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Guidelines -- Appellate Review of Recommended Decisions of Administrative Law Judges in Pre-Award Disputes under Title V of the Indian Self-Determination and Education Assistance Act

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Introduction
The Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. § 450 et seq., requires that the Secretary of the Department of Health and Human Services provide a hearing on the record when the Secretary rejects an Indian tribe’s final offer regarding the terms of a compact or funding agreement. The Indian Health Service regulations implementing this requirement provide for an appeal of a decision to reject a final offer and certain other pre-award decisions to the Department of the Interior Board of Indian Appeals, which, if it determines that the Indian tribe has a right to a hearing, refers the case to the Department of the Interior Office of Hearings and Appeals for a hearing by an Administrative Law Judge (ALJ).  Either party--the Indian tribe or the Indian Health Service--may appeal an ALJ’s recommended decision to the Secretary, who has delegated the authority to make the final decision to the Departmental Appeals Board (Board). The procedures for an appeal of an ALJ’s recommended decision in pre-award disputes are in sections 137.433 and 137.434 of title 42 of the Code of Federal Regulations (C.F.R.). These guidelines have been designed to assist the parties in understanding and following these procedures.

These guidelines do not pertain to appeals of an ALJ decision involving an immediate reassumption of a self-governance program under 42 C.F.R. §§ 137.443 and 137.444.

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

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Starting the Review Process
(a) Any party may file "precise and specific written objections" to the ALJ's recommended decision within 30 days of receiving the recommended decision. 42 C.F.R. § 137.433.  Objections that are not timely filed are subject to dismissal. If no objections are filed or if objections are dismissed as untimely, the recommended decision becomes final.

(b) An Indian tribe has a right to be represented before the Board, at the tribe’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 tribe, unless the same representative appeared in the proceedings before the ALJ.

(c) Your objections must specify 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.

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Filing Requirements for All Submissions 
(a) A 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) 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. Please 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 to the Board materials already submitted to the ALJ since those materials will be transferred to the Board by the ALJ.

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

(g) Certain written submissions are subject to page limits, unless the Board grants a motion to increase the number of pages: objections - no more than 40 pages; response - no more than 40 pages; reply - no more than 20 pages. If typed, the submission should be double-spaced 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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The Review Process at the Board 
(a) The objections are 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 objections must submit a response.  The response must be filed within 30 days after the opposing party receives a copy of the objections.

(c) The party that filed objections then may submit a reply. The reply must be filed within 15 days after receipt of a copy of the opposing party's submission in (b) above.

(d) If both parties have filed objections, the Board may provide for the parties' responses and replies to be filed simultaneously.

(e) The Board expects any party needing an extension to file the response or the reply (or any additional submissions 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.

(f) Generally, the objections, the response and the reply, if any, are the only record additions on appeal.  If either party wishes to appear before the Board to present evidence or oral argument, that party should request such an opportunity no later than the time for filing its last submission provided for in (b) or (c) above and should state the purpose of the requested appearance.  A party seeking to present testimonial evidence in such a proceeding should address the criteria noted in (g) below.  Generally, any oral proceeding will be conducted by the Presiding Board Member by telephone conference.

(g) While the Board may admit additional evidence into the record (during oral proceedings or through written submission) after notice to the parties, the Board will do so only if it considers the additional evidence to be relevant and material to an issue before it.  In deciding whether to admit evidence, the Board will also consider whether the party that proffers the evidence has demonstrated good cause for not producing the evidence during proceedings before the ALJ.  The Board may require a party to produce relevant evidence or information at any point in the process.

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Completion of the Review Process 
(a) The Board has adopted the following standard of review. The standard of review on a disputed factual issue is whether the ALJ decision is supported by substantial evidence in the record as a whole. The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. The bases for modifying, reversing or remanding an ALJ decision include the following: a finding of material fact necessary to the outcome of the decision is not supported by substantial evidence; a legal conclusion necessary to the outcome of the decision is erroneous; the decision is contrary to law or applicable regulations; a prejudicial error of procedure (including an abuse of discretion under the law or applicable regulations) was committed.

(b) The Indian Health Service must demonstrate by clear and convincing evidence the validity of the grounds for the decision made and that the decision is fully consistent with the provisions and policies of the ISDEAA. 42 C.F.R. § 137.430.

(c) 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 need not consider issues not raised in the objections, nor issues which could have been presented to the ALJ but were not.

(d) The Board has 45 days from the date it receives the final authorized submission in the appeal to modify, adopt, or reverse the recommended decision. The Board also may remand the case to the Department of the Interior Board of Indian Appeals (IBIA) for further proceedings.  If the Board does not modify or reverse the recommended decision or remand the case to the IBIA during that time, the recommended decision automatically becomes final.

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Last Revised: 03/01/13