Departmental Appeals Board
Appellate Division -- Practice Manual FAQ
What is this practice manual and who is it for?
This manual is meant to offer practical information for the convenience of parties who have appeals before the Appellate Division of the DAB, attorneys who represent such parties and others who have an interest in how the appeals process works. However, you should be aware that (1) this manual does not override anything in the regulations that govern cases before the DAB and (2) we have also prepared guidelines that deal with specific kinds of cases. Some of the information in this manual is applicable only to appeals brought under our 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 DAB. We have also tried to point out some of the different procedures that may apply in categories of cases that frequently arise, but it is impossible to maintain a comprehensive and current discussion of all varieties of cases over which the DAB Appellate Division has jurisdiction. If you are in doubt about whether specific information is relevant to a particular situation or is up-to-date, it is always best to call and ask rather than rely on the manual alone. The main number for the DAB is 202-565-0200. Ultimately, parties and their attorneys are responsible for making their own determinations about how best to proceed.
You can find a list of most of the regulations that govern appeals over which the Appellate Division of the DAB has jurisdiction by clicking on the Regulations link on the DAB Home Page. (If you have this manual in hard copy, a list should be attached.) You can also find a list of guidelines that provide procedures for specific kinds of cases by clicking on the Guidelines link on the DAB Home Page. (If you have this manual in hard copy, a list should be attached and you can request any of the Guidelines in hard copy.) If you do not find information about the kind of case you are interested in appealing, you may contact the Appellate Division at 202-565-0200 for assistance in determining whether we have jurisdiction over appeals of that kind.
Generally, an appeal before the Appellate Division of the DAB has two parties -- the component of Department of Health and Human Services (HHS) that made the decision being appealed (also called the respondent or the federal party) and the person or entity that is appealing the decision (also called the appellant or the non-federal party). Examples of federal parties that often appear before the Appellate Division of the DAB include the Administration for Children and Families (ACF), the Centers for Medicare and Medicaid Services (CMS), and the Division of Cost Allocation (DCA) (part of the Financial Management Service, Program Support Center). Examples of the kinds of non-federal parties that often appear before the Appellate Division of the DAB include states, nursing homes, health care providers, Indian tribes, Head Start grantees, and grantees of various other programs that receive funding through HHS.
While we review 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 grant dispute. In some cases, parties have a right to a hearing before an Administrative Law Judge (ALJ) in the Civil Remedies Division of the DAB, which has its own practice manual, and then an appeal from the ALJ Decision to the Appellate Division of the DAB. A few kinds of cases are appealable to the DAB from hearings before ALJs outside the Civil Remedies Division of the DAB, such as ALJs at the Food and Drug Administration. If you had a case before an ALJ, you should be able to find out, from the letter transmitting the ALJ decision to you or by contacting the Civil Remedies Division at 202-565-9462, whether you have a right to appeal the decision to the Appellate Division of the DAB.
In cases that do not involve an appeal from an ALJ Decision, four conditions must generally be met before a dispute falls within our jurisdiction:
Many matters which we can review are described in Appendix A of 45 C.F.R. Part 16. Since Appendix A is neither an exhaustive list nor up-to-date, the best approach is to call the Appellate Division of the DAB at 202-565-0200 and ask for current information about whether a particular type of dispute is reviewable by the Appellate Division of the DAB. We also maintain a list of Regulations governing many of the kind of cases that come before the DAB, but that list is not comprehensive either. Also, you should be aware that some regulations provide that Part 16 applies to a category of cases but with specific modifications. Such modifications may include a different time period in which to file your appeal, different requirements for the contents of the notice of appeal, changes to the scope of the hearing available, and others. It is therefore very important to check the applicable regulations.
The notice of appeal is a written submission to the DAB Appellate Division by the party seeking an appeal of a final decision and initiates the appeals process under Part 16. (See When does the Appellate Division of the DAB have jurisdiction over an appeal? 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 DAB Appellate Division is independent of whichever component of the Department of Health and Human Services 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 which 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 DAB Appellate Division. (The address and/or fax number of the Appellate Division of the DAB are at DAB Staff. Please be aware that the address shown in Part 16 itself is NOT accurate. Mailing to that address may cause substantial delays. Also, please be sure you are sending your appeal to the Appellate Division, since addressing it to other parts of the DAB may cause confusion and delays.) Contact us directly at 202-565-0200, if you need additional information.
After receipt of a complete notice of appeal (see What is a notice of appeal under Part 16?), the Appellate Division of the DAB promptly sends an acknowledgment to the appellant and various agency officials or their counsel. We include a copy of 45 C.F.R. Part 16 unless the appellant has appeared before the DAB frequently. We enclose for the respondent a copy of appellant's notice of appeal. The respondent's representative should send a notice of appearance to the Appellate Division and to the appellant as soon as possible so that any procedural requests can be dealt with promptly and so the appellant's brief and appeal file can be sent to the respondent at the right place.
No matter how often a party has appeared before the DAB, the DAB's acknowledgment should be read carefully 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. A party should read the acknowledgment as soon as it is received. The acknowledgment will also state the name, email address, and telephone number of the DAB 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 their arguments are based in the form of an appeal file. Normally, 30 days after receiving the acknowledgment, the appellant should submit its brief and appeal file to the DAB 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). Appellant then has an opportunity to submit a reply brief. Section 16.8(c).
In preparing briefs and appeal files for submission to the Appellate Division of the DAB in an appeal governed by 45 C.F.R. Part 16, there are a number of important things to keep in mind.
The DAB 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 which would assist the DAB in making findings on disputed issues, as well as documents which provide necessary background information. Generally, the brief should refer to the documents and explain their relevance. The DAB may preclude a party from 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 reaching a sound decision.
