Articles on Law, Science, and Engineering

DAB Hearing Procedures [7] [index]

When the Department of Health and Human Services (HHS) proposes debarment or other administrative action for scientific misconduct, the accused individual or organization (respondent) is entitled to an in-person hearing before a panel from DAB. The guidelines for these hearings were developed by HAG and published to help scientists understand how to appeal actions proposed by HAG3. DAB may modify the Guidelines to fit the needs of a particular case.

If this sounds like you're on your own, you're right.

If HHS proposes debarment or other administrative action against you, how do you find out about it? It may be when you receive a notice from HHS telling you that it proposes to bar you from receiving grant funds.

After HAG3 has gathered enough evidence to satisfy the Director that a person or an organization has engaged in scientific misconduct and should be debarred or subjected to other administrative action, HHS sends a written notice of its proposed action. The notice should clearly summarize the basis for the proposed finding of misconduct and proposed administrative actions. This may be done directly or HHS may include an investigative report and refer to that report for any findings or legal conclusions underlying the proposed findings of misconduct or proposed administrative actions.

Now that you found out about your proposed debarment for alleged scientific misconduct, what can you do?

The first step is to request a DAB hearing in writing. This must be done within thirty days after receiving the HHS notice. The request must be addressed to:

    Research Integrity Adjudication Panel
    Departmental Appeals Board
    Room 367-D, Humphrey Building
    200 Independence Avenue S.W.
    Washington, D.C. 20201

Respondent's filing date for the hearing request is the postmark date (or, if hand delivered or transmitted by telecopier, the date received by DAB). If the deadline falls on a Saturday, Sunday or legal holiday, the filing date is the next business day.

Respondent's hearing request must include a succinct statement identifying all specific factual findings and administrative actions set out in the notice or report and relied on by HHS which respondent disputes. Factual findings stated or referred to in the notice that respondent does not specifically dispute will be considered admitted. Administrative actions that respondent does not specifically dispute will be considered accepted. Respondent's request should also identify any legal issues which respondent intends to raise.

At first glance, it would seem that the HHS notice and respondent's hearing request fully define the dispute to be decided by DAB. Not by a long shot. If HHS wishes to add new proposed findings of misconduct to the proceeding, HHS can amend its notice right up until it submits its final witness and exhibit list. The Guidelines require HHS to submit its final witness and exhibit list "according to the procedures set by the Presiding Panel Member." No deadline is specified in the Guidelines, but they suggest that the list is usually submitted at least thirty days before respondent's in-person hearing.

In other words, you may have only thirty days to prepare your defense against new charges added by amendment.

The Research Integrity Adjudication Panel that actually hears and decides each appeal (panel) is appointed by HHS immediately after receiving a hearing request. Each panel has three members. The "Presiding Panel Member" is designated by the chairperson of DAB from DAB staff to chair the panel, set procedures, supervise development of the appeal, and preside at the preliminary conference and the Hearing. If HHS or respondent makes a "timely" request, one of the other two panel members will be an "unbiased and disinterested" scientist or other expert who is not from DAB staff. The Guidelines don't spell out how the expert is selected, but it probably won't be by respondent. Whether or not a request is "timely" appears to depend upon it being made in such a manner that it does not delay the proceedings. The Guidelines do not address how the third panel member is appointed, but the inference is that s/he will be from DAB staff.

The panel, operating through the Presiding Panel Member, may exercise DAB's plenary authority to take whatever actions the panel deem necessary for fair, complete, and expeditious resolution of the case.

The panel is assisted by a staff attorney. Both HHS and respondent are permitted to contact the staff attorney with questions about case status and procedures.

The Presiding Panel Member is responsible for sending HHS and respondent written notice acknowledging receipt of respondent's hearing request. There is no deadline for sending the acknowledgment, but failure to receive it within a reasonable period of time should be cause for alarm by respondent.

