, adverse to that party, regarding the expected testimony of that witness. In several cases, appellants have argued that the Board may apply to subpoena a third party under 5 U.S.C. § 304. The Board declined to take that step in those cases because appellants had not demonstrated need. We stated that, even if the authority to seek a subpoena under section 304 is implicit in the Board's authority to decide disputes, an attempt to obtain such a subpoena would be an extraordinary step. If we were to conclude that a subpoena was necessary, we likely would ask the Secretary of Health and Human Services to request a subpoena from the Department of Justice under the terms of section 304.
If a party fails to comply with an order of the Board in a case governed by the procedures in 45 C.F.R. Part 16, that party may be subject to sanctions for failure to meet requirements established by the Board. For example, the Board may preclude further submissions by the noncomplying party or draw an adverse inference from the failure to respond to a Board order to produce relevant information. In an extreme case, the Board may dismiss an appeal with prejudice if an appellant refuses to comply with a Board order. If the respondent fails to comply with a Board order, the Board may issue a decision based on the record submitted to that point or take such other measures as the Board considers appropriate. See section 16.15. However, the Board has no contempt authority, and the nature of its role would make it inappropriate to summarily hold for an appellant based on refusal or failure by the federal agency respondent to comply with an order.
In Head Start appeals, regulations provide for specific sanctions on the parties to those cases for failures to comply with the procedures. See generally 45 C.F.R. §§ 1303.14(c)(6), 1303.14(e), and 1303.15(h).
There is no "right" to an evidentiary hearing or a conference (including an oral argument) in cases governed solely by 45 C.F.R. Part 16. The Board typically consults with the parties in determining whether to hold an evidentiary hearing or a conference and what type of proceeding is best suited to a particular case. The Board may hold an evidentiary hearing or a conference at the request of a party or may schedule one based on its own determination that this is necessary.
Any request for an evidentiary hearing or a conference should be made as early as possible in the appeal process (see “When and why would an oral argument be held?” and “When and why would an evidentiary hearing be held?” for more specific timeframes) and should provide information in support of the request. This supporting information assists the other party to respond to the request and assists the Board in determining what type of oral proceeding, if any, to hold.
Hearing rights may vary in cases other than those governed solely by the procedures in Part 16. For example, in appeals of the termination, denial of refunding, or suspension (of more than 30 days) of a Head Start grant, the grantee has a statutory right to an evidentiary hearing. See 42 U.S.C. § 9841. However, the Board may issue a decision in the nature of summary judgment upholding the termination or other adverse action if the grantee does not identify any genuine dispute of material fact requiring an evidentiary hearing.
A conference, as provided for by 45 C.F.R. § 16.10, is an informal opportunity for the parties to discuss matters relating to an appeal. Conferences are intended to be as informal as possible, consistent with the need to create a sound record. Conferences are typically conducted by telephone; however, they may be conducted in person or by videoconference.
In some cases, conferences are conducted to discuss procedural questions that arise in a case, such as scheduling matters or discovery disputes, or to prepare for further procedures, such as a hearing. Procedural conferences of this nature may be held at any time in the development of a case.
Conferences may be scheduled to clarify the issues or address some substantive questions. For example, the conference format may be an efficient and effective way to enhance the Board's decision-making in situations where the record contains complex financial or audit documents or where there are a large number of participants available to address questions raised by a case record. The participants may include federal and grantee program officials who can discuss matters (such as details on how a particular program is operated) that are not disputed but that the Board must understand if it is to issue a fully-informed decision.
In the case of conferences involving substantive questions or multiple participants, counsel may be asked to provide opening and/or closing arguments to explain the purpose of their presentations.
A conference may be scheduled at the request of a party or because the Board identifies a need. Any request for a conference should be made as early as possible in the appeal process and explain why a conference is needed. Where appropriate, you should provide a list of the persons who might participate in the conference, indicating how each person is involved in the matter.
