HHS issues procedures for selecting and appointing ALJs
On July 10th, 2018, President Trump issued an Executive Order excepting Administrative Law Judges (ALJs) from the Competitive Service selection process through which they were previously appointed to federal agencies, and directing that all new ALJ appointments be made into the Excepted Service (Executive Order No. 13843). The Executive Order was deemed necessary by the United States Supreme Court decision in Lucia v. Securities and Exchange Commission, which held that SEC ALJs are Inferior Officers of the United States, subject to the Appointment Clause of the Constitution, and thus must be appointed by the President, a court of law, or Department head.
Consistent with the Executive Order and the Lucia decision, HHS has developed procedures for Secretarial appointment of its ALJs, who hear cases at the Departmental Appeals Board (DAB) - Civil Remedies Division and the Office of Medicare Hearings and Appeals (OMHA). A link to the procedures is provided below.
The HHS procedures ensure that the appointment of ALJs to the Department continues to be a merit-based process. Prospective HHS ALJs must meet mandatory qualifications as well as provide evidence of desired skills and experience, specific to the needs of the DAB and OMHA. In addition, prospective ALJs will undergo a panel interview and will be required to participate in a proctored writing assessment. The procedures also protect the independence of HHS ALJs by involving career officials in making appointment recommendations to the Secretary. Ultimately, the focus and goal of HHS in appointing ALJs is to select and appoint ALJs who will fully and faithfully apply the law (statutory and regulatory) to the facts of each case and render decisions consistent with that law.
The new merit-based appointment process being adopted by the Department will assist the Department in its continuing efforts to reduce the Medicare appeals backlog.