On January 26, 2001, an Administrative Law Judge issued a series of decisions in favor of the appellant provider in a number of home health benefit claims arising under Part A of Title XVIII of the Social Security Act (hereinafter the Act). In a motion filed on April 26, 2001, the appellant requested an award of attorney fees under the Equal Access to Justice Act (EAJA). 5 U.S.C. § 504. The Administrative Law Judge awarded attorney fees and costs under EAJA in an order issued on August 21, 2001.

The Centers for Medicare and Medicaid Services (CMS) then referred the case to the Medicare Appeals Council for its consideration. On October 19, 2001, the Medicare Appeals Council notified the appellant that it had decided to review the Administrative Law Judge's action on its own motion. The Council's notice specified that its review was limited to the order awarding fees and costs issued on August 21, 2001, and that the decisions on the underlying claims issued on January 26, 2001, would remain in effect.

After considering the relevant statutes, regulations, and case law, as well as the arguments put forth in the appellant's and the agency's various filings, the Medicare Appeals Council has concluded that the Equal Access to Justice Act is inapplicable to the proceedings in this case. Accordingly, the Council vacates the Administrative Law Judge's order dated August 21, 2001, and issues this decision denying the petition for attorney fees and costs under EAJA.

A. EAJA Statute

The Equal Access to Justice Act provides for payment of attorney fees to a party prevailing against the United States, providing certain other requirements are met, "in any civil action ... in any court," 28 U.S.C. § 2412(d)(1)(A), and in an "adversary adjudication" conducted by an administrative agency, 5 U.S.C. § 504(a)(1). The proceedings in the present case were purely administrative, arising solely from the fiscal intermediary's determinations below, and did not involve a "civil action ... in any court." Consequently, § 2412 is inapplicable. See Melkonyan v. Sullivan, 501 U.S. 89, 94 (1991)("Section 504 ... is the only part of the EAJA that allows fees and expenses for administrative proceedings conducted prior to the filing of a civil action."). Compare Sullivan v. Hudson, 490 U.S. 877, 892 (1989)(applying EAJA under § 2412 to administrative proceedings before an Administrative Law Judge of the Social Security Administration after court remand only because the civil action "remain[ed] pending and depend[ed] for its resolution upon the outcome of the administrative proceedings").

A prevailing party, other than the United States, may be awarded attorney fees for an administrative proceeding if it is an "adversary adjudication" under 5 U.S.C. § 504. Section 504 defines "adversary adjudication" as, in relevant part, "an adjudication under section 554 of this title⁽¹⁾ in which the position of the United States is represented by counsel or otherwise." 5 U.S.C. § 504(b)(1)(C). Attorney fees are precluded under EAJA even in an adversary adjudication where "the position of the agency was substantially justified" or where "special circumstances make an award unjust." 5 U.S.C. § 504(a)(1).

B. Administrative Proceedings Leading to Favorable Decision on Medicare Coverage and Payment Issues

The matter at issue in the Administrative Law Judge's decision dated January 26, 2001, involved an overpayment determination by Palmetto Government Benefits Administrators, the fiscal intermediary responsible for processing claims from the appellant provider. On February 29, 2000, the intermediary notified the appellant that determinations in a sample of claims spanning April through June 1999 had been reopened and revised. Extrapolating from amounts in the sample claims found on re-examination to have been incorrectly paid, the intermediary arrived at an overpayment figure for the target universe of claims and proposed to recoup this amount from the appellant. The notice further advised the appellant that the revised claim determinations could be appealed, and that a rebuttal could be filed within 15 days stating why the proposed recoupment of the overpayment should not be put into effect (Exh. 19).⁽²⁾

Section 1816(a) of the Social Security Act delegates to contracting fiscal intermediaries the authority to make determinations of the payment amounts due providers and to disburse such payments. Fiscal intermediaries are also authorized "to make such audits of the records of providers as may be necessary to insure that proper payments are made . . . [and] . . . to perform such other functions as are necessary to carry out" the functions assigned by law to the intermediary. See § 1816(a)(2)(B) and (C). These duties are further detailed in the regulations at 42 CFR 421.100.

