Departmental Appeals Board

GUIDELINES --
APPELLATE REVIEW OF ADMINISTRATIVE LAW JUDGE DECISIONS UNDER
THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 (PFCRA)

• Introduction
• Starting the Review Process
• Development of the Record on Appeal
• The review process at the Board

Introduction

The Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. §§ 3801 through 3812, establishes an administrative remedy against any person who makes a false claim or written statement to any of certain federal agencies, including the Department of Health and Human Services (Department).

The Department established regulations at 45 C.F.R. Part 79 governing PFCRA cases. Under those regulations, the Departmental Appeals Board (Board), formerly the Departmental Grant Appeals Board, is the "authority head" designated to hear appeals from an administrative law judge's (ALJ's) initial decision under PFCRA. See 45 C.F.R. § 79.2. The regulations pertaining to appeals of an ALJ's initial decision are found at 45 C.F.R. § 79.39. These guidelines have been designed to assist the parties in understanding and following the procedures relating to Board review.

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

Starting the Review Process

A defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal the ALJ's decision by filing a notice of appeal with the Board. A notice of appeal must be filed:

• within 30 days after the ALJ issues an initial decision,
• within 30 days of the ALJ's denial of a motion for reconsideration, or
• within 30 days after the ALJ issues a revised decision based on a motion for reconsideration.

Only a Defendant has the right to appeal an ALJ's decision. However, either party may file a motion for reconsideration. Consequently, if the Department files a timely motion for reconsideration with the ALJ, consideration of the Defendant's appeal will be stayed pending resolution by the ALJ of the motion for reconsideration. The Board may extend the original 30-day period for filing an appeal by an additional 30 days. In order to receive an extension, the Defendant must file a written request, which shows good cause for an extension, within the initial 30-day period for an appeal. In all cases, an extension request should be filed as soon as possible.

• To file, submit your appeal to the Department of Health and Human Services, Departmental Appeals Board, MS6127, Appellate Division, 330 Independence Ave., S.W., Cohen Building, Room G-644, Washington, DC 20201.

• Filing requirements for submissions to the Board's Appellate Division are the same as those at 45 C.F.R. § 79.26.

• Your appeal must include a written brief specifying findings of fact or conclusions of law with which you disagree (exceptions), and your basis for contending that each such finding or conclusion is unsupported or incorrect. Do not merely incorporate by reference a brief previously submitted to the ALJ. The basis for challenging each element of the ALJ decision should be set forth in a separate numbered paragraph or section, and the accompanying arguments concisely stated. Where appropriate, each argument should be supported by precise citations to the record before the ALJ or by precise citations to statutes, regulations or other authorities relied upon. Do not submit materials already in the record.

• Whenever you submit anything to the Board, provide an original and two copies to the Board and a copy to your opponent. Include in your submission to the Board a statement that you have sent a copy to your opponent.

Development of the Record on Appeal

• The appeal will be heard by a panel of three Board Members, one of whom presides. The panel will be assisted by a staff attorney, who also functions as the parties' contact for questions about case status and procedures.

• After the time for motions for reconsideration to the ALJ has passed, the panel will request the record from the ALJ.

• The Department may file a brief in opposition to the Defendant's exceptions within 30 days of receiving the notice of appeal and accompanying brief.

• There is no right to appear personally before the Board. Further, the Board would not ordinarily anticipate additional briefing after the Department submits its brief. Therefore, the parties' briefs should be as complete and well-developed as possible.

• The Board may request additional information at any point in the process.

The Review Process at the Board

• The panel may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment determined by the ALJ in any initial decision. Generally, the panel will complete its review and issue a final decision 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. 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.

• The panel will review only those parts of the record before the ALJ which are cited by the parties or which the panel considers necessary to decide the appeal. The panel will not consider issues not raised in the request for review, nor issues which could have been presented to the ALJ but were not.

• The parties may make offers of compromise or settlement at any time. See 45 C.F.R. § 79.46(a). The Board has exclusive authority to compromise or settle a case after the date on which the ALJ issues an initial decision, except during the pendency of judicial review (45 C.F.R. § 79.42) or during the pendency of any action to collect penalties and assessments under 45 C.F.R. § 79.43.

• Other than a decision involving a remand to the ALJ, the decision of the panel constitutes the final administrative action in an appeal. Unless a petition for judicial review is filed as provided in 31 U.S.C. § 3805, within 60 days after the date on which the panel serves the Defendant with a copy of its decision, a determination that a Defendant is liable under 45 C.F.R. § 79.3 is final and not subject to judicial review. See 45 C.F.R. §§ 79.39(l) and 79.42.