Appropriate reasons for an informal conference may include, but are not limited to, the following:
- as the first step in the appeals process, to discuss, for example, appropriate procedures, the circumstances giving rise to Board jurisdiction, or the scope of the issues presented;
- at any point in the process, to discuss procedures, motions, or other requests for rulings;
- to discuss, narrow, or clarify the substantive issues;
- to have the parties' representatives and perhaps other participants with relevant information respond to questions from the Board;
- to discuss requests for discovery;
- to discuss a request for an evidentiary hearing or conference;
- to prepare for a scheduled hearing or conference;
- to reach agreement on whether there are disputed material facts; or
- to facilitate the parties' settlement discussions.
The Presiding Board Member and an Appellate Division staff attorney generally conduct conferences together, although depending upon their availability or the nature of the conference either may handle a particular conference alone. Conferences are normally recorded with the consent of the parties. The Board may record the conference itself or may arrange for a court reporter to be present to record the conference. If the conference addresses substantive issues, the Board will usually include a transcript in the record for the case and will provide a copy of the transcript to each party. If the conference is not transcribed, the Board will usually send the parties a written summary of the conference, a statement of the results of the conference, or other indication of its understanding of what happened in or as a result of the conference, giving the parties a brief opportunity to note major errors or omissions. The Board will provide copies of the recording of the conference to the parties if a party makes a prompt request, but the recording will not be included in the record unless a party so requests.
Typically, the Board or the parties will identify in advance the issues or questions to be addressed at a conference. The Board may set an agenda in advance, after consulting the parties, and will generally ask each party in turn to address the issues or questions discussed. The Board will ask the party to whom a question or issue is most logically addressed to proceed first.
The parties are generally expected to have submitted all relevant documents as part of the appeal file. Only rarely would documents be received at a conference. See 45 C.F.R. § 16.10(c)(2).
An oral argument may be considered a specialized kind of conference, but is generally a somewhat more formal opportunity for counsel to provide legal argument on substantive issues in dispute in a case. Oral arguments are typically conducted by telephone; however, they may be conducted in person or by videoconference.
Generally, oral argument may be appropriate where there are no material issues of fact in dispute (or the record on material disputed facts is already substantially contained in the appeal file), but legal issues remain that require clarification or argument beyond the briefs. Most often, oral arguments in cases under 45 C.F.R. Part 16are held after the conclusion of the section 16.8 briefing process. In some instances, the Board may hold an oral argument in lieu of receiving a reply brief. A request for oral argument should be made as early as possible, but at the latest, promptly after the conclusion of this briefing process.
The Presiding Board Member will conduct the proceeding; other Board Members on the panel for decision may attend as their schedules permit. Oral arguments are recorded and transcribed, and become part of the record. The Board provides a copy of the transcript of the oral argument to each party (except in cases to which the procedures in 42 C.F.R. Part 498 apply, where the non-federal party must arrange with the reporting company to obtain a copy and CMS obtains a copy through an intra-agency agreement).
The Presiding Board Member generally opens an oral argument with a brief introductory statement. Typically, the Presiding Board Member will identify the appeal by name and docket number, state the issues in the case, state the purpose of the oral argument, ask the counsel to identify themselves and any other participants in the argument, and take care of any preliminary matters, such as ruling on pending motions. When it schedules the oral argument, the Board will usually advise the parties of the order of presentation and any time limits on their presentations.
An evidentiary hearing is a more formal "trial-like" proceeding that permits the parties to present witnesses and introduce evidence. The DAB has a hearing room with videoconference equipment at its office in Washington, D.C. A hearing is usually conducted, in whole or in part, in person and/or by videoconference. We are also often able to make arrangements to hold hearings in federal facilities in other locations to accommodate the needs of parties and witnesses. If a witness will not be available on the scheduled hearing date(s), the Board may take that witness’s testimony by videoconference or by telephone or provide for reconvening the hearing at a later date.
The Board has held proceedings with elements of both a conference and an evidentiary hearing; part of the proceeding is used for the more formal presentation of witnesses and part is more informal in a discussion format.