The authority to reopen and revise initial determinations on claims for benefit payments under Part A of Medicare (Hospital Insurance Benefits, including home health services) is set forth in CMS regulations at 42 CFR 405.750(b) and in the relevant sections of the Social Security Administration regulations incorporated by that regulation.⁽³⁾ Within one year, an initial determination may be reopened for any reason. 42 CFR 405.750(b)(1). An initial determination so reopened and revised takes the place of the prior initial determination and entails the same appeal rights as that determination would have had. See 42 CFR 405.708.

The appellant in this case exercised its right to a hearing on the individual claims and the sampling methodology (Exh. 32). See §§ 1869 and 1879 of the Act, 42 CFR 405.720 of the regulations, and HCFA Ruling 86-1.⁽⁴⁾ After considering the appellant's rebuttal statement and reconsideration request, the intermediary modified its findings and adjusted the projected overpayment downward (Exhs. 21 and 25). In his decision dated January 26, 2001, the Administrative Law Judge reversed the overpayment findings in most of the remaining claims, and further found that the statistical methodology used to project the sample findings to the target universe was invalid (Exh. MAC-1).

C. Application of EAJA to the Present Case

On August 21, 2001, the Administrative Law Judge issued an order awarding fees and costs to the appellant under EAJA. After the order was issued, Nigel F. Gant, Assistant Regional Counsel in Dallas for the Department of Health and Human Services (DHHS), submitted a request that the Medicare Appeals Council review the Administrative Law Judge's order on its own motion (Exh. MAC-10). Copies of this request and its attachments were served upon the appellant's counsel and were forwarded to the Medicare Appeals Council by the Centers for Medicare and Medicaid Services (CMS).

1. Arguments Raised in the EAJA Proceeding

In his order, the Administrative Law Judge outlined the arguments of the appellant and the agency counsel for and against application of EAJA in this case. See pages 2-4 of Order Awarding Fees and Costs Under Equal Access to Justice Act (Exhibit MAC-9). The Medicare Appeals Council finds this passage to be an accurate summary of the principal arguments, and incorporates it into this decision by reference.

a. Appellant's Arguments

Briefly, the appellant offered the following contentions to demonstrate that the proceeding was adversarial and that attorney fees should be awarded:

1.) Nigel F. Gant, Assistant Regional Counsel for DHHS in Dallas, represented both HCFA (now CMS) and the intermediary and negotiated restrictions in the discovery of evidence in the intermediary's possession;

2.) The appellant incurred additional fees and costs when three other named "HCFA representatives" declined to withdraw the overpayment extrapolation after appellant's counsel had informed them it was flawed; and

3.) Alice Barth, a statistician with the intermediary, "appeared and testified as the representative" of the intermediary.

b. Agency Counsel's Arguments

Arguments presented by Ms. Gant against finding the proceeding adversarial and applying EAJA were the following:

1.) Departmental regulations at 45 CFR 13.1 et seq. exclude the proceeding in question from EAJA;

2.) The hearing was "akin" to those for Social Security benefits, where the U.S. Supreme Court found EAJA inapplicable with one exception not pertinent here (see Sullivan discussion above);

3.) The present proceeding was not governed by the Administrative Procedure Act (APA), and therefore was not subject to EAJA; and

4.) The departmental counsel and intermediary employees cited by the appellant functioned only collaterally to the substantive adjudication (in the case of counsel), or served as lower-level adjudicators or as an evidentiary witness (in the case of Ms. Barth).

