Departmental Appeals Board

Centers for Medicare and Medicaid Services (CMS) Case Procedures

These are procedures which parties are to follow in conducting cases in the Civil Remedies Division. In some cases, the administrative law judge may add to or modify these procedures; however, unless so amended, the procedures set out here have the same force and effect as if ordered by the judge in a particular case.

The Secretary has adopted procedural regulations which govern most Civil Remedies Division cases. For example, regulations which govern cases in which the Inspector General is a party are found at 42 C.F.R. Part 1005; those which govern cases in which the Centers for Medicare and Medicaid Services is a party are found at 42 C.F.R. Part 498. These Civil Remedies Division procedures set out herein do not supersede the regulations, although the procedures may impose additional requirements.

Civil Remedies Division cases are docketed upon receipt of a request for an administrative law judge hearing accompanied by a copy of the notification of adverse action which gave rise to the request, in a matter over which administrative law judges at the Departmental Appeals Board have jurisdiction. The party requesting the hearing has the right to appear and participate in a hearing in a suitable location as determined by the judge.

An in-person hearing (i.e., a hearing at which witnesses are called and testify) is not the only vehicle for the judge to hear and decide the case. If, after giving the parties the opportunity to present their views, the judge determines that there are no genuine issues of material fact, the judge might decide the case based on the undisputed facts and the applicable law. If there are genuine issues of material fact which can be decided on the basis of documentary evidence, the judge might proceed without an in-person hearing. Also, the judge might hear oral argument or take some testimony by telephone.

Parties may be heard with or without representation. If a party is represented, the representative should file a written notice of appearance. A request for hearing filed by a representative will suffice for a notice of appearance also.

1. Prehearing Conference

At any time before the hearing, the judge may call a prehearing conference. The following matters will usually be discussed, in addition to any matter deemed appropriate by the judge. In general, prehearing conferences are used for the purpose of delineating issues in controversy, identifying the relevant evidence and potential witnesses, and discussing the appropriateness of certain types of proceedings e.g., in-person hearings, motions for summary judgment, or submission of the case for decision on the written record).

2. Written Submissions

   In all cases, even if there is an in-person hearing, the parties will be given the opportunity to submit written materials in the form of briefs, exhibits, correspondence, and copies of correspondence with the other party. Unless it is specified to the contrary elsewhere in these procedures or by the judge in a particular case, all materials submitted, if served on the other party, become part of the record which, along with the transcript of any hearing and other documents generated by the judge and Civil Remedies Division staff, will serve as the basis for the decision or other disposition of the case.

   With rare exception, and then only as noted elsewhere in these procedures or as ordered by the judge in a particular case, a party must submit three copies of written material, or, if appropriate, an original and two copies. The original (or one of the copies if an original is not being submitted) is for the record file; the other two are for the convenience of the judge and the Civil Remedies Division staff attorney working with the judge on the case. Submissions will likely not be filed until the correct number of copies are available; thus, failure by a party initially to send the correct number of copies may hamper or delay the proceedings. Unless the judge grants permission, use of facsimile or computer transmission does not relieve a party of the responsibility of furnishing the required number of copies.

   Also, a party must send a copy to the other party (unless the other party already has the original, as would happen when the parties send us copies of their correspondence with each other) and must note, or certify, that the submitting party has served the other party, in the submission to the judge. A document will not be made part of the record and the judge will not consider it in the decision until the other party has received the document or a copy and has had the opportunity to respond.

   Unless the judge directs otherwise, a party's submission (which has the correct number of copies and has been served on the other party) is filed when a party places it with the U.S. Postal Service (regular mail) or delivers it by other means to the Civil Remedies Division.

3. Preparation of Exhibits

If the parties have documents they wish to present in support of their case, they must prepare them so that they can offer the documents as part of their written submissions or at an in-person hearing. Documents which are intended to prove facts as alleged by a party must be offered as exhibits. Documents which are merely illustrative examples of a matter discussed in a brief or which are being provided as a convenience (such as copies of court decisions) should not be offered as exhibits, but should be made attachments to a brief or other submission.