An evidentiary hearing is appropriate where there are material facts in dispute and the record requires further factual development through testimony. In addition, a hearing may be appropriate where the nature of the issues or complexity of the case otherwise warrants development in an adversarial hearing format. A party requesting a hearing should: 1) identify the issues or material facts in dispute the resolution of which it believes would be significantly aided by an evidentiary hearing, or explain how the party otherwise expects an evidentiary hearing to enhance the Board's decision-making; and 2) identify the potential witnesses (including their titles, if applicable) and give a brief summary of the nature of their expected testimony. An appellant should make any hearing request not later than the time for filing its reply brief. The Board will give the other party an opportunity to object to the hearing request and will then rule on the request.
When the Board holds an evidentiary hearing in a case, the Presiding Board Member will conduct the proceeding. Other Board Members on the panel for decision may attend as their schedules permit. Hearings are recorded by a court reporter and the resulting transcript becomes part of the case record. The Board provides a copy of the transcript to each party.
The Board usually will hold one or more telephone conference calls in advance of the hearing to discuss preliminary matters and may ask for written submissions, so that the hearing runs as smoothly as possible. Also, the Board encourages stipulations and admissions of fact to narrow issues of fact before the hearing. Typically, the parties will also be required to exchange final information about participants or witnesses and their areas of testimony in advance.
In appropriate cases, the Board may require the parties to present the direct testimony of some or all witnesses in written form prior to the in-person portion of the hearing. See “Who testifies at a hearing?”.
The Presiding Board Member generally opens hearings with a brief introductory statement. Typically the Presiding Board Member will identify the appeal by name and docket number, state the issues in the case, state the purpose of the hearing, ask the counsel to identify themselves and their witnesses or participants, describe any procedures of particular interest, and take care of any preliminary matters, such as ruling on pending motions or evidentiary objections. The Presiding Board Member will also advise the parties and their counsel that although witnesses are not sworn, there are certain statutory penalties that apply to false, fictitious, or fraudulent statements made in a matter pending before a federal agency. (Each witness is given this advice immediately prior to testifying as well.) Parties may be permitted to make opening and/or closing statements at a hearing. A party's opening statement should, at the least, cover what it intends to prove by its presentation. The Presiding Board Member, after consulting with the parties, will decide at the conclusion of the hearing whether to permit the parties to file post-hearing briefing after reviewing the transcript.
In evidentiary hearings in most appeals under 45 C.F.R. Part 16, the appellant's presentation is made first, although the Board may, if appropriate or if the parties prefer, vary the order of the witnesses to proceed issue by issue or based on when the witnesses are available. In some kinds of cases, such as those involving Head Start terminations, the federal agency generally presents its case first.
While the procedures at 45 C.F.R. Part 16 are designed to permit the parties to develop a complete documentary record with the appeal file submissions, this is not always possible. The Board asks the parties to exchange documents they wish to add to the case record as far in advance of the hearing as possible. The Board also asks the other party to stipulate to the admission of documents into the record where there is no objection. When documents are not admitted into the record based on the agreement of the parties, the moving party requests the admission of the documents during the course of the hearing upon their identification by counsel or another participant. The Presiding Board Member then will rule on any objection and admit the additional document(s) where appropriate. Generally, evidence is admitted unless it is clearly irrelevant, immaterial, or unduly repetitious, so the parties should avoid making frequent objections. 45 C.F.R. § 16.11(d). The Presiding Board Member may ask the moving party to explain why documents presented for admission during a hearing (or a conference) were not submitted earlier in the appeal process, and may exclude such documents if there is no good reason for the failure.
The parties should present at a hearing only witnesses who have personal knowledge of the matters as to which they are to testify. The Board expects a party to make its employees available where necessary to the Board's inquiry and to cooperate with the other party to obtain the participation of other relevant witnesses. Prior to the hearing, the Board will rule on any objections made by a party with regard to the presentation of particular witnesses. A party's witnesses should, in general, know the record and be prepared to explain how it supports that party's case, or should have specific factual information to provide. If the witness is purporting to provide an expert opinion, the party presenting that witness should adduce evidence as to how the witness is qualified as an expert. The Presiding Board Member may permit voir dire of the witness by the opposing party before determining whether to accept opinion testimony of the expert and/or ruling on the scope of the testimony to be permitted.
