DEPARTMENTAL APPEALS BOARD
GUIDELINES --
APPELLATE REVIEW OF DECISIONS OF ADMINISTRATIVE LAW JUDGES AFFECTING A
PROVIDER'S OR SUPPLIER'S ENROLLMENT IN THE MEDICARE PROGRAM
Introduction
Section
1866(j) of the Social Security Act, as amended by section 936 of Medicare
Prescription Drug, Improvement, and Modernization Act of 2003, authorizes
the Secretary to establish a process for the enrollment in the Medicare
program of providers of services and suppliers. A provider of services
or a supplier whose application to enroll (or to renew enrollment) is
denied is entitled to a hearing under the procedures at 42 C.F.R. Part
498. 71 Fed. Reg. 20,754 (Apr. 21, 2006); 71 Fed. Reg. 37,504 (June 30,
2006)(technical amendment). A hearing is provided by an administrative
law judge (ALJ) in accordance with subpart D of 42 C.F.R. Part 498. A
dissatisfied party (the provider or supplier or the Centers for Medicare
& Medicaid Services (CMS)) may request review of the ALJ decision
by the Departmental Appeals Board (Board). These guidelines have been
designed to assist the parties in understanding and following the procedures
in subpart E of 42 C.F.R. Part 498 relating to Board review.
If
you have any questions about these guidelines, you may call Appellate
Division attorney Carolyn Reines-Graubard at (202) 565-0116.
Starting the Review Process
(a)
Under 42 C.F.R. § 498.80, either party dissatisfied with an ALJ decision
or dismissal may request review by the Board
as specified in subpart E of 42 C.F.R. Part 498. Your
request for review must be filed within 60 days after you receive the
ALJ decision or dismissal unless you make a written request for
an extension which the Board grants for good cause shown. The Board will
presume that you received the ALJ decision or dismissal five days after
the date on the notice of decision or dismissal unless there is a showing
that it was received earlier or later.
(b)
Your request for review must specify the findings of fact and conclusions
of law with which you disagree, and your basis for contending that each
such finding or conclusion is unsupported or incorrect. You should not
merely incorporate by reference a brief previously submitted to
the ALJ. Instead, the Board expects that the basis for challenging each
element of the ALJ decision will be set forth in a separate paragraph
or section, and the accompanying arguments concisely stated. In addition,
where appropriate, each argument should be supported by precise citations
to the record and/or by precise citations to statutes, regulations or
other relevant authorities upon which you are relying.
Filing Requirements for All Submissions
(a) A submission is
considered "filed" on the postmark date, the date sent by registered or
certified mail, the date deposited with a commercial delivery service,
or the date a fax is sent.
(b) If the last day of the period for filing a submission falls on a federal nonworkday (a Saturday, Sunday, legal holiday, or a day which by statute or Executive Order is declared to be a nonworkday for federal employees), the submission may be filed on the next federal workday.
(c) All submissions
to the Board should be addressed to: Department of Health and Human Services,
Departmental Appeals Board, MS 6127, Appellate Division, 330 Independence
Ave., S.W., Cohen Building, Room G-644, Washington, D.C. 20201. Faxes
should be sent to (202) 565-0238. Do not fax a submission if it is over
10 pages.
(d) Both parties should
provide an original and two copies of all submissions to the Board and
a copy to the opposing party. (If your submission
is faxed, the required two copies should be mailed.) Include in
any submission to the Board a statement that you have sent a copy to the
opposing party.
(e) The parties should
not submit materials already in the record
to the Board since those materials will be transferred to the Board by
the ALJ.
Devlopment of the Record on Appeal
(a)
The request for review 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 requested review may submit a response. The response must
be filed within 30 days after
the opposing party receives a copy of the request for review.
(c) The party that
requested review 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 a request for review, 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
request for review, the response and the reply 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 required submission 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 rather than in person.
(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 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.
Completion of the Review Process
(a)
The Board may dismiss, deny, or grant CMS's request for review.
The Board will grant the provider's or supplier's request for review unless
the Board dismisses the request because: 1) the provider or supplier requests
dismissal; 2) the provider or supplier did not file timely (or show good
cause for late filing); 3) the provider or supplier does not have a right
to review; or 4) a previous determination or decision on the same facts
and law and regarding the same question has become final as specified
in 42 C.F.R. § 498.83(b)(4). The Board also may remand any case to the
ALJ, with appropriate instructions.
(b)
Generally, the Board will complete its review and issue a determination
within 30 days after it receives the last submission from the parties.
(c) 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. 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.
(d) The Board will
review only those parts of the record before the ALJ which are cited by
the parties or which the Board considers necessary to decide the appeal.
The Board will not consider issues not raised in the request for review,
nor issues which could have been presented to the ALJ but were not.
(e) The decision of
the Board (other than a remand by the Board to the ALJ) is binding unless:
the provider
or supplier has a right to judicial review and timely files a civil
action seeking judicial review in accordance with 42 C.F.R. §
498.90, or the Board reopens
and revises its decision in accordance with 42 C.F.R. § 498.102.
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