2. Discussion of Arguments

Ms. Gant's first and third arguments against applying EAJA form no part of the basis for the Council's decision. As the Administrative Law Judge noted, the regulations Ms. Gant cited in her first argument applied under their own terms only to adversary adjudications pending between October 1981 and September 1984. See 45 CFR 13.2. The Department of Health and Human Services issued new proposed rules in 1987, which were never finalized (52 FR 23311). Proposed rules were issued again on August 13, 2002 (67 FR 52696-02). Final rules have not yet been issued. Neither the expired regulations nor the rules not yet finalized are binding on adjudicators, and therefore this decision does not rely on them.

As to whether the APA governs the proceedings in this case, the U.S. Supreme Court has noted that the Social Security Act predates the APA and served as its model, but the Court declined to decide whether the APA governs administrative hearings in Social Security claims. See Richardson v. Perales, 402 U.S. 389, 409-10 (1971). In the most recent proposed EAJA rules, however, DHHS stated, in part, that EAJA should be applied to

HHS proceedings for which the statutory entitlement to a hearing rests either on a statute tracking the language of the provision underlying the disability hearings (section 205(b) of the Social Security Act, 42 U.S.C. 405(b)), or on a statute incorporating that provision by reference.

67 FR 52696, 52698 (August 13, 2002).

While not directly addressing the APA or 5 U.S.C. § 554, this language suggests that a petition for EAJA fees in a case such as the appellant's should not be summarily denied on the grounds that it does not involve an adjudication under § 554.⁽⁵⁾ Accordingly, the material question in this case is whether the proceeding meets the further requirement that it be an "adversary" adjudication under 5 U.S.C. § 504(b)(1)(C), and, specifically, whether the "position of the United States [was] represented by counsel or otherwise."⁽⁶⁾

The remaining arguments as summarized in the decision center on whether Sullivan v. Hudson is controlling in Medicare provider overpayment cases such as this, and whether - even if Sullivan does encompass this proceeding as intended in the law and regulations - the participation of the department's counsel, the three named agency employees, or the intermediary statistician (or several or all of these) served to represent the position of the United States by counsel or otherwise and thus overcome the Sullivan precedent.

a. Application of Sullivan Holding

The Administrative Law Judge acknowledged the holding of the United States Supreme Court in Sullivan v. Hudson, 490 U.S. 877, 891 (1989), that Social Security benefit hearings before Administrative Law Judges under section 205(b) of the Social Security Act "are not 'adversarial' within the meaning of 504(b)(1)(C)." Although EAJA was held to apply to the administrative proceedings in Sullivan, the Court's holding was explicitly limited to administrative proceedings after court remand and pending final court judgment, and any fees awarded under Sullivan would be under 28 U.S.C. § 2412(d))1)(A), not 5 U.S.C. § 504(a)(1). Even in that limited circumstance, it was the inextricable connection between the proceedings on remand and the ultimate court decision that warranted attorney fees under § 2412, not the proceedings themselves: "for purposes of the EAJA Social Security benefit proceedings are not 'adversarial' within the meaning of Section 504(b)(1)(C) either initially or on remand from a court." 490 U.S. 877, 891 (emphasis added).

In so holding, the Sullivan Court cited the statement in an earlier Supreme Court decision that the Social Security Administration "operates essentially ... as an adjudicator and not as an advocate or adversary." See Richardson v. Perales, 402 U.S. 389, 403 (1971). Although Sullivan concerned a claim for Social Security disability benefits, the decision is pertinent to the present case because the statutory provisions applicable to Social Security hearings and appeals also apply to Medicare. See §§ 1869(b)(1) and 205(b) and (g) of the Social Security Act (a hearing on a claim for Medicare benefits is available to "the same extent as is provided" for a hearing on a claim for Social Security benefits).

Moreover, hearings and appeals in Medicare coverage and payment claims are currently adjudicated pursuant to the same procedural regulations that govern disability hearings and appeals. See 42 CFR 405.701(c). These regulations specify that proceedings before an Administrative Law Judge of the Social Security Administration are to be nonadversarial. 20 CFR 404.900(b). As in Medicare, a reopened and revised determination regarding Social Security or Supplemental Security Income benefits under Titles II and XVI of the Act, respectively, may result in an overpayment finding and recoupment or adjustment of benefits. See §§ 204 and 1631(b) of the Act. Administrative appeals in such cases are nonadversarial under the same procedures as appeals of initial claims.

