Skip to main content

OCAHO Practice Manual

OCAHO Practice Manual
Chapter 4 - Prehearing Procedures

4.8 - Settlement and Consent Findings

(a) Generally

Parties and their authorized representatives may (and are encouraged to) engage in settlement negotiations during the course of OCAHO proceedings. If the parties have entered into a settlement agreement, they must take one of the following actions:

  • submit to the ALJ the settlement agreement containing consent findings, along with a proposed decision and order; or
  • notify the ALJ that the parties have reached a full settlement and have agreed to the dismissal of the case.

(b) Contents of Consent Findings

A settlement agreement containing consent findings and a proposed decision and order disposing of a case (or any part of a case) must include the following provisions:

  • that the decision and order based on consent findings shall have the same force and effect as a decision and order made after full hearing;
  • that the entire record on which any decision and order may be based consists solely of the complaint, Notice of Case Assignment, and any other pleadings and documents specified by the ALJ;
  • a waiver of any further procedural steps before the ALJ; and
  • a waiver of any right to challenge or contest the validity of the decision and order entered into in accordance with the agreement.

(c) Disposition and Dismissal

      (1) Consent Findings - If the ALJ is satisfied with the timeliness, form, and substance of an agreement containing consent findings, the ALJ will accept the agreement by entering a decision and order based upon the agreed findings. However, the ALJ may conduct a hearing to determine the fairness of the agreement.

      (2) Settlement - Dismissal of an OCAHO case based on settlement is subject to the approval of the ALJ. The ALJ may require the parties to file a copy of the settlement agreement.

(d) OCAHO Settlement Officer Program

      (1) Purpose and Eligibility - In appropriate circumstances and with the consent of all parties in the case, an OCAHO case may be referred to a settlement officer to mediate settlement negotiations as a means of alternative dispute resolution. Any active OCAHO ALJ (other than the presiding ALJ in that case) may serve as a settlement officer. The CAHO may also serve as a settlement officer in a case under INA § 274B.

The settlement officer convenes and oversees settlement conferences and negotiations, confers with the parties jointly and/or individually, and seeks voluntary resolution of issues. Unlike the presiding ALJ, the settlement officer does not render a formal decision in the case.

      (2) How Cases May Be Referred to a Settlement Officer - The presiding ALJ may refer a case to a settlement officer if:

  • the ALJ determines that the case is appropriate for referral to a settlement officer; and
  • the ALJ receives written confirmation from each party in the case stating that they consent to referral of the case to a settlement officer.

If the presiding ALJ determines that referral to a settlement officer is appropriate, the presiding ALJ will issue an order referring the case to the settlement officer, designating the name of the settlement officer to whom the case is being referred, and specifying whether and to what extent the procedural deadlines in the case have been stayed.

The parties may request referral of a case to a settlement officer at any time while proceedings are pending up to 30 days prior to the date scheduled for a hearing in the case. Settlement negotiations before the settlement officer may not extend beyond 60 days from the date of referral to the settlement officer. However, if the parties consent, the settlement officer may seek to extend the time period for negotiations for a reasonable amount of time (but not more than an additional 30 days).

No party has a right to have a case referred to a settlement officer. The decision of the presiding ALJ not to refer a case to a settlement officer in no way precludes or prohibits the parties from conducting settlement negotiations between themselves or from reaching a settlement and proceeding in accordance with 28 C.F.R. § 68.14.

      (3) Conduct of Settlement Negotiations - The settlement officer will generally communicate with the parties by telephone or video conference call. However, the settlement officer may schedule an in-person conference with the parties in certain circumstances.

The settlement officer will convene and preside over conferences and settlement negotiations between the parties. The settlement officer may confer with the parties jointly and/or individually. Additionally, the settlement officer may require that an attorney or other authorized representative for each party be present at settlement conferences, and may require that the parties or representatives with full settlement authority also be present or available by telephone. The settlement officer may also impose other reasonable requirements on the parties to expedite an amicable resolution of the case.

      (4) Confidentiality of Settlement Negotiations - No evidence regarding statements or conduct in the settlement proceedings under the settlement officer program will be admissible in the underlying OCAHO proceeding – or in any subsequent proceeding before OCAHO – except by stipulation of all parties. Any document disclosed in the settlement process may not be used by any other party in litigation unless it is obtained through appropriate discovery or subpoena. The settlement officer will not discuss any aspect of the case with the presiding ALJ, except to request an extension of the negotiation period. The settlement officer also may not be subpoenaed or called as a witness in any hearing in the case or in any subsequent administrative proceeding before OCAHO with respect to any statement or conduct during the settlement discussions.

The proceedings before the settlement officer will be subject to the confidentiality provisions of 5 U.S.C. § 574, which generally prohibit the parties and the settlement officer from disclosing any dispute resolution communications, unless a specific exception applies. Parties may also agree to alternative confidentiality protections by entering into a confidentiality agreement between themselves. However, if the agreement provides for alternative confidentiality protections regarding disclosure by the settlement officer, the parties must inform the settlement officer of any modifications to the confidentiality protections of 5 U.S.C. § 574 before beginning settlement negotiations using the settlement officer procedure.

      (5) Termination of Settlement Negotiations - If settlement is reached pursuant to negotiations under the settlement officer program, the parties must proceed in accordance with 28 C.F.R. § 68.14. See paragraphs (a)-(c) of this section.

If the time period for settlement negotiations before a settlement officer expires, settlement negotiations before the settlement officer will be terminated and the case will be returned to the presiding ALJ for appropriate further action.

If any party unambiguously indicates that it no longer wishes to participate in settlement negotiations, or if the settlement officer determines that further negotiations would be unproductive or otherwise inappropriate, the settlement negotiations before the settlement officer will be terminated and the case will be returned to the presiding ALJ for appropriate further action.

The termination of settlement negotiations before the settlement officer in no way precludes or prohibits the parties from continuing or resuming settlement negotiations between themselves, and the parties may still reach a settlement agreement and proceed in accordance with 28 C.F.R. § 68.14.