Ask the Legal Expert about ... administrative law judges

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John Durso, Esq. Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

A certain administrative law judge clearly screwed us on a previous decision and now it looks like we're going to get him again. Is there anything we can do to avoid this?

Federal law requires an administrative law judge to conduct a hearing “in an impartial manner.” To assure an impartial hearing, an ALJ may disqualify himself from the hearing at any time. 

He or she may not conduct a hearing in a case in which he is prejudiced or partial to the facility or has any interest in the matter. In addition to an ALJ disqualifying himself, a facility may file an objection, requesting him or her to disqualify himself. The facility must file its objections at the earliest opportunity, usually before the ALJ has made a substantive ruling. However, if the facility learns later of facts to support the disqualification, it can file the objection any time before the ALJ issues the decision.

The ALJ will consider the objections and decide whether to withdraw. If he or she withdraws, then the Centers for Medicare & Medicaid Services will designate another ALJ. If the ALJ does not withdraw, the facility may present its objections to the Departmental Appeals Board, as a reason for changing, modifying or reversing the ALJ's decision or for providing a hearing before another ALJ.

To prove that an ALJ should have disqualified himself on the grounds of prejudice or impartiality to the facility, a facility has a difficult burden to meet. It must overcome the strong presumption of his or her honesty and integrity. The facility must present convincing evidence that the ALJ posed a risk of actual and substantial prejudice. 

If you get the same judge and he does not disqualify himself, the best you can do is make your record and ask the DAB overturn his decision.