The DAB does not require a party to adhere to any particular format in submitting its brief. 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 DAB decisions (see How Can I Find DAB 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 easily available to both parties and the DAB, 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 both parties and the DAB already have, such as prior submissions or letters or decisions issued by the DAB. Please remember to number the pages of your brief for convenient reference. The DAB does not have a rule specifying a limitation on the length of briefs filed before it, but 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, if practicable, number the pages of all exhibits or attachments. This step makes it much easier to be sure that everybody involved in a case is referring to material in a consistent way. If you send exhibits or attachments with more than one submission (for example, with an initial and a reply brief), please identify the exhibits or attachments with sequential numbers. In other words, please don't start over with attachment 1 to a reply brief. Instead, if the last attachment to the initial brief was, for example, numbered exhibit 6, the first attachment to the reply brief should be numbered exhibit 6.
Parties must put the docket number of the appeal on all submissions after the notice of appeal. (The DAB will send an acknowledgment that will tell you what the docket number is in cases filed under Part 16.) All submissions after the notice of appeal should be made in an original and two copies to the DAB (unless directed otherwise). Copies of all submissions after the notice of appeal must also be sent simultaneously to the other party. You may (but are not required to) use express mail or registered or certified mail to make a record of the filing date. You may also submit documents of 10 pages or less by fax (see DAB Staff for address and fax number), but you must follow up by sending two copies by mail.
Occasionally, the Appellate Division of the DAB will request supplementary information or briefing from one or both parties, often in the form of questions or a preliminary analysis inviting response. We try to keep to a minimum these demands on parties' resources, but will use these vehicles when we determine we need further development of issues to produce a better decision. Both parties -- not just the party who may appear to benefit from the analysis or the direction of the questions or requests for supplementation of the record -- should view these requests as an opportunity to clarify or buttress their positions. Please keep in mind that we use a preliminary analysis specifically to develop the record in a case, and that the final decision can change as a result of the further development. Thus, do not construe such an analysis as complete or definitive. In some kinds of cases, the DAB may require parties to submit proposed findings of fact and conclusions of law.
In addition, informal conferences, oral arguments and hearings may be held in appropriate cases. For more information on those proceedings, see later topics including:
In most cases, a presiding Board member from among the members of the DAB is assigned upon receipt of the appeal. That Board member usually decides all procedural matters and directs record development and also conducts any conferences, oral arguments, or hearings. Other Board members may participate as necessary and will have the complete record, including any transcripts, available for their review. Decisions are normally signed by panels of three Board members. Background information on the Board members is available online. However, ex parte contacts with Board members are not allowed. For an explanation of what ex parte communications are, and how to get information about a case from a staff attorney, see What if I need to talk to somebody there about my case?
The Head Start appeal procedures at 45 C.F.R. Part 1303 were amended effective March 2, 2000. See 65 Fed. Reg. 4763, February 1, 2000; see also Head Start Act, 42 U.S.C. � 9841. Below we provide some general guidance, first on appeals of terminations and denials of refunding and then on special procedures in appeals of suspensions of more than 30 days. However, we cannot include here every relevant provision in the statute and regulations or guarantee that no changes have been made subsequent to the publication of this manual, so you should make an independent review of applicable provisions and not simply rely on this material.
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 (statute, regulations or policy issuances) on which ACF is relying, provisions governing grantee appeals, and a statement that the failure of ACF to meet these requirements may result in dismissal without prejudice or remand (that is, DAB may dismiss the termination or denial of refunding but ACF may reissue it with necessary corrections).
Terminations and denials of refunding must be appealed within thirty days after the grantee received the notice of termination or denial of refunding. Any grantee that requests a hearing shall be afforded one. 42 U.S.C. � 9841. If you want to have a hearing, you should say so in your appeal. In addition, you must appeal in writing, identify specifically the factual findings by ACF that are disputed and any legal issues raised. You should also include any discovery requests for specific documents from ACF, with an explanation of why they are relevant and what informal efforts you made to get them. In other words, what you file as a notice of appeal constitutes your brief on why you think the decision is wrong, not just an announcement that you want to appeal.
The appeal (including all supporting documentation) should be sent to the Appellate Division of the DAB (see DAB Staff for address) with an original and two copies, and copies should also be sent to the Commissioner of the Administration on Children, Youth and Families (ACYF), as well as the responsible official who issued the decision. In addition, a copy should be sent to any delegate agency that would be financially affected. A grantee may waive an in-person hearing and seek review based on written information and argument. 45 C.F.R. � 1303.14(i). The regulations also spell out who may file an appeal on behalf of a grantee, what obligations a grantee has to notify delegate agencies and who may participate in a hearing. In addition, the regulations provide information on possible sanctions if ACF or the grantee do not follow the requirements mentioned above.
The Appellate Division will send an acknowledgment 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. The usual provisions are discussed below.
The Administration for Children and Families (ACF) is required to make its initial submission within 30 days after ACF received the grantee's appeal. Facilitating this is one reason that grantees are required to send copies of appeals directly to the HHS official who issued the termination or denial of refunding notice and to the Commissioner of ACYF, in addition to submitting the appeal to the DAB Appellate Division. ACF should submit all documents that relate to the findings on which the termination or denial of refunding is based, including any specifically identified documents requested in the grantee's appeal. If ACF withholds any documents, ACF must describe the basis for withholding each such document. ACF's submission should also identify each proposed witness by name and title (if applicable) and state the areas on which the witness may testify.
Within 14 days afster receipt of ACF's submission, the grantee will be required to submit any additional documents in support of its appeal. The submission should also identify each proposed witness by name and title (if applicable) and state the areas on which the witness may testify.
Within 10 days after receipt of grantee's submission of any additional documents, ACF may submit additional documents in support of its findings.
Each party should identify as soon as possible any need for discovery from the opposing party. This means that the grantee should make discovery requests, where possible, as early as its initial appeal. The parties should attempt to resolve any discovery issues informally before seeking a ruling from the Board; however, any motion for discovery should preferably be included in one of the party's submissions described above and must be filed prior to the pre-hearing conference described below. The motion should specifically identify the documents requested and include a statement of their relevance. A party may respond to a request for documents by including the documents in one of its submissions described above rather than by separately producing the documents to the opposing party.