In appropriate cases, the Board will require the direct testimony of some or all witnesses to be submitted in written form in advance of the in-person portion of a hearing. In such cases, the witness must be made available for in-person cross-examination, if requested by the other party. This method frequently saves time and provides for clear and organized presentations. Note that the procedures for appeals of Head Start terminations, denials of refunding, and suspensions of more than 30 days provide that prepared written direct will be used in those cases instead of oral direct, absent a showing of substantial hardship as to particular witnesses. 45 C.F.R. § 1303.16(d).
Ordinarily, Board proceedings are open to all who wish to be present. A party may seek to have witnesses excluded during the hearing. The Board will attempt to obtain agreement of counsel on whether a witness should be excluded or, failing that, will be guided by Rule 615 of the Federal Rules of Evidence. (FRE 615 generally provides for excluding witnesses from hearing the testimony of other witnesses, at the request of either party or on the court's own motion, except for a party or the designated representative of a party or a person whose presence is essential to the presentation of a party's case.)
The Board always encourages the parties to resolve disputes informally or to narrow the issues in dispute even after an appeal has been filed. The Board will assist in this process in any way appropriate and, with the mutual consent of the parties, can make arrangements through the Alternative Dispute Resolution (ADR) Division of the DAB for services such as mediation, early neutral evaluation, and arbitration. (To learn more about these services, see “What kind of help can I get from the DAB to resolve a dispute outside of the adversarial appeal process?”.) Either party to an appeal may request mediation at any time in the proceedings. If an appellant requests mediation in its notice of appeal, the Board will send the parties an acknowledgment letter that provides a brief period for the federal agency to state whether or not it agrees to mediation. If the federal agency agrees, the Board will refer the case to the ADR Division. No action will be taken on the appeal during the mediation process. The parties must advise the Appellate Division promptly when mediation concludes so that the Board may close the case on its docket or set the next procedural steps, as appropriate.
The parties may also choose to negotiate directly without the assistance of a mediator. This may be done informally while the normal briefing schedule continues, or the parties may request a stay of proceedings while the negotiations occur. If the parties believe that the negotiation process might be lengthy, the appellant is encouraged to request that its appeal be dismissed without prejudice. This means that, if the negotiations should prove unsuccessful, the appellant would be permitted to refile timely its appeal before the Board without forfeiting any rights. Before requesting dismissal of an appeal of a disallowance, the appellant may wish to enter into a stipulation with the federal agency that took the disallowance to the effect that the appeal is withdrawn for purposes of negotiations only and that the federal agency will not attempt to recover the disallowed amount while the negotiations proceed. You should be aware that interest may still accrue on disallowed amounts retained by the appellant during the negotiation period. See generally 45 C.F.R. §§ 30.13 and 30.14.
The Alternative Dispute Resolution (ADR) Division of the DAB provides services such as mediation, early neutral evaluation and arbitration in Board cases. You can contact the Chief of the ADR Division at 202-565-0221 for more information about ADR services.
In general, as practiced at the DAB, mediation enhances the parties' own negotiations by use of a third party (typically someone at the DAB) who has special training in the communication skills relevant to the kinds of disputes the Board reviews. The mediator is specifically instructed not to communicate with DAB personnel outside of the ADR Division about the case. Mediation may involve both individual and joint meetings. The objective is not compromise; rather, the objective is to help each side in the dispute understand the other's point of view, with a goal of narrowing what is in dispute or clarifying issues. Often, however, a case is resolved as a result of achieving this goal.
It may be helpful also to understand what DAB mediation does not do:
- It does not bind the parties except to the extent that they agree to be bound, and say so in writing. Thus, it is unlike binding arbitration.
- It does not add anything to the record except any written agreement the parties agree to include. The parties may add to the record, but only to the extent they both agree.
- It does not unduly delay the progress of a case before the Board. Even though the usual steps leading to a Board decision may be suspended, the status during mediation is monitored closely to ensure that the parties are continuing to work toward resolution of the dispute. Of course, the determination of status is done in a manner to preserve the confidentiality of the negotiations and the independence of the mediator. If mediation fails to produce agreement, the case is promptly returned to regular adjudication.
