45 C.F.R. § 13.3

Proceedings covered

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(a) These rules apply only to adversary adjudications. For the purpose of these rules, only an adjudication required to be under 5 U.S.C. 554, in which the position of the Department or one of its components is represented by an attorney or other representative (“the agency's litigating party”) who enters an appearance and participates in the proceeding, constitutes an adversary adjudication. These rules do not apply to proceedings for the purpose of establishing or fixing a rate or for the purpose of granting, denying, or renewing a license.

(b) If the agency's litigating party enters an appearance, Department proceedings listed in appendix A to this part are covered by these rules. Also covered are any other proceedings under statutes that incorporate by reference the procedures of sections 1128(f), 1128A(c)(2), or 1842(j)(2) of the Social Security Act, 42 U.S.C. 1320a-7(f), 1320a-7a(c)(2), or 1395u(j)(2). If a proceeding is not covered under either of the two previous sentences, a party may file a fee application as otherwise required by this part and may argue that the Act covers the proceeding. Any coverage issue shall be determined by the adjudicative officer and, if necessary, by the appellate authority on review.

(c) If a proceeding is covered by these rules, but also involves issues excluded under paragraph (a) of this section from the coverage of these rules, reimbursement is available only for fees and expenses resulting from covered issues.

[45 FR 45252, Oct. 4, 1983, as amended at 69 FR 2845, Jan. 21, 2004]

Notes of Decisions

Cited in 3 cases, 1985–2012 · leading case: HANDRON v. Sebelius, 669 F. Supp. 2d 490 (D.N.J. 2009).

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HANDRON v. Sebelius, 669 F. Supp. 2d 490 (D.N.J. 2009). · cites it 2× “” 45 C.F.R. § 13.3 . When the Administrative Conference is charged with the duty of interpreting a statute and developing model rules, the resultant rules are entitled to “some deference.”

Clifton v. Heckler, 755 F.2d 1138 (5th Cir. 1985). “7 Further, Clifton fails to cite 45 C.F.R. § 13.3 , which expressly limits application of the Secretary’s rules implementing the EAJA to adversary adjudications.”

Handron v. Sec'y Dep't of Health & Human Servs., 677 F.3d 144 (3rd Cir. 2012). · cites it 3× “45 C.F.R. § 13.3 (a). 4 HHS has also adopted regulations defining when the government — through the Centers for Medicare and Medicaid Services (“CMS”) or one of its contractors— may participate in an ALJ hearing.”

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