The DAB will generally hold a pre-hearing conference by telephone. The purposes of a prehearing conference generally include: discussing whether the issues for hearing can be simplified or narrowed (for example, because some facts are undisputed or are irrelevant or immaterial); identifying witnesses who will testify as to each issue; setting a date for the parties to submit signed witness affidavits or declarations that will substitute for direct testimony at the in-person hearing; determining whether to permit direct testimony at the in-person hearing of any witness for whom a party claims there would be substantial hardship in using prepared written direct testimony; setting a date by which the parties should identify those witnesses whom each party is requesting be made available for cross-examination at the in-person hearing; discussing order of presentation of witnesses and designation of party representatives to attend the hearing (since other witnesses will be sequestered); hearing argument on any outstanding discovery request; hearing objections to the admissibility of documents that have been submitted (which objections should be limited primarily to objections to authenticity); identifying any legal issues that should be briefed prior to the hearing; and discussing any other matter that may aid in resolving the appeal. You should observe that under the new Head Start regulations prepared written direct will be used in all cases instead of oral direct testimony, absent a showing of substantial hardship as to particular witnesses.
After the pre-hearing conference, the DAB will issue the notice of hearing required by 45 C.F.R. � 1303.16(g). The notice will state the issues for hearing as simplified or narrowed at the pre-hearing conference. A party may not present testimony at the hearing as to an issue not stated in the notice of hearing unless the parties otherwise agree. The DAB will propose a site for the in-person hearing and ask the parties if either objects to that location. The hearing is required to begin no more than 120 days from when the DAB received the grantee's appeal. The final decision must be rendered not more than 60 days after the DAB receives the last authorized submission in the case. 45 C.F.R. � 1303.17(a). These time periods may be extended if: (1) the parties jointly request a stay to try to negotiate a settlement; (2) either party requests summary disposition; or (3) the DAB determines that reasons outside the control of the DAB itself or either party prevent holding the hearing or rendering the decision within those time frames.
Suspensions of Head Start grantees for more than 30 days are conducted under a special expedited process. The DAB will immediately convene a telephone conference on receipt of an appeal of such a suspension to set a hearing date. (See above for details about the required contents of appeals.) In general, the hearing will be held in Washington, D.C. as soon as the grantee is ready. If the hearing is held outside of Washington, D.C. at the request of the grantee, the DAB may need more time to make appropriate logistical arrangements. Alternatively, both parties may agree to conduct the hearing by telephone. After the hearing, the DAB will generally issue a short summary decision (like a bench ruling) as soon as the panel is able to meet and reach agreement, followed by a decision containing a full articulation of the rationale supporting the conclusion announced in its summary decision.
Some important points to be aware of in preparing for an appeal are:
Note: For more complete and current information on procedures governing appeals of specific kinds of cases, please review the statute, governing regulations, any DAB Guidelines and, if necessary, contact the DAB Appellate Division at 202-565-0200 with any remaining questions. The information provided here is for general guidance only.
Generally, an affected party dissatisfied with an initial determination by the Centers for Medicare and Medicaid Services (CMS) under sections 1866(b)(2) and 1866(h) of the Social Security Act may request a hearing before an Administrative Law Judge (ALJ) in the Civil Remedies Division of the DAB. See 42 C.F.R. Part 498. (See Section 498.3, for a list of initial determinations made by CMS that are reviewable under Part 498, and a list of administrative actions that do not constitute reviewable initial determinations.) Either party may appeal the ALJ's decision by filing a written request for review with the DAB Appellate Division within 60 days of receipt of the ALJ's decision. See Section 498.82. The date of receipt is presumed to be 5 days after the date on the notice unless there is a showing that it was, in fact, received earlier or later. 42 C.F.R. � 498.22 (b)(3). The Appellate Division may extend that time for good cause. The request for review must specify the issues, the findings of fact and conclusions of law with which the party disagrees, and the basis for that disagreement.
Generally, the other party may submit a response within 30 days of receipt of the opposing party's appeal. Within 15 days after receipt of the opposing party s response, the appellant may submit a reply brief. In preparing any of these briefs, you should not merely incorporate by reference a brief previously submitted to the ALJ. You should include precise citations to the record before the ALJ where appropriate. That record will be transferred to the DAB Appellate Division. Therefore, do not submit duplicates of materials already in the record.
Generally, the submissions described above are the only record additions on appeal, although the DAB may require other submissions. If you wish to present evidence or oral argument, you should inform the DAB no later than the time for making the last submission described above. See section 498.86. Any request to present evidence should identify the specific issues to which the evidence relates and explain why the evidence was not produced in the proceeding before the ALJ.
Whenever you submit anything to the DAB, provide an original and two copies to the DAB and a copy to the other party. Include in your submission to the DAB a statement that you have sent a copy to the other party.
The panel may dismiss, deny, or grant a request by CMS for review of any ALJ decision or dismissal. The DAB will grant the affected provider's request for review unless it dismisses the request because: (1) the provider requests dismissal; (2) the provider did not file timely (or show good cause for late filing); (3) the provider does not have a right to review; or (4) a final previous determination or decision on the same facts and law and regarding the same question has already been issued. The DAB also may remand the case to the ALJ, with appropriate instructions. Generally, the DAB will complete its review and issue a determination within 30 days after it receives the last submission from the parties.
The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record. The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. In the case of dismissals, the DAB will review whether the ALJ properly exercised discretion in dismissing and whether the legal standard applied was erroneous. The DAB will generally review only those parts of the record before the ALJ which are cited by the parties or which the DAB considers necessary to decide the appeal. The DAB will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.
For information on judicial review, see sections 498.90 and 498.95.