Neither CMS, formerly HCFA, nor the intermediary was a party to the present case at any level through the final Administrative Law Judge decision of January 26, 2001. See 42 CFR 405.720(b), 405.710(b), and 405.704(c). Nor did the Administrative Law Judge seek to make either a party: The record contains a copy of the notice of hearing sent to the appellant, with an annotation that a copy was sent to appellant's counsel, but no other person or entity was noticed as a party to the hearing. Had the intermediary sought to appear as a party through counsel or otherwise, such a request would have been inappropriate and would properly have been refused by the Administrative Law Judge pursuant to 20 CFR 404.932 and 404.950(a) (defining a party to a hearing as one whose rights may be adversely affected).

Medicare contractors, like Administrative Law Judges, are adjudicators in a chain of administrative proceedings. See 42 CFR 405.702 regarding initial determinations, and 405.715 and 421.100(f) regarding reconsidered determinations. While they are still subject to de novo appeal, initial, revised, and reconsidered determinations by a Medicare intermediary do not express the "position of the United States" in an adversarial context. See 5 U.S.C. § 504(b)(1)(C).⁽⁷⁾ Nor do such determinations serve to represent any such position "by counsel or otherwise" in the subsequent proceeding before an Administrative Law Judge conducting a de novo review.

In finding an adversarial element in the proceedings at issue here, the Administrative Law Judge noted that the intermediary had used a flawed statistical method to impose a large overpayment on the appellant and had failed to withdraw its finding before the hearing, thus causing the appellant to incur additional costs in pursuing the appeal. The intermediary gave the appellant the opportunity to request reconsideration of the revised claim determinations and to rebut the proposed overpayment recoupment. There was no further due process requirement for the intermediary to review or withdraw its own findings. The fact that the intermediary's findings were ultimately reversed by the Administrative Law Judge does not transform a nonadversarial process into an adversarial one.

b. Cases Cited in Administrative Law Judge's EAJA Fee Order

Each of the cases cited in the order awarding EAJA fees is distinguished from the present case in that each involved a proceeding that was adversarial by regulation. In the Matter of Rita Villa, a Securities and Exchange Commission proceeding (Admin. Proceeding File No. 3-8527-EAJ), involved a matter in which the agency had "presented its case to an administrative law judge" over three days. After the judge had ruled in Villa's favor and the Commission had affirmed the outcome, Villa petitioned for attorney fees under the commission's own EAJA regulations. See 17 CFR 201.31 and 201.33 (applying EAJA regulations to adjudications in which "the position of an Office or Division of the Commission as a party . . . is presented by an attorney or other representative who enters an appearance and participates in the proceeding"). Notably, the commission's litigating division did not oppose the petition as a whole, but merely contested the hourly rate sought by Villa's representative.

In Chicago Center Hospital v. Heckler, 1986 U.S. District LEXIS 20797 (1986), the U.S. District Court for the Northern District of Illinois held that an administrative proceeding before HCFA's Provider Reimbursement Review Board (PRRB) was adversarial and that EAJA could apply. Although the court found that the government's position was represented "otherwise" than by counsel, the available decisions do not further describe the conduct of the administrative proceeding.⁽⁸⁾ Unlike Medicare coverage and payment appeals, proceedings before the PRRB are adversarial by design and regulation. See § 1878(a) of the Act, and regulations at 42 CFR 405.1843(a)(identifying parties to the Board hearing as the provider and the intermediary).

