C.F.R. » Title 42 » CHAPTER V—OFFICE OF INSPECTOR GENERAL-HEALTH CARE, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—OIG AUTHORITIES › PART 1005—APPEALS OF EXCLUSIONS, CIVIL MONEY PENALTIES AND ASSESSMENTS

42 C.F.R. § 1005.21

Appeal to DAB

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(a) Any party may appeal the initial decision of the ALJ to the DAB by filing a notice of appeal with the DAB within 30 days of the date of service of the initial decision. The DAB may extend the initial 30 day period for a period of time not to exceed 30 days if a party files with the DAB a request for an extension within the initial 30 day period and shows good cause.

(b) If a party files a timely notice of appeal with the DAB, the ALJ will forward the record of the proceeding to the DAB.

(c) A notice of appeal will be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions. Any party may file a brief in opposition to exceptions, which may raise any relevant issue not addressed in the exceptions, within 30 days of receiving the notice of appeal and accompanying brief. The DAB may permit the parties to file reply briefs.

(d) There is no right to appear personally before the DAB or to appeal to the DAB any interlocutory ruling by the ALJ, except on the timeliness of a filing of the hearing request.

(e) The DAB will not consider any issue not raised in the parties' briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.

(f) If any party demonstrates to the satisfaction of the DAB that additional evidence not presented at such hearing is relevant and material and that there were reasonable grounds for the failure to adduce such evidence at such hearing, the DAB may remand the matter to the ALJ for consideration of such additional evidence.

(g) The DAB may decline to review the case, or may affirm, increase, reduce, reverse or remand any penalty, assessment or exclusion determined by the ALJ.

(h) The standard of review on a disputed issue of fact 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.

(i) Within 60 days after the time for submission of briefs and reply briefs, if permitted, has expired, the DAB will issue to each party to the appeal a copy of the DAB's decision and a statement describing the right of any petitioner or respondent who is found liable to seek judicial review.

(j) Except with respect to any penalty, assessment or exclusion remanded by the ALJ, the DAB's decision, including a decision to decline review of the initial decision, becomes final and binding 60 days after the date on which the DAB serves the parties with a copy of the decision. If service is by mail, the date of service will be deemed to be 5 days from the date of mailing.

(k) (1) Any petition for judicial review must be filed within 60 days after the DAB serves the parties with a copy of the decision. If service is by mail, the date of service will be deemed to be 5 days from the date of mailing.

(2) In compliance with 28 U.S.C. 2112(a), a copy of any petition for judicial review filed in any U.S. Court of Appeals challenging a final action of the DAB will be sent by certified mail, return receipt requested, to the Chief Counsel to the IG. The petition copy will be time-stamped by the clerk of the court when the original is filed with the court.

(3) If the Chief Counsel to the IG receives two or more petitions within 10 days after the DAB issues its decision, the Chief Counsel to the IG will notify the U.S. Judicial Panel on Multidistrict Litigation of any petitions that were received within the 10-day period.

[57 FR 3350, Jan. 29, 1992, as amended at 63 FR 46691, Sept. 2, 1998; 65 FR 24419, Apr. 26, 2000]
Notes of Decisions
Cited in 17 cases (4 in the last 5 years), 1994–2026 · leading case: St. Anthony Hosp. v. United States Dep't of Health & Human Servs., 309 F.3d 680 (10th Cir. 2002).
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St. Anthony Hosp. v. United States Dep't of Health & Human Servs., 309 F.3d 680 (10th Cir. 2002). · cites it 3× “The DAB may extend the initial 30 day period for a period of time not to exceed 30 days if a party files with the DAB a request for an extension within the initial 30 day period and shows good cause.”
Lasher v. Dep't of Health & Human Servs., 369 F. Supp. 3d 243 (D.C. Cir. 2019). · cites it 5× “42 C.F.R. § 1005.21 (a). Along with the notice of appeal, the petitioner must submit "a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.”
Patel v. Shalala, 17 F. Supp. 2d 662 (W.D. Ky. 1998). · cites it 3× “42 C.F.R. § 1005.21 (a) and (g). The DAB will not consider any issues raised in the parties’ briefs which could have been, but was not, raised before the ALJ.”
David E. Sternberg v. Sec'y, Dep't of Health & Human Servs., 299 F.3d 1201 (10th Cir. 2002). “See 42 C.F.R. § 1005.21 (providing that an excluded individual may appeal ALJ decision to DAB).”
David A. BARRETT, Appellant, v. Dep't OF HEALTH & HUMAN Servs., Donna Shalala, Sec'y, Appellee, 14 F.3d 26 (8th Cir. 1994). “See 42 C.F.R. § 1005.21 (1992) (appeal to Departmental Appeals Board).”
Greenbrier Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., Centers for Medicare & Medicaid Servs., 686 F.3d 521 (8th Cir. 2012). “42 C.F.R. § 1005.21 (h). On appeal, the facility argued (1) that it was in substantial compliance with 42 C.”
Seide v. Shalala, 31 F. Supp. 2d 466 (E.D. Pa. 1998). “ALJ Riotto affirmed the Inspector General’s decision on March 20, 1998, finding that he was powerless to make the exclusion retroactive to the date of conviction and that the Inspector General’s written notice controlled the date the exclusion began to run. 42 C.F.R. § 1005.20…”
Ali v. U.S. Dep't of Health & Human Servs. (E.D. Mich. 2022). · cites it 6× “” AR 23 (citing 42 C.F.R. § 1005.21 (e)). Even considering the merits of Plaintiff’s argument, the DAB found no error as to the ALJ’s application of the aggravating factor at § 1001.”
Lasher v. Dep't of Health & Human Servs. (D.D.C. 2019). · cites it 3× “” 42 C.F.R. § 1005.21 (c). “DAB will not consider any issue not raised in the parties’ briefs, nor any issue in the briefs that could have been raised before the ALJ but was not.”
Bailey v. Azar (D.D.C. 2020). “42 C.F.R. § 1005.21 (a). And, should that appeal prove unsuccessful, the excluded individual may seek “judicial review of the Secretary’s final decision.”
Lane v. Azar (D. Maryland 2020). “Conversely, Lane argues that the Appeal Board’s decision declining review of an ALJ’s ruling constitutes a final agency decision pursuant to 42 C.F.R. § 1005.21 (j), which provides that the Appeal Board’s decision, “including a decision to decline review of the initial decision,…”
Nomo-Ongolo v. Sec'y of the U.S. Dep't of Health & Human Servs. (D. Minnesota 2018). “See 42 C.F.R. § 1005.21 (j). Judicial review of the Secretary’s final decision is authorized under Sections 1128(f)(1) and 205(g) of the Social Security Act.”
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— 42 C.F.R. § 1005.21(j) — 1 case
Ali v. U.S. Dep't of Health & Human Servs. (E.D. Mich. 2022). “” AR 23 (citing 42 C.F.R. § 1005.21 (e)). Even considering the merits of Plaintiff’s argument, the DAB found no error as to the ALJ’s application of the aggravating factor at § 1001.”
— 42 C.F.R. § 1005.21(k) — 1 case
Ali v. U.S. Dep't of Health & Human Servs. (E.D. Mich. 2022). “” AR 23 (citing 42 C.F.R. § 1005.21 (e)). Even considering the merits of Plaintiff’s argument, the DAB found no error as to the ALJ’s application of the aggravating factor at § 1001.”
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