Note: For more complete and current information on procedures governing appeals of specific kinds of cases, please review the statute, the governing regulations, and any relevant DAB Guidelines, and, if necessary, contact the DAB Appellate Division at 202-565-0200 with any remaining questions. The information provided here is for general guidance only.
In certain cases generally involving charges of fraud and abuse, the Department of Health and Human Services acting through the Office of Inspector General (OIG) may impose a penalty and/or assessment. The OIG may also exclude a provider of health care services from participation in various programs. See definitions at 42 C.F.R. � 1005.1. Appeals from these exclusions and civil money penalties (CMPs) are governed by 42 C.F.R. Part 1005. (For information about civil money penalties imposed by the Centers for Medicare and Medicaid Services, which are governed by 42 C.F.R. Part 498, see How are the procedures different in appeals of Civil Remedies ALJ decisions involving nursing home enforcement and provider participation?)
A party against whom a remedy is imposed under 42 C.F.R. Parts 1001, 1003, and 1004 may request a hearing before an Administrative Law Judge (ALJ) of the DAB Civil Remedies Division. The ALJ will issue an initial decision containing findings of fact and conclusions of law (FFCLs). The ALJ decision may be appealed to the DAB Appellate Division by either party within 30 days of its service. See section 1005.21(a). The date of service will be deemed to be 5 days from the date of mailing. See section 1005.20(d). The Appellate Division may extend this 30-filing period for up to 30 days upon a party's request and a showing of good cause, but the extension must be requested within the initial 30-day filing period.
The notice of appeal must be accompanied by a written brief identifying the FFCLs to which the party is taking exception and giving the reasons for those exceptions. See section 1005.21(c). In preparing this brief, you should specify your grounds for review and state your entire argument (do not merely incorporate by reference a brief filed earlier). Each element should be set forth in a separate numbered paragraph or section, and be stated concisely. Each should be supported by page-number citations to the record (when exceptions are based on the record) and by precise citations to any statutes, regulations or other authorities on which you rely. Do not submit duplicates of materials already in the record.
The record is forwarded from the ALJ in the Civil Remedies Division to the Appellate Division. Any party may file an opposing brief within 30 days. The Appellate Division may permit the parties to file reply briefs if requested. Whenever you submit anything to the DAB, please be sure to send an original and two copies to the DAB and a copy to the other party.
There is no right to appear in person. There is no right to appeal an interlocutory ruling by an ALJ to the Appellate Division. See 42 C.F.R. � 1005.21(d). Where the ALJ dismisses a hearing request because the party has failed to file it timely, or has withdrawn or abandoned his or her request for a hearing, no further appeal is permitted, and the exclusion or CMP becomes final. See 55 Fed. Reg. 12,213 (April 2, 1990).
The standard of review on a disputed factual issue is whether the decision is supported by substantial evidence on the whole record and on a disputed legal issue is whether the decision is erroneous. See section 1005.21(h). The Appellate Division will issue its decision within 60 days after the time for submission of briefs and any reply briefs permitted has expired. The Appellate Division will not consider any issue not raised in the parties' briefs or any issue in the briefs that could have been but was not presented to the ALJ. Section 1005.21(e).
For information on judicial review, see section 1005.21(k).
Note: For more complete and current information on procedures governing appeals of specific kinds of cases, please review the governing regulations, any relevant DAB Guidelines and, if necessary, contact the DAB Appellate Division at 202-565-0200 with any remaining questions. The information provided here is for general guidance only.
All documents submitted as part of an appeal are public records. These documents are disclosed to any persons requesting materials in the administrative record and are included in the certified record for any DAB decision appealed to court. See 71 Fed. Reg. 11,204 (Mar. 6, 2006) (notice of DAB's system of records under the Privacy Act). Before submitting documents to the DAB, you may wish to delete information which might violate state or other confidentiality or privacy requirements (such as full names of recipients or patients). If reference to this information may be needed in order to resolve disputed issues, however, please leave some identifying information intact (such as initials or Medicaid numbers).
Only the Appellate Division of the DAB may grant an extension of time to make a required submission in any appeal before it. Therefore, it is not sufficient for the two parties to decide that more time is needed without having obtained permission for the additional time from the DAB.
If an extension of time is needed to make a filing, however, you should first ask the other party's representative if he or she has an objection before contacting the DAB staff attorney. The other party's agreement or disagreement does not mean that an extension will automatically be granted or denied, but ascertaining the other party's position on the request is a necessary first step. If you are unable to contact the other party's representative, be prepared to explain the efforts you made to do so.
An exception to the requirement to contact the other party's representative is where the request is for an extension of the time to file an appeal. In such cases you may not know who the other party's representative is and you do not need to contact him or her before seeking the extension from the DAB. Be aware, however, that the Appellate Division generally will not grant an extension of the time to file an appeal in cases brought under 45 C.F.R. Part 16, since the information required to be included in a notice of appeal under Part 16 is minimal.
Your request should be made before the filing deadline has passed and must state the specific reason why an extension is needed. In filing a written request for an extension, please make sure you send it in enough time so that the request will reach the DAB before the deadline. Also, be sure to check the relevant regulations before determining to make an extension request, since in some cases the availability, permissible bases, and allowable length of an extension may be limited by regulation. See, e.g., 42 C.F.R. § 1005.21(a).
A party should not communicate with a DAB member or staff attorney in the Appellate Division of the DAB to discuss substantive issues of 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 DAB staff member is obligated to disclose the nature of the communication to the other party and make it part of the record. This prohibition does not apply, however, to discussions concerning administrative or strictly procedural matters, such as a request for information on time frames or filing methods. 45 C.F.R. § 16.17. In fact, we encourage you to call the DAB staff attorney in your case to resolve such matters quickly and informally.
The procedures spelled out in 45 C.F.R. Part 16, which govern appeals of disallowances to the Appellate Division of the DAB, 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 DAB has dealt more specifically with burden of proof questions related to 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 DAB 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. Generally, the standard applied in most kinds of cases before the Appellate Division of the DAB is proof by the preponderance of the evidence.
