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| A participant is an individual or entity that has applied for a payment, loan, loan guarantee, or other benefit in accordance with any program of a specified agency. A participant also is anyone whose right to participate in or to receive any such benefit is adversely affected by a decision of an agency. |
| An adverse decision is an administrative decision made by an officer, employee, or committee of an agency that is adverse to a participant. Adverse decisions include a denial of equitable relief by an agency or the failure of an agency to issue a decision or act on the request or right of the participant within the timeframe specified by law or regulation or within a reasonable time if no timeframe is specified in law or regulation. |
The law provides that a decision by an agency over which NAD had jurisdiction which is adverse to a participant can be appealed to NAD by the participant.
Some adverse decisions may be initially determined by an agency as not appealable, but the Director may finally determine if it is appealable. A timely request may be made to NAD for a determination of the appealability of a specific adverse decision and the Director determines if the adverse decision is a matter of general applicability and not subject to appeal, or adverse to the individual participant and thus appealable.
An appeal must be in writing and must be submitted by the participant who receives the adverse decision. The appeal must be signed personally by an appellant, but not need be notarized.
An appeal should be filed at the appropriate Regional Office.
An appeal must be received in the Regional Office no later than 30 calendar days after the participant first received notice of the adverse decision (or no later than 30 calendar days after the participant received a NAD determination that an agency decision is appealable). The appeal should state what agency decision is being appealed and should include, if possible, a copy of the adverse decision and a brief statement of why the decision is wrong. A copy of the appeal request should be sent to the agency.
When a perfected appeal is received in the Regional Office, it is assigned to a Hearing Officer.
An appellant may elect a telephone hearing, request a record review, or an evidentiary hearing in person. The Hearing Officer will consider the agency record, together with evidence submitted by the appellant and the agency. The hearing will be conducted in a manner that will obtain the facts relevant to the matters at issue. There are no formal rules of evidence. An in-person hearing will be held in the appellant’s state of residence or at a location that is otherwise convenient. A tape recording constitutes the official record of the hearing and the parties have a right to a copy of the official record.
The hearing officer may hold a telephone conference call with the appellant and the agency before the hearing. The prehearing conference is designed to attempt to resolve the dispute or narrow the issues involved. During the prehearing teleconference, the hearing officer assures that everyone is prepared for the hearing, and sets the time and place of the hearing. Stipulations may be made, the need for specific witnesses discussed, and the need for certain evidence decided.
Hearings are scheduled within 45 days of the date the appeal was received in the Regional Office. At the hearing, the appellant and the agency may present relevant testimony and documentary evidence. The hearing officer conducts the hearing in a manner to afford the appellant an opportunity to prove by a preponderance of evidence that the agency’s decision was erroneous. The Hearing Officer is not bound by previous finding of fact on which the agency’s decision was based, and issues a determination consistent with the laws and regulations of the agency and their generally applicable interpretations. The Hearing Officer may leave the hearing record open for a reasonable period following the hearing for the submission of additional information. At the end of that period, the hearing record is deemed closed.
A determination in the case is issued by the hearing officer within 30 days of closing the hearing record if the hearing was in-person or by telephone. If the appellant requested a record review, a determination is issued within 45 days of receipt of the request for a record review.
In the determination, the hearing officer determines if the appellant proved that the agency erred in its adverse decision.
The hearing officer’s determination may be subject to a Director review if a timely request is made by the appellant or the head of the agency.
If no request for a Director’s review is timely filed, the hearing officer’s determination becomes final.
If the hearing officer determined that the agency erred, the head of the agency has 15 business days from receipt of the determination to request that the Director review the hearing officer’s determination. The request must be signed by the head of the agency and must include specific reasons why the hearing officer’s determination is wrong, including citations of law or regulation the agency believes the determination violates.
If the hearing officer determined that the agency was not in error, the appellant has 30 calendar days from the day he/she receives the determination to request that the Director review the hearing officer’s determination. An appellant’s request for a Director’s review must be signed by the appellant and must include specific reasons why the appellant believes the hearing officer’s determination is wrong.
