Departmental Appeals Board

GUIDELINES FOR APPELLATE REVIEW OF DECISIONS OF ADMINISTRATIVE LAW JUDGES IN CASES TO WHICH PROCEDURES IN 42 C.F.R. PART 1005 APPLY

Introduction
Starting the Review Process
Filing Requirements for All Submissions
Development of the Record on Appeal
Completion of the Review Process

Introduction

Parts 402, 1001, 1003, and 1004 of Title 42 of the Code of Federal Regulations (C.F.R.), and the sections of the Social Security Act cited therein, authorize the HHS Inspector General (I.G.) or the Centers for Medicare and Medicaid Services (CMS) to exclude individuals and entities from participation in Medicare, Medicaid and all other federal health care programs, or to impose civil money penalties and assessments on individuals or entities, based on certain determinations. An individual or entity affected by such a determination is entitled to a hearing by an Administrative Law Judge (ALJ) under the procedures at 42 C.F.R. Part 1005. See 42 C.F.R. §§ 402.19, 1001.2007, 1003.109(b), and 1004.140(b). A dissatisfied party may request review of the ALJ decision by the Departmental Appeals Board (Board) in accordance with the procedures in 42 C.F.R. § 1005.21. These guidelines have been designed to assist the parties in understanding and following the procedures relating to Board review.

If you have any questions about these guidelines, you may call Board attorney Carolyn Reines-Graubard at (202) 565-0116.

Starting the Review Process

(a) Under 42 C.F.R. § 1005.21(a), either party dissatisfied with the ALJ decision may appeal that decision to the Board. The I.G. or CMS may appeal an interlocutory ruling by the ALJ that a hearing request is timely. 42 C.F.R. § 1005.21(d).

(b) An affected individual or entity has a right to be represented before the Board, at the individual's or entity's own expense, by an attorney or someone else. A representative should file with the Board a signed statement that he or she has been authorized to represent the affected individual or entity, unless the same representative appeared in the proceedings before the ALJ.

(c) Your notice of appeal must be filed within 30 days of the date of service of the ALJ decision unless you file a written request for an extension which the Board grants for good cause shown. Your request must be filed within the initial 30-day period and should explain why there is good cause for the requested extension, which may not exceed 30 days. If the ALJ decision is mailed to you, the date of service is deemed to be five days from the date of mailing.

(d) Your notice of appeal must be accompanied by a written brief specifying the findings of fact and conclusions of law with which you disagree, and your basis for contending that each such finding or conclusion is unsupported or incorrect. You should not merely incorporate by reference a brief previously submitted to the ALJ. Instead, the Board expects that the basis for challenging each element of the ALJ decision will be set forth in a separate paragraph or section, and the accompanying arguments concisely stated. In addition, where appropriate, each argument should be supported by precise citations to the record and/or by precise citations to statutes, regulations or other relevant authorities upon which you are relying.

Filing Requirements for All Submissions

(a) A submission is considered "filed" on the postmark date, the date sent by registered or certified mail, the date deposited with a commercial delivery service, or the date a fax is sent.

(b) 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.

(c) All submissions to the Board should be addressed to: Department of Health and Human Services, Departmental Appeals Board, MS 6127, Appellate Division, 330 Independence Ave., S.W., Cohen Building, Room G-644, Washington, D.C. 20201. Faxes should be sent to (202) 565-0238. Do not fax a submission if it is over 10 pages.

(d) Both parties should provide an original and two copies of all submissions to the Board and a copy to the opposing party. (If your submission is faxed, the required two copies should be mailed.) Include in any submission to the Board a statement that you have sent a copy to the opposing party.

(e) The parties should not submit materials already in the record to the Board since those materials will be transferred to the Board by the ALJ.

Development of the Record on Appeal

(a) The notice of appeal is referred to a panel of three Board members, one of whom presides over the development of the record on appeal. The Presiding Board Member is assisted by a staff attorney whom the parties may contact if they have questions about case status or procedures.

(b) The opponent of the party that filed the notice of appeal may submit a response, which may also raise any relevant issue not addressed in the notice of appeal. The response must be filed within 30 days after the opposing party receives a copy of the notice of appeal.

(d) On rare occasions, the Board may grant a request for oral argument if it determines that it would facilitate its decisionmaking. A party wishing to appear before the Board to present oral argument should request such an opportunity in the notice of appeal or the response and should state the purpose of the requested appearance. Generally, any oral proceeding will be conducted by the Presiding Board Member by telephone conference rather than in person.

Completion of the Review Process

(a) The Board may decline to review the case, or may affirm, increase, reduce, reverse or remand any penalty, assessment or exclusion determined by the ALJ.

(b) The Board will complete its review and issue a decision within 60 days after the time for the last submission permitted by the Board has expired.

(c) The standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record. The standard of review on a disputed issue of law is whether the initial decision is erroneous.

(d) The Board will review only those parts of the record before the ALJ which are cited by the parties or which the Board considers necessary to decide the appeal. The Board will not consider issues not raised in the notice of appeal or in the opposing party's response, nor issues which could have been presented to the ALJ but were not.

(e) If a party demonstrates to the satisfaction of the Board that evidence not presented to the ALJ is relevant and material and that there were reasonable grounds for the failure to present it, the Board may remand the case to the ALJ for consideration of such additional evidence.

(f) An affected individual or entity that is dissatisfied with the Board's decision and is entitled to judicial review must commence civil action within 60 days after the Board serves the parties with a copy of the decision. If the decision is mailed, the date of service will be deemed to be five days from the date of mailing.

Last revised: May 23, 2008

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