Early neutral evaluation is much like mediation, except that a neutral evaluator is a subject matter expert who will evaluate the parties’ cases and, at the parties’ request, render an advisory opinion. The evaluator (or evaluators) will essentially conduct a mediation session but, unlike a mediator, will give his or her opinion about the strengths and weaknesses of each side’s case and may also render an advisory opinion. The evaluator’s opinions can serve as the basis for further settlement discussions. On occasion, a Board Member who is knowledgeable about the subject matter area may serve as the evaluator. If the case is not settled, the Board Member will be recused from further Board proceedings in that case.
In the case of lengthy settlement discussions, an appeal may be dismissed without prejudice with the agreement of the parties. See “What if I want to try and settle a case before the Board issues a decision?”. Also, an appeal may be dismissed with or without prejudice by agreement of the parties as part of a settlement resolving the dispute.
Also, it has been the Board's experience in cases under 45 C.F.R. Part 16 that an appellant's notice of appeal or appeal file will sometimes include documentation that was not previously considered by the respondent and which may cause the respondent to revise its decision (for example, to withdraw part or all of a disallowance). To give the respondent the opportunity to review the documentation, the Board may stay the proceedings or, if the review might require considerable time, dismiss the appeal without prejudice if the parties consent.
In addition,, the Board may dismiss an appeal with prejudice if an appellant fails to meet any filing or procedural deadlines or to comply with other requirements set by the Board, See sections 16.13 and 16.15(b); see also “What is the sanction for failure to comply with a Board order?”.
Occasionally, the Board may issue a decision resolving some of the issues presented by an appeal and remand the appeal to the respondent to take further action consistent with the decision. For example, the Board might uphold a disallowance in principle but remand the appeal to the respondent to recalculate the disallowance after receiving relevant information from the appellant. A Board decision remanding an appeal to the respondent will provide an opportunity for a further appeal by the appellant limited to the issues on remand should the appellant be dissatisfied with the respondent’s new determination (such as a recalculated disallowance). Also, where an Administrative Law Judge (ALJ) decision is appealed, the Board may in certain circumstances remand the case to the ALJ for further proceedings.
Board regulations state that the Board may reconsider a decision it has issued under 45 C.F.R. Part 16 "where a party promptly alleges a clear error of fact or law." Section 16.13. Parties should view reconsideration as an exceptional process, not merely as another regular step. Historically, reconsideration, where granted, has rarely resulted in substantive modification of a decision.
If a party perceives that the Board has made a clear error in the decision, that party may request reconsideration by addressing a request to the Board in writing. The request should identify the specific error(s) alleged and give all the reasons for the allegation. There is no set procedure for reconsideration. Where the Board determines that no clear error of fact or law material to the decision is alleged, the Board may deny a request for reconsideration without giving the other party an opportunity to respond. Typically, however, the Board may ask the other party to respond to the request and then issue the Board's ruling on the request based on the two submissions. In most types of cases under Part 16, there is no specified time limit for submitting a request for reconsideration, but it is obvious that the sooner a party submits the request, the less likely it is that there will be an issue of untimeliness; a reconsideration request submitted within 30 days after receiving the Board's decision would generally be considered timely. In cases involving Medicaid disallowances, a party has 60 days from the date of the Board’s decision to request reconsideration. See 42 U.S.C. § 1316(e)(2)(B) (Social Security Act § 1116(e)(2)(B)).
Under the procedures at 42 C.F.R. Part 498 (applicable to appeals of certain Administrative Law Judge decisions), the Board may reopen its decision within 60 days of notice of the Board’s decision, upon its own motion or the petition of either party. See section 498.100. The Board has applied the “clear error” standard in 45 C.F.R. § 16.13 to these cases. The Board has also considered requests for reconsideration in other types of cases where there is no express provision for reconsideration or reopening under the general principle that an adjudicator may act to correct an error in a decision.