In disallowance cases, the respondent (that is, the federal party) has the burden to articulate clearly the basis of the disallowance, and to include in the disallowance letter enough detail so that the appellant can see what it has to respond to, and the DAB can understand the analysis which must be done. The DAB generally will allow the respondent to cure a defective disallowance letter by later stating better-explained bases for the disallowance. The DAB approaches this as an issue of the adequacy of notice to the grantee. Once the respondent clarifies the bases for the disallowance, the DAB will give the appellant additional opportunity to respond. The respondent may sometimes be required to provide specific extra information, such as in the following circumstances:
A similar analysis may be applied with respect to other determinations by a federal party that affect a grantee, i.e., the grantee must have sufficient notice of the basis of the action taken in order to be fairly expected to respond.
Every grantee 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 DAB under 45 C.F.R. Part 16, the appellant always bears a general burden of proof.
Each party in an appeal has a burden of going forward with evidence and argument in response to that presented by his or her opponent. A party with knowledge of facts pertinent to the DAB's decision-making, and peculiarly within that party's knowledge or control, has a burden of supplying the DAB and the other party with that information.
Once the grantee has presented evidence and argument sufficient to call into question the respondent's determination, the burden shifts to the respondent. At this point, the respondent has the burden to support its determination and to show that it had a reasonable basis. The DAB will not uphold a disallowance based upon incomplete and conclusory explanations any more than it will overturn a disallowance based on incomplete and conclusory arguments by the appellant.
The distribution of the burden of proof in some other categories of cases has been addressed in DAB decisions. The following DAB cases may provide useful beginning points for research (although you should always check for more recent or more directly applicable decisions or regulations): for cases involving the Clinical Laboratories Improvement Amendments of 1988 -- Edison Medical Laboratories, Inc., DAB No. 1713 (1999); for cases involving nursing home enforcement -- Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd Civ. No. 98-3789 (D.N.J. 1999); for Head Start terminations - Rural Day Care Ass'n of N.E. North Carolina, DAB No. 1498 (1994), aff'd Civ. No. 2:94-CV-40-BO (E.D.N.C. 1995).
In disputes governed by 45 C.F.R. Part 16 that involve $25,000 or less, expedited procedures apply unless the Chair of the DAB determines that exceptional circumstances require additional procedures. (These expedited procedures can also be used in cases involving large amounts in dispute if both parties agree and the DAB finds it appropriate.)
The expedited procedures are set out in section 16.12. Generally, the difference is that, instead of filing sequentially, both parties simultaneously submit their respective arguments and background documents (briefs and appeal files) within 30 days of receiving the DAB acknowledgment. The parties will then have an opportunity to respond to each other's submission orally.
Under 45 C.F.R. § 16.12(d), there is also a special burden of proof provision that applies to a subset of disputes involving $25,000 or less in which there has been a preliminary review meeting certain standards. See 45 C.F.R. § 16.12(d)(2). The DAB's review in these cases generally is restricted to whether the decision under review is clearly erroneous. Special expedited procedures apply to these cases.
We do not have procedures that specifically provide for formal discovery. This reflects the intention that processes before the DAB be relatively informal and based on cooperation between the parties, as much as possible, with the DAB facilitating. However, parties do sometimes need additional information to fairly present their cases. The parties are expected to cooperate in sharing information.
Please note that the party seeking discovery should check its own records carefully first. Often, for example, an appellant requests production of documents which it ought to have in its own files. The DAB is not likely to grant a production request in this circumstance unless an appellant has searched its own files first. 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 first request any information you need from the other party directly. The movant should ask the other party as soon as it identifies a need for a document, even if no production schedule has been established in the case. As indicated above, the DAB emphasizes cooperation between the parties. Often, the appellant can obtain information from the federal party simply by calling the respondent's representative, without DAB intervention. In particular, a grantor agency will usually release audit workpapers, and correspondence related to an audit, where details underlying audit calculations are found there and not in the disallowance decision.
If this fails, the DAB has the power to order a party to submit relevant information, as well as the general power to take steps the DAB determines appropriate to develop a sound decision. 45 C.F.R. §§ 16.13, 16.9. In determining whether to exercise this power, the DAB may use the Federal Rules of Civil Procedure, Federal Rules of Evidence or case law as guides, but this does not mean that the DAB considers itself bound to follow them for resolving discovery questions, nor that the same standards necessarily apply. In fact, parties should not anticipate the availability of the routine or general discovery they may be used to in court. The DAB will intervene, if necessary, only to order production of specific items of information which the DAB determines a party needs to directly address a specific, dispositive issue in a case.
When it is necessary to seek a discovery order, you should make the request as early as possible in the process and make clear what efforts were made to seek voluntary production from the other party. Your request must describe specifically what information you need and state how this information is relevant and necessary to your case. The DAB may schedule a telephone conference to discuss the request. Often, the DAB can facilitate the parties agreeing to some production, either by narrowing the request or clarifying issues. If necessary, the DAB will hear argument on the request and may set additional procedures before ruling on the request.
The DAB has made it clear in many cases 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. (See Who has the burden of proof in a case before the Appellate Division of the DAB? and 45 C.F.R. § 74.304.) This may include, for example, 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. If an appellant determines that information of this type is necessary, the appellant should request the information in its notice of appeal whenever possible, so that the DAB can tailor its procedures to accommodate this need. On the other hand, the DAB 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 broader discovery in a court. This is because the DAB's role is to provide a prompt 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 DAB will not order a "fishing expedition."
If you wish to examine specific DAB case files in other pending or closed cases for documents that may have a bearing on your appeal, contact the Appellate Division at 202-565-0200 to arrange it.