Exhibits must be legible in all relevant parts and must bear proper markings identifying the exhibits with the case in which they are being offered. Thus, they must be marked with the docket number of the case. Then, each exhibit must be marked with an abbreviated designation for the party offering the exhibit (followed by the abbreviation "Ex." for exhibit). For example, the designation "P" for Petitioner would be used for non-federal parties; "HHS" would be used for the Department of Health and Human Services as party; and "CMS" is always used for the Centers for Medicare and Medicaid Services as party.

These designations are followed by a whole number (one not used previously by the offering party), not a letter, not a mixture of numbers and letters, and not a number with a decimal point. The reason for this is that the court reporters at our in-person hearings most often use tape machines to record, and letters such as "B" and "D", for example, sound alike on tape. Also, parties often forget to sound out decimal points when alluding to exhibits in testimony at in-person hearings.

These identifying markings must be placed on the exhibit itself, not only on a tab or divider. The identifying markings should not obscure any relevant part of the exhibit.

Each page of each exhibit must be numbered so that the page can be located easily when the exhibit is being discussed in a brief, at a hearing, or in the decision. It is preferable to number the pages of each exhibit in a separate sequence for the exhibit.

An example of how these designations might look is:

Docket No. C-97-001
P. Ex. 1
page 1 of 5

Exhibits should be attached so as to be secure, but should stand alone and should not be bound together with other exhibits. The exhibits for the record must be able to be placed upright in a filing cabinet, so parties should not put such exhibits in notebooks.

Proposed exhibits which have not been prepared in the manner indicated above likely will be returned to the offering party. This may cause delay in preparation for the hearing and, perhaps, jeopardize the date of the hearing. In a case which is proceeding without an in-person hearing, it may delay the decision. At the hearing, the judge likely will not accept exhibits into evidence or even allow them to be the subject of testimony until they have been properly prepared.

Parties should not file as exhibits copies of materials which are already in the record, such as the notice of adverse action and the request for hearing. Copies of other court decisions should be filed not as exhibits, but as attachments to the party's brief. Copies of Civil Remedies decisions should be furnished to the other party but omitted from the submission to the administrative law judge.

4. Filing and Exchange of Witness and Exhibit Lists and Copies of Proposed Exhibits and Other Documents

   In a case in which the judge has scheduled an in-person hearing, the judge will order the parties to file (and serve on each other) a variety of documents in preparation for the hearing. These include: lists of proposed exhibits and proposed witnesses; copies of proposed exhibits, including statements in lieu of testimony (hearsay statements which a party intends to offer without calling the declarant as a witness); and prior statements of proposed witnesses, or of persons whose testimony is to be offered in the form of a statement in lieu of testimony, which relate to issues which might be raised at the hearing.

   1. Parties will be required to file and submit three copies (and serve a copy on each other) of their lists of proposed exhibits and witnesses. The witness lists must include the last known address of each witness, sufficient information to identify the relationship of the witness to the case, and a brief summary of the testimony which the party anticipates the witness will provide. Also, the exhibit lists must identify which of the exhibits are statements in lieu of testimony. A party must provide the last known address of a person whose statement is being submitted in lieu of testimony, so that the other party has the opportunity to subpoena that person for the purpose of cross-examination.
   2. The parties will be required to submit two copies (and serve a copy on each other) of their exhibits, including any statements in lieu of testimony. These two copies are for the convenience of the judge and the staff attorney; the record copy is retained by the party to be offered at the hearing. These proposed exhibits must be prepared in accordance with the requirements set forth in part 3 of these procedures.
   3. The parties will be required to submit two copies (and serve a copy on each other) of prior statements of proposed witnesses. These statements do not become part of the record unless the offering party identifies them as proposed exhibits. The two copies are for the convenience of the judge and the staff attorney.