Similarly, the two cited cases decided in the Departmental Appeals Board of the Department of Health and Human Services (DHHS) involved proceedings that were adversarial by regulation and as conducted. In the case of Irving L. Becker v. Department of Health and Human Services, CR No. 77 (May 2, 1990), an Administrative Law Judge of the Departmental Appeals Board's Civil Remedies Division applied the EAJA provisions of 5 U.S.C. § 504 after Becker had prevailed in an administrative hearing on an alleged violation of 18 U.S.C. § 207(a), which prohibits certain actions by former employees in matters involving the employee's former agency. Regulations governing hearings on alleged violations of that statute directed the Department's Assistant General Counsel to "designate one or more officers or employees of the Department to present the evidence against the former departmental employee." 45 CFR 73b.4(a), (d) and (e), as in effect at the time of the underlying decision, Department of Health and Human Services v. Irving L. Becker, CR No. 39 (August 18, 1989)(emphasis added in cited passage). Neither Ms. Gant, who did not appear at the hearing or submit written arguments on the coverage or sampling issues in the present case, nor Ms. Barth, who merely testified as to sampling procedures, "presented evidence against" the appellant in this case in the manner of an opposing representative.

In Charles J. Godreau, M.D. v. The Inspector General, DAB-1300 (1992), the Departmental Appeals Board, Appellate Division, modified but did not invalidate an Administrative Law Judge's award of EAJA fees under 5 U.S.C. § 504. In the underlying decision, as described in the Board's EAJA decision, an Administrative Law Judge had reversed the Inspector General's ten-year exclusion of Dr. Godreau from participation in the Medicare and state health care programs under § 1128(b)(6)(B) of the Social Security Act. Again, in clear contrast to the case now at issue, regulations governing practitioner exclusions provide for an adversarial process, with the Office of the Inspector General a party to the hearing along with the affected practitioner. See 42 CFR 1001.2-.3 and 1001.101, -.105, -.107; see also 42 CFR 498.1-.3 and -.5, and 498.42 (1990).

c. Role of Departmental Counsel, CMS Employees, and Intermediary Statistician

In the arguments enumerated and summarized above, the remaining points concern the involvement in the case of Nigel Gant, Assistant Regional Counsel in Dallas for the Department of Health and Human Services; Penny Thompson, Dan Schwarz, and Ted Doyle, employees of CMS (then HCFA); and Alice Barth, a statistician employed by the fiscal intermediary. The appellant argued, and the Administrative Law Judge agreed at least with respect to Ms. Gant and Ms. Barth, that these employees rendered the proceedings adversarial by representing the position of the United States as contemplated by § 504.

The role of the three HCFA employees named in the appellant's second argument summarized above was clearly not that of representation or advocacy. As recounted by counsel for the appellant, two of the three apparently took no action when he asked HCFA to intervene so as to order or induce the intermediary to withdraw its overpayment finding, and the third (Mr. Doyle) reportedly stated that the intermediary's extrapolation was believed by "HCFA" to have been done properly, and that "HCFA would live with the ALJ's decision, whatever it might be" (Exh. MAC-3, page 3). The Administrative Law Judge did not list these employees among those present at the hearing, nor did he refer to any sort of communication with them. Accordingly, their involvement was minimal at most, and they cannot be said to have "represented" the agency or any position in the Administrative Law Judge's proceedings.⁽⁹⁾

During the development of the record for the hearing, the Administrative Law Judge issued one or more Subpoenas Duces Tecum to the intermediary to produce evidentiary records relevant to the request for hearing. According to the Administrative Law Judge, these were issued at the request of the appellant (Exh. MAC-1, decision dated January 26, 2001, at page 1). The record now before the Council does not show specifically what was requested, but Ms. Gant, the Assistant Regional Counsel, apparently objected to the subpoena and filed a motion for a protective order. The records that were ultimately furnished appear to have satisfied the appellant and the Administrative Law Judge, since the matter is not raised as a concern elsewhere in the record, and the resulting decision was largely favorable to the appellant. In the order awarding EAJA fees, the Administrative Law Judge referred to Ms. Gant's statement of October 19, 2000, acknowledging that she represented HCFA and the intermediary. Accordingly, he found Ms. Gant to have represented the position of the United States within the meaning of the EAJA statute.