The DAB discourages interrogatories and depositions unless these are the only means to adequately develop the record on an issue that the DAB must decide to resolve the appeal. The DAB will take whatever steps are appropriate to ensure the fairness of its decision-making process, but discourages use of discovery devices which tend to delay DAB proceedings without contributing in any meaningful way to developing specific and substantive issues which the DAB 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 an order, but must be able to show relevance and necessity. The DAB grants such requests infrequently. 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 involved in the case 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 DAB'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 DAB may draw an inference, adverse to that party, regarding the expected testimony of that witness. In several cases, appellants have argued that the DAB may apply to subpoena a third party under 5 U.S.C. § 304. The DAB 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 5 U.S.C. § 304 is implicit in the DAB's authority to decide disputes, an attempt to obtain such a subpoena would be an extraordinary step. If we conclude that a subpoena is necessary, we would ask the Secretary of the Department to request a subpoena from the Department of Justice under the terms of 5 U.S.C. § 304.
If a party fails to comply with an order of the DAB Appellate Division in a case governed by the procedures in 45 C.F.R. Part 16, that party may be subject to the sanctions provided by section 16.15 for failure to meet requirements established by the DAB. The DAB 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. The DAB could, however, proceed to decision based on an existing record should the respondent fail to meet deadlines or other requirements. In an extreme case, the DAB may dismiss an appeal if an appellant refuses to comply. Ordinarily, failure to develop the record on a matter material to the DAB's decision-making will have an evidentiary impact, in that the DAB may preclude further submissions by the noncomplying party or draw an adverse inference from the failure to produce.
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).
An appellant has a right to seek information from the Department under FOIA which is unaffected by the existence or use of DAB processes. FOIA and DAB processes sometimes intersect, as when an appellant has a pending FOIA request which the appellant anticipates will produce information to be used in DAB 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 DAB to convene a telephone conference when a FOIA request related to the case is involved.
If you wish to examine specific DAB case files in pending or closed cases, contact the Appellate Division at 202-565-0200 to arrange it.
A conference is an informal opportunity for the parties to discuss matters relating to an appeal. Conferences may be conducted either in person or by telephone, although telephone conferences are most common. Conferences are intended to be as informal as possible, consistent with the need to create a sound record.
In some cases, informal 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.
In cases where there are no material facts in dispute, conferences may be scheduled to clarify the issues or address some substantive questions. For example, the conference format has proved to be an efficient and effective way to enhance the DAB's decision-making both in situations where the record contains complex financial or audit documents or where there are a large number of participants (as many as 20 or 25) available to address questions raised by a case record. The participants may also discuss matters (such as details on how a particular program is operated) which are not disputed but which the DAB 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 DAB identifies a need. If you feel that a conference is needed in a case, you should ask for one as early as possible in the appeals process and explain why you feel that a conference is needed .
Appropriate reasons for an informal conference may include the following:
The presiding Board member and a 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 DAB may record the conference itself or may arrange for a court reporter to be present to record the conference. The tape may be transcribed and become part of the record, or, if requested promptly, copies of the tape may be provided to the parties. If the conference is not transcribed (and the parties are not sent a tape), the DAB will usually send 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. In such cases, the tape may be discarded.
It is important for telephone conference participants to speak loudly, clearly and one at a time, and it is sometimes necessary for them to identify themselves before speaking (particularly in multi-party calls).
Typically, the DAB or the parties will identify in advance the issues or questions to be addressed at a conference. The DAB 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 DAB 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 section 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. The presiding Board member will conduct the proceeding; other panel members may attend as their schedules permit. Oral arguments may be conducted in person or by telephone.
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 16 are held after the conclusion of the section 16.8 briefing process.
Oral arguments are recorded and transcribed, and become part of the record.
The DAB generally opens oral arguments 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.
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 available in its facilities in Washington, D.C. 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. In addition, the DAB has on occasion arranged to take witness testimony by telephone or through video-conferencing.
Also, the DAB 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 with the counsel and the other participants responding to questions from the Board member(s) 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, or where the nature of the issues or complexity of the case otherwise warrants development in an adversarial hearing format.
This section deals with evidentiary hearings before the DAB Appellate Division, not hearings held before Administrative Law Judges in the Civil Remedies Division. When the Appellate Division holds an evidentiary hearing in a case, the presiding Board member will conduct the proceeding. Other Board members who will decide the case may attend as their schedules permit but are not necessarily present. All the Board members on the decision-making panel will have the transcript of the hearing available to review. Hearings are generally recorded by a court reporter and the resulting transcript becomes part of the case record. One copy is usually provided to each party as well.
The DAB 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 DAB 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.
The DAB 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.) The Board member will also remind the parties not to speak simultaneously and to avoid visual replies such as nods.
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. In a complex case, the DAB may permit the parties to make their closing arguments in writing after they have had an opportunity to review a transcript.
In most appeals under 45 C.F.R. Part 16, the appellant's presentation typically proceeds first in an evidentiary hearing, although the DAB can, if appropriate or if the parties prefer, vary the order of the witnesses to proceed issue by issue or based on the witnesses' availability to attend. In some kinds of cases, such as those involving Head Start terminations, the federal party generally presents its case first. The parties may be required to present the direct examination of some or all witnesses in written form prior to the in-person portion of the hearing and then to make the witnesses available for cross-examination in person if requested by the opposing party. This method frequently saves time and provides for clear and organized presentations.
While the objective is to develop a complete documentary record with the appeal file submissions, this is not always possible. The DAB Appellate Division asks the parties to exchange documents they wish to add to an appeal record as far in advance of the hearing as possible. The DAB also asks the opposing party to stipulate to the admission of documents into the record where there is no objection. When documents are not admitted into the record by agreement of the parties, the moving party requests the admission of the documents during the course of the proceeding 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 that frequent objections should be avoid. 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 conference or hearing 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 DAB Appellate Division expects a party to make its employees available where necessary to the DAB's inquiry and to cooperate with the other party to obtain the participation of other relevant witnesses. In the course of preparing for a hearing, the DAB will make rulings on 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.