The acknowledgment describes the next steps in the hearing process, and may include special information such as information about earlier decisions, etc. The acknowledgment also tells HHS to promptly notify the Presiding Panel Member and respondent of the name, address and telephone number of HHS's representative. Together, the HHS representative and respondent are referred to as the "parties." The acknowledgment also sets a tentative date for the preliminary conference, usually within two weeks. The preliminary conference is usually telephonic. Respondent must advise the board staff attorney "immediately" whether the proposed date and time are convenient and what telephone number to use. No "substantial delay" will be permitted. The Guidelines contemplate a delay of no more than "a few days" if the date is "inconvenient," but do not address delays for other reasons.

The purpose of the preliminary conference is to discuss scheduling and other matters. The Presiding Panel Member will want to discuss anything that will enable him or her to proceed with the case efficiently. Therefore, respondent should be prepared to discuss anything that the Presiding Panel Member finds appropriate. One important issue is whether HHS has sufficiently defined the findings to which respondent must respond. The Presiding Panel Member will probably want to establish the date for the final hearing and obtain some idea about how long it will take. In that connection s/he will probably be interested in simplifying, narrowing and clarifying issues and obtaining stipulations or admissions of undisputed facts, authenticity of documents, admissibility of evidence, and qualifications of expert witnesses. S/he may also want to clarify whether it will be necessary to brief legal issues prior to the hearing and, if so, set deadlines for filing written briefs. Other important issues include identifying what facts are in dispute and their relevance, what documents should be submitted and by when, and what witnesses will appear and the nature of their testimony.

The preliminary conference will be audiotaped. At the end of the conference, after consulting with the parties, the Presiding Panel Member will decide how the record of the conference will be kept. For example, a copy of the tape or a written summary may be kept in the record.

Respondent may elect to waive his or her right to an in-person hearing, thereby permitting the panel to review and decide the appeal on the basis of the written record. The written record would include briefs and documents submitted by the parties. There is provision in the Guidelines to supplement the written record with telephonic presentation.

If the HHS representative does not agree to dispense with the in-person hearing, the hearing will take place. Even if both parties agree to dispense with the in-person hearing, the Presiding Panel Member may require them to participate in a telephonic conference to answer questions about the case.

The procedure for the in-person hearing is determined by the Presiding Panel Member and the Guidelines. After consulting with the parties during the preliminary hearing, the Presiding Panel Member sets the place and time of the hearing. Generally, the hearing takes place at the site which is "most convenient for the largest number of participants" and which has appropriate facilities. Since at least three of the participants will usually be from Washington, most respondents should not expect their in-person hearings to be conducted near home.

The Presiding Panel Member presides at the hearing. Time limits for filing briefs and documents are set by the Presiding Panel Member. As with hearing deadlines, if the date falls on a Saturday, Sunday or legal holiday, the filing date is the next business day. The other members of the panel need not attend the hearing unless required to do so by the panel. All panel members have access to the hearing transcript and the rest of the hearing record.

The Guidelines state that the hearings will be "as informed as reasonably possible, consistent with the need to establish an orderly record." Unless HAG intends to sacrifice information for order, "informed" is probably a mistake. Respondent should assume that the hearing will be as informal as possible.

The Guidelines state there are no "formal" rules of evidence applicable to the hearing, and that the Presiding Panel Member will generally admit evidence unless it is clearly irrelevant, immaterial or unduly repetitious. The Federal Rules of Evidence define "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence. The Federal Rules state that irrelevant evidence is not admissible and also list many exceptions wherein relevant evidence can be excluded. Only one of the exceptions is "waste of time."

The Guidelines specifically permit the Presiding Panel Member to refer to the Federal Rules of Evidence for guidance, but admonish the parties to "avoid frequent objections to questions and documents." One way to avoid the obvious dilemma this poses is to request a list of the Federal Rules that the Presiding Panel Member intends to use during the in-person hearing. Since such information is needed to prepare for the hearing, it should be requested during the preliminary hearing.

