A hearing by an administrative law judge (“ALJ”) can be a stressful experience, especially if you are unprepared as to the procedures, process, and review of such hearings.  Below we offer a FAQ Series regarding important facts and considerations that doctors should be aware of regarding ALJ hearings.

What is an ALJ?

Administrative law judges (“ALJs”) are independent adjudicators that deliver decisions under numerous federal statutes.  Specifically, under the Administrative Procedures Act (“APA”), the ALJ is responsible for conducting public hearings similar to normal litigation in the courts of law.  Some of the many responsibilities of the ALJ include setting deadlines; holding hearings; gathering written statements, reports, and affidavits; scheduling conferences; issuing subpoenas; ruling on party motions; and announcing decisions.

What is the process of an ALJ hearing?

At the hearing, the ALJ assigned to your case will begin by outlining the issues that will be decided and the rules of the hearing.  Witnesses—including expert witnesses—may offer testimony at the hearing whereby the parties will have the opportunity to question such witnesses.  ALJ hearings are under oath and on the record—meaning that the individuals have been formally sworn to tell the truth under penalty of perjury.  The audio of these hearings is often recorded.

After the hearing, the parties have the option of filing post-hearing submissions, after which the ALJ will make their decision.  The decision of the ALJ should be sufficiently detailed and clearly outline the facts relied upon to form the conclusion, the legal basis for any conclusion reached, and whether the ALJ will be imposing fines or other sanctions upon the parties.

Can an ALJ make a decision without a hearing?

The answer here is yes.  Under 20 CFR § 416.1448—Deciding a case without an oral hearing before an administrative law judge—there are three basic circumstances where an ALJ can make a decision without holding a hearing. 

The first circumstance occurs when the decision is “fully favorable.”  In other words, if the evidence in the hearing record supports your case on every issue, the ALJ may issue their decision based on a preponderance of the evidence without holding a hearing.  In these cases, the notice of the decision will still explain that you have the right to an oral hearing and the right to examine the evidence that the ALJ based their decision upon.

The second circumstance occurs when the parties do not wish to appear.  This section can be relied upon when either: (1) all the parties indicate in writing that they do not wish to appear before the ALJ at an oral hearing or (2) you live outside the United States, do not inform the ALJ that you wish to appear at the hearing, and none of the other parties wish to appear.  The decision of the ALJ in these cases is based on the record of the material evidence presented by the parties in writing.

The last circumstance by which an ALJ can render a decision without holding a hearing occurs when the case is remanded for a revised determination.  For instance, the ALJ could remand your case if they have reason to believe that such revision would be favorable to you (unless any objections are made by which the ALJ must then rule upon).

Can ALJ hearings be cancelled or modified?

In certain instances, ALJ hearings can be cancelled or modified.  First and foremost, you should notify the ALJ that has been assigned to decide your case.  While this request should generally be made in writing, requests for cancellation or modification can be oral in emergency circumstances.  If you need to reschedule the date of the hearing, and you and your attorney present good cause as to why the hearing needs to be rescheduled, the ALJ will grant your request.  After the modification is granted, all parties will be given notice of the amended hearing.  In addition to date modifications, other modifications that can be requested include changes to the hearing’s time and place.  If there is good cause, the ALJ may change the scheduled time and place. 

Can an ALJ impose sanctions or fines?

It is possible for the ALJ to impose various fines and sanctions on the parties to a hearing—the extent of which depends upon the statute pertaining to the administrative proceeding.  Examples of sanctions and other fines include the following: censures, suspensions, license revocations, disgorgement, cease-and-desist orders, and additional civil penalties authorized under the relevant statute.

Can a decision of the ALJ be overturned and, if so, under what circumstances?

ALJ decisions are not binding legal precedent.  Courts or federal agencies can overturn their decisions under certain circumstances such as where those decisions are unsupported by substantial evidence in the record. 

Other reasons why an ALJ’s decision may be overturned include the following:

• The failure of the ALJ to satisfactorily assess a party’s or witness’ credibility.
• The ALJ’s final determination lacks a substantial rationale for their findings or the ALJ has inadequately explained the legal basis for their decision.
• The evidence presented to the ALJ—including material written evidence and testimony presented by witnesses—has not been properly evaluated or assessed.
• The ALJ’s procedures for soliciting and reviewing evidence failed to comply with the applicable statutory guidelines.
• Any decision or part of a decision made by the ALJ was not based on the weight of the evidence or was otherwise arbitrary and capricious.

What is the appeals process for an ALJ decision?

When a decision of an ALJ is appealed, you and your attorney will have the opportunity to describe the reasons why you believe the ALJ was wrong with respect to their promulgated decision.  It is sometimes possible for the parties to supplement the record at the appeal stage by adding additional evidence.  However, this must occur before the decision from the appeal is made.  The rules governing the appeal process differ depending on the statute at issue.  Once the evidence is gathered and reviewed, the appeals panel will make their decision.

How long does it typically take to receive a decision by the ALJ?

The time that one must wait to receive a decision by the ALJ can sometimes be quite lengthy.  While it primarily depends on the amount of work and other hearings that the ALJ and their staff must manage, individuals generally receive a written decision in about 60 days.  However, some decisions take anywhere from two months to six months to receive.  Further, although it is rare, there are some ALJs that will announce a favorable decision at the hearing.  This does suggest—though it is not always determinative—that favorable decisions are made more quickly than unfavorable decisions.

How can an attorney help at an ALJ hearing?

Statutes and regulations relevant to your hearing can be complex and demand the knowledge of an attorney.  Even though ALJ hearings do not demand the high standards of evidence as do ordinary court litigations, ALJ hearings nevertheless require a focused level of knowledge needed for important tasks such as questioning expert witnesses.  An attorney can provide this focused level of knowledge and are also apt in analyzing the record and building upon the evidence to create strong arguments before the ALJ—all of which can have a powerful impact on the ALJ's decision.

Conclusion

ALJ hearings are complicated and time-consuming with the potential of resulting in various negative consequences such as fines, penalties, suspensions, and license revocations—especially if not handled promptly and properly.  Hearings by an ALJ are rightfully a top concern for doctors.  Do not make the mistake into believing that everything will go away in time.  An attorney experienced in handling ALJ hearings will guide you through the hearing process from initial preparation to the examination of witnesses and finally to appeals, if necessary.  Contact an experienced ALJ attorney today to safeguard your professional license, career and business, and reputation as soon as possible!