Ms. Gant has characterized her involvement as "merely procedural" and as pertaining to a "matter distinct" from the subject of the hearing. See Exh. MAC-6 at page 4 (citing Rowell v. Sullivan, 813 F.Supp. 78, 81 (D.D.C. 1981)). Specifically, according to Ms. Gant, she was responding to the intermediary's concern about the confidentiality of beneficiary records sought in the subpoena. The decision of January 26, 2001, on the merits of the case does not reflect the participation of Ms. Gant in any capacity other than in connection with the evidentiary subpoena. Until the EAJA fee petition was filed, there is no indication that Ms. Gant or any other attorney or advocate for the agency submitted arguments in the case.

The intermediary's statistician, Alice Barth, did appear at the hearing. In his EAJA fee order, the Administrative Law Judge noted that "Alice Barth, a master's level statistician for Palmetto, was subpoenaed and appeared as a statistical expert of Palmetto" (pages 1-2). The record reflects that the Administrative Law Judge asked the intermediary to furnish a witness who could testify as to the methodology used in the overpayment calculation. Ms. Barth first offered to testify by telephone. Upon learning that Ms. Barth's presence was required at the hearing, the intermediary asked that she be subpoenaed in order that she could be reimbursed for travel expenses to the hearing. Ms. Barth later stated that she sat through the testimony of the appellant's statistician and then gave her own testimony. During her testimony, she responded to questions posed by the Administrative Law Judge and the appellant's counsel. She did not present legal arguments, she stated, or question other witnesses herself. The Administrative Law Judge's summary of Ms. Barth's testimony does not reflect her participation other than as a witness (Exh. MAC-1, decision dated January 26, 2001, at pages 6-7). After the hearing decision had been issued, an administrative assistant at the hearing office sent Ms. Barth a travel voucher for reimbursement of expenses as a "subpoenaed witness." See Exh. MAC-10 with attachments A and B.⁽¹⁰⁾

We find that this degree of participation in the hearing at the request of the Administrative Law Judge does not demonstrate that Ms. Barth was representing the agency. "Notwithstanding the fact that Ms. Barth appeared as an expert witness," the Administrative Law Judge concluded, "clearly her role was to support the position taken by HCFA in earlier stages of the proceedings" (page 8). We disagree with the Administrative Law Judge's conclusion that "the fact that she did so as an adverse witness rather than as counsel does not mean that she was not representing the position of HCFA 'by counsel or otherwise.'"

Ms. Barth's participation in this proceeding differs significantly from that of the Farmers Home Administration employees in the Lane case cited in the Administrative Law Judge's order, who appeared before the National Appeals Division of the U.S. Department of Agriculture and "present[ed]... evidence in support of their arguments." Lane v. U.S. Dept. of Agriculture, 929 F. Supp. 1290, 1297 (quoting from hearing officer's decision). The Lane court found that "both as provided for in statute, and as conducted in fact, [National Appeals Division hearings] were adversarial in nature." Id. at 1297.⁽¹¹⁾ In this respect, Lane resembles the adversarial proceedings discussed earlier. In the present case, by contrast, the statute as implemented in the regulations does not provide for an adversarial proceeding, and the participation of the intermediary's statistician as an "expert witness," in the Administrative Law Judge's own characterization, does not demonstrate that an adversarial hearing was conducted in fact.⁽¹²⁾

III. Conclusion

Inasmuch as the Administrative Law Judge hearing was not an "adversary adjudication" either by law and regulation or as actually conducted, the Medicare Appeals Council finds that the Equal Access to Justice Act does not apply to the proceedings in this case. Accordingly, the Council vacates the Administrative Law Judge's order dated August 21, 2001, and issues this decision denying the petition for attorney fees and costs under EAJA as the Secretary's final disposition. As noted, this action has no effect on the Administrative Law Judge's decision dated January 26, 2001, nor does the Council take any position as to the value of any services rendered on behalf of the appellant by its attorney except to find that such services may not be remunerated under EAJA.

