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Establishing a New Merit-Based Process for Appointing Administrative Law Judges at HHS

Blog describes how HHS is implementing a new merit-based selection and appointment process for administrative law judges at the department.

There are 126 administrative law judges (ALJs) and other comparable officials working at the Department of Health and Human Services, hearing disputes involving Medicare and Medicaid eligibility, claims, fraud and abuse; penalties for health information privacy and security violations; research misconduct; and more. A Supreme Court case last year, however, raised potential questions about the appointments of all federal ALJs.

The Court in June ruled that ALJs at the Securities and Exchange Commission were “officers of the United States” subject to the Appointment Clause of the Constitution, which requires officers to be appointed by the president, the heads of departments or the courts. The Court’s decision raised concern at HHS because our ALJs had not been appointed by the secretary, but rather by lower agency officials.

On July 10, 2018, President Donald Trump acted to remove uncertainty about ALJ appointments, as part of his commitment to running the government smoothly, efficiently and on behalf of hardworking taxpayers.  His Executive Order 13843 excepted ALJs from the competitive service so agency heads, like HHS Secretary Alex Azar, could directly appoint the best candidates through a process that would ensure the merit-based appointment of individuals with the specific experience and expertise needed by the selecting agencies. The process is similar to the one used to hire attorneys throughout the executive branch.

Today, HHS is announcing how the department will implement a new ALJ selection and appointment process. The department’s ALJs work for the Office of Medicare Hearings and Appeals (101) and the Departmental Appeals Board (13). The DAB also has seven administrative appeals judges and five Departmental Appeals Board members, and the new ALJ selection and appointment process will apply to these “comparable officials” as well.

The new HHS ALJ selection and appointment process is effective immediately and is described on the websites of the OMHA and the DAB.

Under this merit-based process, HHS has established required and desired qualifications for ALJ candidates that meet the needs of the OMHA and DAB for their ALJs. Career officials with extensive experience in administrative law and HHS programs will make recommendations to the Secretary of Health and Human Services, who will then select and appoint the top candidates. The final decision is the Secretary’s, and HHS will not seek consultation with or concurrence from outside officials.

In crafting the new selection and appointment process, HHS focused on identifying and appointing ALJs who will faithfully apply the law – statutory and regulatory – to the facts of each case and render decisions consistent with that law.

These changes will not only allow the department to appoint ALJs more quickly and maintain the critical independence that the American people expect, but will also allow us to ensure HHS ALJs have the knowledge and skills necessary for working at the department from day one. 

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