In appropriate cases, the DAB 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 opposing party. Note that recently-published Head Start regulations 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).
There is no "right" to a hearing or conference in cases governed by 45 C.F.R. Part 16. The DAB typically consults with the parties in determining whether to hold a hearing or conference and what type of proceeding is best suited to a particular case. The DAB may hold a hearing or conference at the request of a party or may schedule one based on its own decision that this is necessary.
A party's initial request for a hearing or conference should be made as early as possible in the appeals process. A party will usually be asked to support its request for a hearing, for example, with information about the material facts in dispute or complex issues raised, and identification of possible witnesses, or an explanation of how the party otherwise expects the proceeding to enhance the DAB's decision-making. This supporting information assists the other party to respond to the hearing or conference request and assists the DAB to determine what type of oral proceeding, if any, to hold.
Hearing rights may vary in cases governed by procedures other than Part 16.
Ordinarily, DAB proceedings are open to all who wish to be present. Occasionally, a party will seek to have witnesses excluded during the hearing or other proceeding. The DAB 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 witness, 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.)
DAB regulations state that the DAB 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. Such reconsideration has not commonly been granted and rarely results in modification of a decision. Parties therefore should view reconsideration as an exceptional process, not merely as another regular step.
If a party perceives that the DAB has, indeed, made a clear error in the decision, that party may request reconsideration by addressing a request to the DAB in writing. The request should focus on the specific alleged error and set forth all of your reasons. There is no set procedure for reconsideration, but the DAB may ask the opposing party to respond to the request and then issue the DAB's ruling on the request based on the two submissions. 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; there should be no problem if the reconsideration request is submitted within 30 days after receiving the DAB's decision.
Once an appeal has been filed, the DAB always encourages the parties to negotiate and to resolve the dispute informally. The DAB will assist in this process in any way appropriate and can provide, with the mutual consent of the parties, services through the Alternative Dispute Resolution Division of the DAB such as mediation, early neutral evaluation, and arbitration. (To learn more about these services and how to access them, see What kind of help can I get from the DAB to resolve a dispute outside of the adversarial appeal process?)
The parties may choose to negotiate informally while the formal briefing schedule continues, or 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 DAB without forfeiting any rights. Before requesting such a dismissal, the appellant may wish to enter into a stipulation with the disallowing agency to the effect that the appeal is withdrawn for purposes of negotiations only and that the disallowing 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.
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 DAB issues a decision?) Also, a case may be dismissed with or without prejudice by the parties' agreement as part of a settlement resolving the dispute.
Also, it has been the DAB's experience that an appellant's submission of an appeal file will sometimes produce documentation which was not previously considered by the respondent agency and which, in the DAB's preliminary analysis, may cause the agency to revise its disallowance decision. In order to give the disallowing agency the opportunity to review the documentation, the DAB may, with the consent of the parties, stay the proceedings or, if the review might require considerable time, dismiss the appeal without prejudice.
The DAB may also, under section 16.15(b), dismiss an appeal with prejudice if an appellant fails to meet any filing deadline or to comply with a submission requirement set by the DAB, or repeatedly engages in conduct that thwarts the DAB's expeditious review of an appeal. Such conduct might include the filing of extraneous motions and repeated requests for extensions.
In the course of an appeal, the DAB might determine that the respondent federal agency has used improper methods to calculate the amount of a disallowance or misapplied departmental regulations or guidelines. In such a case, rather than attempt to apply the correct methods or interpretation itself, the DAB may issue a decision containing guidance to the agency and then remand the disallowance to the agency for further consideration.
In addition to providing parties to a dispute a forum for resolving their differences in adversarial fashion, the DAB encourages the parties to continue to negotiate to resolve the dispute informally or to narrow the issues in dispute. See 45 C.F.R. § 16.18. (For information on how the appeals process may be impacted by efforts at alternative dispute resolution, see What if I want to try and settle a case before the DAB issues a decision?). To assist parties in this effort, the DAB offers a variety of alternative dispute resolution services. A brochure describing the DAB's mediation services is available online. You can contact the Chief of the DAB Alternative Dispute Resolution (ADR) Division at 202-565-0221 for more information about alternative dispute resolution services at the DAB. If an appellant requests mediation in its notice of appeal, the Appellate Division of the DAB will stay the proceedings briefly to ascertain whether the federal agency is willing to participate in mediation and, if so, will refer the case to the ADR Division. Either party to an appeal at the DAB may request mediation at any time in the proceedings, however.
In general, as practiced by the DAB, mediation enhances the parties' own negotiations by use of a third party (typically a DAB staff person) who has special training in the communication skills relevant to the kinds of disputes we have. The mediator is specifically instructed not to communicate with DAB personnel outside of the ADR Division about the case, so that discussions that occur with the mediator will not be part of the record if the case returns to the Appellate Division docket. 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 is not appropriate for the Appellate Division of the DAB to offer advice or assistance concerning whether, and how, an appellant may seek review of an adverse decision in court. Thus, the DAB's response to such inquiries will always be that the party should consult its attorney or perform its own research to make that decision. The Appellate Division of the DAB maintains hard-copy records of court review of its decisions. We cannot, however, assure the user that our records are complete or up-to-date.
The DAB website maintains a database that contains decisions of both the Civil Remedies and Appellate Divisions. The database contains decisions back to the inception of the DAB. However, some decisions that were not readily available in electronic format have not yet been added to the database and we have not always been able to keep the database current. The database is searchable using a simple WAIS search technology based on key word search, but does not offer any more sophisticated search capabilities, such as field searches. You can initiate a search at the DAB Search Page.
Several commercial legal research services also carry the DAB decisions. These services often are able to maintain more complete and up-to-date databases and to offer more sophisticated search and retrieval options. For example, you can often limit searches to Civil Remedies or Appellate decisions only, search a limited range of dates, locate one term within a set of retrieved decisions, etc. Among the subscriber-only services currently carrying DAB decisions are WESTLAW (in the Federal Health Law database, identifier FHTH-HHS); LEXIS-NEXIS (in the Health library, file HHSDAB); and the IHS Medicare-Medicaid library online at www.ihshealth.com or on CD-ROM.