The letter transmitting the Board decision to the parties will normally cite to any statutory or regulatory provisions that specifically authorize judicial review of Board decisions in the particular type of case involved. It is not appropriate for the Board or the Appellate Division to offer advice or assistance concerning whether, and how, an appellant may seek review of an adverse decision in court. A party should consult its attorney or perform its own research to make that decision.
The Department of Health and Human Services (HHS) attorney who represented the HHS component in the Board proceeding should notify the Appellate Division as soon as possible that a Board decision has been appealed to court so that the Appellate Division can prepare the certified administrative record. If less than 30 days’ notice is provided, HHS should be prepared to seek an extension of the deadline for filing the record in court. In Part 16 cases, the certified record consists only of documents that have been submitted to the Board or otherwise made part of the record by the Board. The parties in such cases are responsible for making, during the proceedings before the Board, the record they want to have reviewed in any subsequent appeal.
The Appellate Division will provide one certified administrative record and two copies of the record. HHS counsel should provide one address to which all three paper records will be mailed. The Appellate Division will send the records by regular U.S. mail, unless HHS counsel provides an account number to which a Federal Express delivery can be charged.
If there are any unredacted documents in the record the disclosure of which might violate state or other privacy or confidentiality requirements, the parties are responsible for seeking a protective order from the court. See “Are the documents I send to the Board kept confidential?” for information on requirements for redacting documents submitted to the Board.
The DAB maintains a database on its website that contains both Board decisions and Civil Remedies ALJ Decisions. Also included with the “Board decisions” are most Board rulings on requests to reconsider or reopen a Board decision as well as recommended decisions in certain types of cases (primarily Social Security Administration civil money penalty cases) that have been adopted by the reviewing official. The database is searchable using a simple Internet search engine technology based on key words, but does not offer any more sophisticated search capabilities, such as field searches. You can initiate a search on the DAB Decisions Search page at http://www.hhs.gov/dab/decisions/index.html. The website also displays links to Board decisions issued during each calendar year starting with the most recent decision.
The Appellate Division maintains information about court decisions that have been issued in appeals of Board decisions and will provide pertinent information upon request; however, we cannot guarantee that it is complete or up-to-date.
Several commercial legal research services also carry Board decisions. These services often are able to offer more sophisticated search and retrieval options. Among the subscriber-only services currently carrying DAB decisions are WESTLAW (in the Federal Health Law database, identifier FHTH-HHS) and LEXIS-NEXIS (in the Health library, file HHSDAB). Board decisions in cases governed by the procedures at 42 C.F.R. Part 498 are reported in the CCH Medicare and Medicaid Guide.
If you have difficulty locating a particular Board decision or have general questions about researching Board decisions, you may contact the Appellate Division for assistance at 202-565-0200.
Where appropriate, the Board’s letter acknowledging receipt of a notice of appeal (or later correspondence to the parties) may identify a prior Board decision that presents similar issues and ask the parties to comment on whether or not the analysis in that decision is applicable to their case.
A large variety of legal issues may arise in cases before the Board, so it is impossible to spell out all the legal research resources that may be useful. Here we have collected some online and library resources that may provide useful information. We cannot ensure that this information is up-to-date, but we hope that it will provide starting points for your research.
General Federal grant information and administrative law resources
A comprehensive, multi-volume treatise covering federal grants law generally that is available in law libraries is Richard B. Cappalli, Federal Grants and Cooperative Agreements: Law, Policy, and Practice, Callaghan and Company, Wilmette, Illinois, 1982 (in binder form, with occasional supplements). Another useful source is Dembling and Mason, Essentials of Grants Law Practice (ALI-ABA, 1991).
A helpful source for researching questions of federal appropriations law is Principles of Federal Appropriations Law, Government Accountability Office, Office of General Counsel, 3d. Ed. (Vol. I (2004), Vol. II (2006) and Vol. III (2008)), available online at http://www.gao.gov/legal/redbook.html. Comptroller General decisions are available for research online at http://www.gao.gov/legal/decisions.html.