If a party comes to the hearing and attempts to call a witness not listed on that party's witness list or offers an exhibit not listed (and a copy not having been furnished timely to the other party), the judge might not allow the party to elicit the testimony of the witness or to introduce the exhibit. If the other party objects, the offering party must persuade the judge why the testimony should be allowed or exhibit admitted, inasmuch as the party did not comply with prehearing requirements for providing the judge and the other party with the name of the witness or a copy of the proposed exhibits. The judge may require the offering party to demonstrate that there are extraordinary circumstances (such as surprise or rebuttal) which explain the failure to comply with prehearing requirements, and that there is a lack of substantial prejudice to the objecting party. If such a showing cannot be made, the judge likely will not allow the witness to testify or will reject the exhibit.

Statements in lieu of testimony which are relevant, like other hearsay, are admissible in administrative proceedings like these. However, the offering party must persuade the judge of the probative value of such a statement.

Parties must serve on each other and submit prior statements both of witnesses whose testimony will be taken in person and of declarants in statements in lieu of testimony. The judge might not permit the testimony of a witness and might reject a statement in lieu of testimony if the offering party has not timely served and submitted a relevant prior statement.

In a complex case, the judge may order two exchanges of proposed exhibits and lists of exhibits and witnesses. The purpose of this would be to ascertain if there are going to be objections and to give the judge the opportunity to rule on the objections in time to permit the parties to make substitutions for any rejected exhibits or witnesses, in a second exchange. This would save time at the hearing. The judge also might order only the preliminary exchange of a list of exhibits, or allow the parties to achieve the same result by some informal arrangement between the parties. If there are two exchanges and there are no changes from the initial lists, a party need not submit a duplicate list.

If the case is to be decided without an in-person hearing, the judge will give a party the opportunity to object to the admission into evidence of documentary evidence offered as an exhibit or exhibits by the opposing party. The exhibits likely will accompany the party's brief, and the opposition will be incorporated in the other party's response brief. These exhibits must meet the requirements set out in part 3 of these procedures.

5. Summoning of Witnesses

In preparation for the in-person hearing, parties should send their witnesses notices to appear, telling them the location of the hearing and the date. In addition, where it is permitted by the regulations, parties may move for the issuance of a subpoena or other order requiring one or more of their witnesses to appear and testify. The moving party is encouraged to ascertain in advance, and to indicate in the motion, whether or not the other party objects.

6. Stipulations

Parties will make the best use of their time and that of the judge if they can stipulate to certain things prior to the hearing. Those facts not central to the case or which are not in dispute should be stipulated. At the very least, parties should stipulate to the authenticity, non-objectionability, and admissibility of as many exhibits as possible. As a general matter, if a party does not object to the authenticity or admissibility of an exhibit, the judge likely will admit the exhibit without further proceedings or discussion. The time to object is as soon as possible after a party is served with a copy of the proposed exhibit, but usually not later than when the party responds to the submission of which the exhibit was a part, or, if there is to be an in-person hearing, at least seven days prior to the hearing.

7. Use of Rule 1006 Summaries

Using Rule 1006 of the Federal Rules of Evidence as a guideline, and unless permitted by the judge to do otherwise, a party that wants the judge to consider the contents of voluminous records should offer that evidence as an exhibit in the form of a chart or summary. That exhibit, like other proposed exhibits, must be furnished to the judge and staff attorney and served on the other party at the time of the exchange. In addition, the offering party must supply the other party at that time with copies of all supporting documents on which the summaries are based. The judge may order also that the voluminous records be produced at the hearing.

8. Extensions and Other Matters

A party desiring an extension of time, a continuance, or a stay, will be required to contact the other party to ascertain whether that party objects. The moving party then may file an appropriate motion. For the sake of clarity, in Civil Remedies Division cases an extension of time refers to resetting the date on which a submission is due; a continuance refers to resetting the date or time on which an event, such as a hearing or a prehearing conference, is to take place; and a stay (of proceedings) refers to the suspension of all due dates for submissions or events. Although the proceedings are stayed, the judge may direct the parties to report from time to time on the status of the activity which led to the stay.