Also, if you have difficulty locating a particular Appellate decision or have general questions about researching Appellate decisions, you can contact the DAB for assistance at 202-565-0200. Parties may ask DAB staff attorneys to check whether previous DAB decisions have addressed a specific issue or for other assistance in researching our decisions. Unfortunately, our staff can help only to the extent that their regular workload permits, and, of course, we cannot be responsible for how adequate or complete the search assistance is. Parties and their counsel remain responsible for presenting their own cases.
At times, the DAB may identify a prior decision that may be dispositive and ask the parties to a case to comment on or distinguish it.
A large variety of legal issues may arise in cases before the Appellate Division of the DAB 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. We cannot assure that this information is current 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, General Accounting Office, Office of General Counsel, 2d. Ed., July 1991. Comptroller General decisions since January 1996 are available for research online at http://www.gao.gov/decisions/decision.htm.
The Catalog of Federal Domestic Assistance, published by the Office of Management and Budget, provides a comprehensive description of available federal grants from HHS as well as from all other federal departments. The work, which is over 1,000 pages long, contains extensive indices to aid the reader and is updated on an irregular basis by OMB. It is commonly available in larger libraries. Subscriptions to the Catalog can be obtained by contacting the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. Online searches of the current catalog are available at http://www.gsa.gov/fdac/.
Appeals before the DAB 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 (1983) (four volumes with supplements).
Since DAB 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 C. Dallas Sands (4th Ed.), Callaghan and Co., Chicago, Illinois, 1972 (with annual pocket parts).
Materials on federal grants administration, audits, and cost principles
Information on the HHS Grants Administration Manual (which is gradually being phased out) and on the newer Grants Policy Directives (which are replacing it) is available online at http://www.hhs.gov/grantsnet. You can also link from there to the text of our regulations at 45 C.F.R. Part 16 and to 45 C.F.R. Part 74, as well as many other helpful resources on grants law and grants administration. Grants administration manuals have also been issued by some of the operating components of HHS. If you have received a grant from such an operating division, you should have been provided information about or a copy of any applicable manual. If you are not a grantee or you are not certain if a manual exists, you may want to contact the relevant operating component directly. Additional material on grants administration that is available online includes the grants documents from the Public Health Service agencies at http://grants.nih.gov/grants/policy/gps/index.html, and the NIH Grants Policy Statement at http://grants.nih.gov/grants/policy/nihgps/index.htm.
Department regulations at 45 C.F.R. Part 74 implement OMB Circular A-110 and govern the administration of HHS grants to private, nonprofit organizations and educational institutions. Section 74.27 incorporates by reference several circulars of the Office of Management and Budget (OMB) which provide cost principles to be used in determining the allowability of costs for different types of activities. These circulars are: OMB Circular A-21 - Cost principles for institutions of higher education; OMB Circular A-122 - Cost principles for non-profit organizations (other than governments, institutions of higher education and hospitals); and OMB Circular A-87 -- Cost principles for state and local governments. Cost principles applicable to hospitals are contained in Appendix E of Part 74.
Common rules for terms and conditions for grants from HHS to state and local governments are codified at 45 C.F.R. Part 92. OMB Circular A-102 contains Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments and provides guidance applicable to federal agencies on matters not covered in the common rule. OMB Circular A-133 provides guidance on Audits of States, Local Governments, and Non-Profit Organizations.
The OMB Circulars are all available online at http://www.whitehouse.gov/OMB/grants/index.html. Many have been revised recently, so you should be certain you review the applicable version of the circular.
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. Many of the Center for Medicare and Medicaid Services (CMS) manuals and directives relating to these programs are available online at http://www.cms.hhs.gov, and others may be obtained in hard copy by contacting CMS directly.
For questions relating to the Medicaid program, Commerce Clearing House (CCH) publishes a Medicare and Medicaid Guide (in looseleaf form with updates) found in many law libraries or see subscription information at http://health.cch.com.
Additional materials on specific programs
Relevant regulations governing Head Start grants are found at 45 C.F.R. § 1301 et seq. and can be accessed online at http://www.acf.hhs.gov.
The Temporary Assistance for Needy Families (TANF) Program was created by the Welfare Reform Law of 1996 which became effective July 1, 1997. Final regulations were published at 64 Fed. Reg. 17,719 ( April 12, 1999), codified at 45 C.F.R. Part 260. Text of the statute, final regulations, and administrative guidance and policy documents can be accessed from http://www.acf.dhhs.gov/programs/ofa/.
Administrative and court decisions, as well as rulings and regulations, involving the Social Security Act programs are contained in West's Social Security Reporting Service, West Publishing Company, St. Paul, Minnesota, 1983. The work contains several bound volumes, with annual pocket parts.
You may also wish to visit the web pages of the component administering the program in which you are interested to see if they offer links to other 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 (www.ihs.gov) (IHS).
General legal resources
Finally, many resources exist for general legal research that go beyond the scope of this FAQ. Commercial legal research resources include WESTLAW; LEXIS-NEXIS; and IHS. For online legal research over the Internet, some starting points you might want to visit are: http://www4.law.cornell.edu/uscode (U.S. Code); http://www4.law.cornell.edu/cfr (Code of Federal Regulations); http://www.access.gpo.gov (Federal Registers); http://thomas.loc.gov (legislative materials); http://www.access.gpo.gov/su_docs/db2.html (government documents and databases); and http://gsulaw.gsu.edu/metaindex, http://www.legal.gsa.gov, http://www.law.emory.edu/LAW/refdesk/toc.html, and http://www.findlaw.com (meta-index sites to locate federal legal research resources on the Web).
Last revised: December 11, 2006