The Catalog of Federal Domestic Assistance provides a comprehensive description of available federal grants from the Department of Health and Human Services as well as from all other federal departments. The General Services Administration publishes a searchable catalog at http://www.cfda.gov/. Subscriptions to the catalog can be obtained by contacting the Superintendent of Documents, U.S. Government Printing Office, at 866-512-1800 (toll free) or through GPO’s online bookstore at http://bookstore.gpo.gov.
Appeals before the Board often involve questions of general administrative law. There are several treatises on administrative law in most law libraries, the most authoritative of which may be Kenneth Culp Davis, Administrative Law Treatise, 3d. Ed., Little, Brown (1994) (three volumes).
Since Board cases often involve issues of statutory or regulatory interpretation, a useful source is Sutherland on Statutory Construction, the most recent edition of which is entitled Statutes and Statutory Construction, by Norman J. Singer, 6th Ed., West Group 2000 (7th Ed. available for some volumes).
Materials on federal grants administration, audits, and cost principles
The Department of Health and Human Services Grants Policy Statement (HHS GPS) can be accessed as a PDF document from http://www.hhs.gov/grantsnet. Published in January 1, 2007, the HHS GPS is intended to make available in a single document the general terms and conditions of HHS discretionary grant and cooperative agreement awards, other than awards made by the National Institutes of Health (NIH). The HHS GPS states that these general terms and conditions apply unless there are statutory, regulatory, or award-specific requirements to the contrary (as specified in individual Notices of Award). You should note, however, that awards made prior to the issuance of the HHS GPS would be subject only to terms and conditions of which the grantee had notice. The 1998 NIH Grants Policy Statement and subsequent revisions are available at http://grants.nih.gov/grants/policy/nihgps/index.htm.
HHS regulations at 45 C.F.R. Part 74 contain uniform administrative requirements for HHS grants to institutions of higher education, hospitals, other nonprofit organizations, and commercial organizations. Section 74.27 incorporates by reference the cost principles that apply in determining allowable costs for each kind of recipient. These cost principles include Office of Management and Budget (OMB) Circular A-122 (now codified at 2 C.F.R. Part 230), which is generally applicable to nonprofit organizations, and OMB Circular A-21 (now codified at 2 C.F.R. Part 220), which is applicable to educational institutions.
HHS regulations at 45 C.F.R. Part 92 contain uniform administrative requirements for HHS grants to state, local governments, and Indian tribal governments. Section 92.22 incorporates by reference the cost principles in OMB Circular A-87 (now codified in 2 C.F.R. Part 225) that apply in determining allowable costs.
OMB Circular A-133 provides guidance on Audits of States, Local Governments, and Non-Profit Organizations and is available at http://www.whitehouse.gov/omb/circulars/.
Medicaid and Medicare resources
Many online links for legal research relating to the Medicaid and Medicare programs can be found at http://www.cms.hhs.gov. Centers for Medicare & Medicaid Services manuals relating to these programs are available at http://www.cms.hhs.gov/Manuals/.
Commerce Clearing House (CCH) publishes a variety of products related to Medicare and Medicaid. See subscription information at http://health.cch.com.
Thomson West publishes compilations of statutes, regulations and other materials related to Medicare, Medicaid and other Social Security Act programs. See ordering information at http://west.thomson.com/productdetail/2969/22026425/productdetail.aspx.
Additional materials on specific programs
The website of the Department of Health and Human Services (HHS) component administering the program in which you are interested may have links to useful information. Some of the HHS agency sites which may be of interest are those of the Centers for Medicare and Medicaid Services (CMS), the Administration for Children and Families (ACF), the Office of Inspector General (OIG), the National Institutes of Health (NIH), the Food and Drug Administration (FDA), and the Indian Health Service (IHS).
General legal resources
Many resources exist for general legal research. Commercial legal research resources include WESTLAW and LEXIS-NEXIS. For online legal research, some sites that provide links to federal legal research resources on the Internet are: http://www.gpoaccess.gov; http://www.law.emory.edu/LAW/refdesk/toc.html http://www.findlaw.com, http://www.thecre.com/fedlaw/default.htm, and http://gsulaw.gsu.edu/metaindex.
Last revised: January 26, 2010