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Guidelines -- Appellate Review of Decisions of Administrative Law Judges in Cases to Which Procedures in 42 C.F.R. Part 1005 Apply

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Introduction

The Code of Federal Regulations (C.F.R.) Parts 402, 1001, 1003, and 1004 of Title 42, 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 party that is dissatisfied with an ALJ decision may appeal that decision to 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 for appealing an ALJ decision to the Board. If you have any questions about these guidelines, you may call Appellate Division attorney Carolyn Reines-Graubard at (202) 565-0116.

Filing Documents With The Board; Serving Documents

A party may file any document with the Board – including a notice of appeal, a brief, or a request for an extension of time to file an appeal – using either of two methods:

  • by sending the document, by postal or commercial delivery service (or, in limited circumstances, by fax), to the Board at its Washington, D.C. address; or
  • by submitting the document electronically using the Board’s electronic filing system, called "DAB E-File."

For general instructions on how to access and use DAB E-File, please review the Board’s electronic filing instructions.

The rules governing each filing method, as well as the rules for serving a document on a party, are outlined below.

Filing and Service by Postal or Commercial Delivery (or by Fax in Certain Circumstances)

(a) A non-electronic submission is considered "filed" with the Board 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 (where permitted) is sent.

(b) All non-electronic 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. Please do not fax a submission if it is over 10 pages.

(c) When filing a document by non-electronic means, send the original and two copies of the document to the Board and a copy to the opposing party. (If your submission is faxed, the required two copies should be mailed.) Include with any submission to the Board a statement that you have sent a copy to the opposing party.

Electronic Filing and Service Using DAB E-File

(a) Any document, including a notice of appeal, will be deemed to have been filed with the Board on a given day if it is uploaded to DAB E-File on or before 11:59 p.m. eastern time of that day.

(b) If the non-federal party files a notice of appeal electronically via DAB E-File, then both parties should make all future submissions by that method and will be deemed to have consented to accept electronic service of appeal-related documents via DAB E-File, (including documents from the Board).

(c) Even when the non-federal party has elected to file a notice of appeal by postal or commercial delivery service, the I.G. may file its response brief and other appeal-related documents via DAB E-File but should also serve paper copies of its filings upon the non-federal party on or before the applicable filing due dates. In that situation, the Board will issue documents to the non-federal party by postal or commercial delivery service and to the I.G. via DAB E-File.

(d) The I.G. may file a notice of appeal electronically via DAB E-File. If it does so, the I.G. must also send a copy of the notice of appeal to the non-federal party by postal or commercial delivery service. If the non-federal party files its response to the I.G.’s notice of appeal via DAB E-File, then the parties should make all future filings by that method and will be deemed to have consented to electronic service of appeal-related documents (including the Board’s decision) via DAB E-File.

(e) Sending a document to the Board as an e-mail attachment (or in the body of an email) is not a permitted method of electronic filing. Electronic filing in Board cases must be done using DAB E-File.

Additional Rules Applicable to Both Electronic and Non-Electronic Filing

(a) 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.

(b) The parties should not submit to the Board materials already submitted to the ALJ since those materials will be transferred to the Board by the ALJ or will be available to the Board via DAB E-File, as appropriate.

(c) A submission (including the notice of appeal) may not incorporate by reference a brief or parts of a brief previously submitted to the ALJ.

(d) Certain written submissions are subject to page limits, unless the Board grants a motion to increase the number of pages: brief accompanying notice of appeal - no more than 40 pages; response - no more than 40 pages; reply (if permitted) - no more than 20 pages. If typed, the submission should be double-spaced with at least one-inch margins and the font size should be no less than 12. Cover letters and attachments are not included in the page count.

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Starting The Review Process

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

(b) Representation. 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) Filing the appeal. A party that wishes to appeal the ALJ decision must file a notice of appeal with the Board within 30 days of the date of service of the ALJ decision unless that party files a written request for an extension which the Board grants for good cause shown. An extension 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 the parties, i.e., sent via postal or commercial delivery service, then the date of service of the ALJ decision is deemed to be five days from the date of mailing. If a party consented to accept service of documents via DAB E-File during the proceeding before the ALJ, then the date of service of the ALJ decision will be deemed to be the date that the decision is uploaded to DAB E-File.

(d) Contents of notice of appeal. Your notice of appeal must be accompanied by a written brief specifying each finding of fact and conclusion of law with which you disagree, and your basis for contending that each such finding or conclusion is unsupported or incorrect. The Board expects that the basis for each challenge to a finding or conclusion in the ALJ decision will be set forth in a separate paragraph or section, and that the accompanying arguments will be 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.

(e) Docketing and acknowledgment of appeal. After receiving a notice of appeal, the Board will assign a docket number to the appeal and send the parties (by postal or commercial delivery service, or electronically via DAB E-File, as appropriate) a letter that acknowledges receipt of the appeal, describes the remaining steps of the appeal process and how the record on appeal will be developed, and provides information about how to contact the Board with questions about Board procedures or case status.

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Development of the Record on Appeal

(a) After the notice of appeal is docketed, it 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 (by postal or commercial delivery service or electronically via DAB E-File) a copy of the notice of appeal.

(c) The party that filed the notice of appeal may request permission from the Board to file a reply brief.

(d) The Board expects any party needing an extension for filing the response (or any additional submissions permitted or required by the Board) to file a request for an extension before the original due date, to include a statement about whether the opposing party objects to the requested extension, and to state the reasons for the request. The Board will grant an extension only for good cause shown.

(e) On rare occasions, the Board may grant a request for oral argument if the Board determines that oral argument would facilitate its decision-making. 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.

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Completion of the Review Process

(a) 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. 42 C.F.R. § 1005.21(e).

(b) 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 the evidence to the ALJ, the Board may remand the case to the ALJ for consideration of such additional evidence.

(c) The standard of review on a disputed factual issue 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. 42 C.F.R. § 1005.21(h).

(d) 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.

(e) 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.

(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, i.e., sent by postal or commercial delivery service, the date of service will be deemed to be five days from the date of mailing. If the affected individual or entity consented to receiving appeal-related documents via DAB E-File, then the date of service will be deemed to be the date that the decision is uploaded to DAB E-File.

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Last Revised: February 7, 2012