However, the Presiding Panel Member is not constrained by the usual rules of evidence. The Guidelines state that the Presiding Panel Member may order a party to submit any information which the Presiding Panel Member determines may be relevant and important to a sound decision. In principle then, this means that the Presiding Panel Member can order either party to disclose communications with attorneys if the information in such communications is likely to be relevant to the case and important to a sound decision. However this is unlikely to happen because, if the Presiding Panel Member adopts rules that deny respondents the opportunity to confer candidly with counsel, reversal of any unfavorable final administrative action would be a distinct possibility. Of course, that could happen only if respondent has the resources to file suit after the hearing and maintain litigation against HHS.

If the party fails to provide information or evidence requested by the panel, the sanction is that the panel may draw a negative inference and assume that the information or evidence would have substantiated the proposition for which it was sought. No distinction is made between a refusal to provide information and a claim that a party cannot do so. Respondent also has the right to certain information under the Freedom of Information Act.

The HHS notice to respondent and respondent's hearing request are included in the hearing record, but they are not evidence. One exception is findings which are considered admitted by respondent because s/he did not dispute them in the hearing request. Findings considered admitted, even if inadvertently undisputed, will be taken as irrebuttable, conclusive evidence against respondent.

Further, as noted above, respondent cannot consider HHS's original notice to be a comprehensive summary of all the evidence that HHS may present at the in-person hearing. This is true even if the notice includes the entire investigative report. HHS can continue to develop its case right up until the Presiding Panel Member requires it to submit its witness and exhibit list. The Guidelines make no provision for respondent's response to amendments to the HHS notice. At a minimum, respondent should be permitted to add witnesses and evidence to refute any additional allegations or findings. However, the Guidelines specifically recite that the witnesses are "as agreed upon in the preliminary conference." This may present a problem for respondent if, for example, respondent needs to add a witness to refute additional evidence which is added by amending the original notice after the preliminary hearing.

The hearing is open to the public and all materials submitted to the panel are considered public records. This means that anything in the record may be disclosed to any person requesting it.

Once the hearing begins, each party is entitled to make an opening statement, present witnesses, cross-examine witnesses and make a closing statement. The panel members may ask questions too. Each witness will be warned that any false statement may be a basis for criminal prosecution. Generally, a witness can be excluded from the hearing room when not testifying.

In order to prevail, HHS must prove misconduct by a preponderance of the evidence. This means that there must be at least slightly more evidence that misconduct occurred than that it didn't.

No party may engage in ex parte contact with panel members or other DAB staff. This means that respondent must never send written materials to the panel without giving a copy to the HHS representative. It also means that respondent must never speak with a panel member or other DAB staff about matters related to his or her appeal unless the HHS representative is also present. The exception to this rule is that respondent may speak with the DAB staff attorney assigned to his or her appeal about purely procedural matters. No specific sanctions are spelled out for parties who make ex parte contact with DAB staff, but a respondent who does so can expect to be rebuffed severely. [8]

The ex parte rule is monitored by requiring each party to include a statement that s/he has provided the other party with a copy of any documents sent to DAB. The statement should accompany the document when it is sent to the other party as well as the document sent to DAB.

After the hearing is completed, respondent will be provided with a copy of the hearing transcript at no charge.

After consulting with the parties at the end of the hearing, the Presiding Panel Member decides whether post-hearing briefs will be allowed or required. The Presiding Panel Member sets deadlines for any such briefs.

Generally, the panel will issue a written decision within forty five days after the last action in the appeal. The panel's decision will be the final agency action on remedies specific to PHS. The Panel's decision on debarment under 45 CFR part 76 and 48 CFR 9.4 and 309.4 is a recommendation to the Deputy Assistant Secretary for Grants and Acquisition Management (DASGAM). DASGAM may reject findings of fact which form the basis of the panel's decision only if DASGAM determines them to be arbitrary and capricious or clearly erroneous. DASGAM usually makes a final decision on debarment within thirty days after receiving the panel's recommendation.

Next - Conclusions and Comments
Previous - Responsibilities of the Research Investigations Division