Notice of this decision is hereby given by mailing a copy to the appellant and the representative.

February 25, 2003

Clausen Krzywicki
Administrative Appeals Judge

M. Susan Wiley
Administrative Appeals Judge

1. 5 U.S.C. § 554 defines adjudications for purposes of the Administrative Procedure Act (APA).

2. Documents relating to the request for EAJA fees have been entered into the record for this decision and have been marked as Exhibits MAC-1, MAC-2, etc. References in this decision to exhibits without the "MAC" identifier are to exhibits in the file of beneficiary XXX, designated by the Administrative Law Judge as the master file for the decision dated January 26, 2001.

3. See 20 CFR 404.987ff. See also the broader incorporation in 42 CFR 405.701(c) of Social Security's regulations regarding determinations and appeals in 20 CFR, Part 404, Subpart J. The latter regulations apply when more specific provisions for Medicare are not stated in 42 CFR, Part 405, Subpart G.

4. The provider's right to rebut the proposed overpayment recoupment is separate from the right to appeal the claim determinations and statistical methods used to arrive at the overpayment amount. See 42 CFR 405.370-.378.

5. See the discussion in subsection a. below regarding the relation of § 205(b) of the Act to the right to a hearing provided to this appellant by § 1869.

6. Consistent with the EAJA statute, DHHS's proposed rule also states that proceedings subject to EAJA are limited to those in which " the agency's litigating party enters an appearance and participates." 67 FR 52696, 52698. An appendix listing various agency proceedings that commonly meet that test does not include proceedings of the type at issue here. See 67 FR at 52698 and 52701 (Appendix A).

7. A determination or decision becomes final and binding only if it is not appealed. See 42 CFR 405.708 and 405.717, and 20 CFR 404.955 and 404.981.

8. The appellant cited Chicago Center Hospital as 1986 U.S. District LEXIS 20797. This decision, which ruled on the plaintiff provider's EAJA fee petition, may also be cited as 1986 WL 10059 (N.D.Ill.). The decision in the underlying matter was issued on September 9, 1995 (Chicago Center Hospital v. Heckler, 1985 WL 2492, N.D.Ill.). Neither decision describes the administrative proceeding before the PRRB. The PRRB's own decision, or any further action that may have been taken on administrative appeal, is not in the record or otherwise available. The court's holding, especially absent further description of the government's representation, does not help resolve whether the present case was adversarial as conducted.

9. In Ms. Gant's fourth argument as summarized in the EAJA decision, these employees appear to be confused with the employees who signed the intermediary's determination notices in Exhs. 19, 21, and 25.

10. The cassette tapes of the hearing held on November 13-15, 2000, are not available. The appellant reportedly possesses tapes, but these are described as of a quality such that they would be difficult to transcribe (Exh. MAC-7, page 3). In any event, these would not be the official record of the oral proceedings for the decision issued on January 26, 2001. (There were no oral proceedings in connection with the EAJA fee order issued on August 21, 2001.)

11. In finding the Lane adjudication to have been adversarial, the court also noted that the underlying action was based on a "bad faith" determination by the agency's Office of General Counsel. 929 F. Supp. at 1296. This factor has no parallel in the present case. Although the post-payment sample originated in the intermediary's fraud unit, the overpayment determination was limited to the question of the correctness of amounts previously paid, not to possible fraud or other issues that would go beyond the intermediary's ordinary adjudicative role in processing claims.

12. On page 8 of the EAJA fee award, the Administrative Law Judge includes the internal citation in Lane to a 1990 11^th Circuit decision, Pollgreen v. Morris, 911 F.2d 527, 533 (stating that representation of the government's position "otherwise" than by counsel refers to representation "in a manner similar to that of counsel"). An inference of representation under this definition by an individual who only participated as a witness would be unwarranted.