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CARE Act Title II Manual - 2003 Version

VI. Planning Bodies

8. Grievance Procedures

Introduction

HAB/DSS Expectations
Steps in Dealing with Grievances
Definitions
References
Sample Grievance Form

Chapter 8
Grievance Procedures

There are several sources from which a Title II planning body or grantee may receive grievances. Examples include decisions made by consortia, issues raised by patient advocates, the results of case management and quality assurance reviews, and complaints raised in open forums.

Ideally, the best way to deal with grievances is to prevent them by using clear decision-making processes, making decisions in public view, and using a variety of informal methods to resolve potential problems early on. Informal methods can save time and help build positive relationships between consumers and planning body members. When grievances cannot be resolved in this manner, more formal procedures can provide an orderly and fair process for addressing dissatisfactions. Well-crafted grievance procedures include both informal mechanisms (e.g., dispute prevention, opportunities to ask questions about decision making criteria) and formal methods (e.g., non-binding and binding arbitration).

HAB/DSS Expectations TOP

While Title I is legislatively mandated by the CARE Act to establish a grievance process with respect to funding decisions, Title II grievance procedures are not specifically required by the CARE Act or HAB/DSS. However, Title II grantees and consortia are strongly encouraged to have grievance procedures in place.

Each Title II grantee and consortium should have a written set of procedures for resolving grievances. Having a grievance process in place provides an orderly and fair process for addressing dissatisfactions. A grievance process also deters individuals from airing their complaints inappropriately.

HAB/DSS has developed model grievance procedures to guide local efforts in adequately addressing potential grievances. Many localities had such procedures in place long before CARE Act requirements. Areas are urged to use or adapt them. There should be periodic local review of grievance procedures and their implementation to ensure that grievances are being resolved in a timely and appropriate manner.

Steps in Dealing with Grievances TOP

The best way to deal with grievances is to avoid them through various dispute prevention measures. When grievance cases arise, steps under the below Model Greivance Procedures should be followed. First steps should involve non-binding negotiations. For cases that cannot be resolved in this manner, subsequent steps should be undertaken, with binding arbitration as a last resort.

Dispute Prevention

Disagreements can be minimized through dispute prevention, which entails creating a climate of cooperation and open decision making. Dispute prevention measures (which are not a part of the grievance process itself) should be incorporated into bylaws and operating procedures. They include, but are not limited to:

Clear written statements on how decisions are made.
Open communication during the grantmaking process, allowing groups to obtain clarification and an understanding of criteria used.
Opportunities for interested parties to provide feedback on ways to improve the decision-making process.
Training on ways to make the decision making process inclusive.
A designated advocate or ombudsman on staff or on call to work internally with questions or concerns.
Conflict of interest policies and procedures.

Model Grievance Procedures

The following model grievance procedures outline minimum elements that might be addressed in local grievance procedures. They include:

Who may bring a grievance
Types of grievances covered
Non-binding procedures for resolving conflicts
Use of binding arbitration for conflicts that cannot be resolved using non-binding procedures, and
Rules governing the grievance process

Each element is described below.

1. Who May Bring a Grievance

Individuals or entities directly affected by the outcome of a decision should be eligible to bring a grievance. “Directly affected” should be defined and might include: providers eligible to receive CARE Act funding; consumer groups/PLWH coalitions and caucuses; and other affected entities and individuals as determined locally.

Careful consideration should be given to the inclusion of other affected individuals. A balance must be struck between restricting the process too narrowly, which can create tension and distrust, and opening the process too widely, which can overburden and delay the decision-making process.

2. Types of Grievances That Might Be Covered

Grievance procedures might cover multiple areas, such as:
Deviations from the priority-setting or resource-allocation process (e.g., failure to follow established conflict of interest procedures)
Deviations from the contracting and awards process (e.g., the selection of a particular provider in a manner inconsistent with the grantee’s established procurement process)
Contracts and awards that are not consistent with priorities and resource allocations made by the planning body

3. Non-Binding Procedures

Non-binding procedures are designed to resolve grievances. One such procedure is mediation—a process where a third party assists the parties to a dispute in airing concerns and perspectives, finding areas of agreement, and reaching a conclusion that they can accept. Other approaches include facilitation, which is similar to mediation except that the facilitator does not typically become as involved in the substantive issues. Yet another technique is an ombudsman, who investigates a grievance and makes a non-binding report to the parties involved.

Non-binding procedures:

Designate a person or organization to receive grievances on behalf of the planning body or grantee
Provide a form to initiate non-binding dispute settlement that includes at least the following (A sample form is attached):
- Names, addresses, and telephone numbers of the parties involved
- Issue(s) to be resolved and how the person or organization seeking resolution (the grievant) has been directly affected by the decision of the planning body or grantee
- Remedy sought by the grievant
- Place where or person to whom the form should be delivered
- Designated person or position to register the form and notify the grievant of any determinations or decisions that are made
- Statement of any reasonable administrative fee to be paid by the grievant, and whether payment must be included with the filing of the form
Specify rules that will apply to non-binding dispute settlement processes (See “Rules for the Grievance Process,” below)
Provide a mechanism to inform the grievant of the rules that will apply to the process, and
Outline steps the grievant should take if there is no resolution of the grievance within the appropriate time period and the grievant wishes to initiate binding arbitration.

4. Binding Arbitration

Arbitration resolves disputes when other methods have failed. Arbitration, the use of an independent and impartial third party to decide disputes, is the final stage in the dispute resolution process. Under the grievance process, the decision of the arbitrator is binding on the parties to the dispute.

If the non-binding approach selected by the parties is not successful within a designated time period, or if the third party determines that there is no further purpose to continuing the non-binding process, the grievant has the option of continuing to seek resolution through binding arbitration. Any party that has initiated a grievance that has not been resolved in whole or in part through non-binding procedures should have access to the arbitration process.

At a minimum, arbitration procedures should include the following:

A designated person or organization to receive a request for binding arbitration on behalf of the planning body or grantee
A form to initiate binding arbitration that includes at least the following:
- Names, addresses, and telephone numbers of the parties involved
- Issue(s) to be resolved and how the person or organization seeking resolution has been affected by the decision of the planning body or grantee
- Remedy sought by the grievant
- Place where or person to whom the form should be delivered
- Designated person or position to register the form and notify the grievant of any determinations or decisions
- Previous steps taken under non-binding procedures that have not resulted in agreement
- Acknowledgment of the binding nature of the process
- Statement of any reasonable administrative fee to be paid by the initiator and whether payment must be included with the filing of the form
Rules that will apply to the binding arbitration process (See “Rules for the Grievance Process,” see below), and
A mechanism for effectively informing the grievant of the rules that will apply to the process.

5. Rules for the Grievance Process

Both non-binding procedures and binding arbitration must have rules. They provide both the grievant and other parties, including the third party, with a common understanding of how the procedures will be conducted, what is expected of each party, and the time limits and costs of the procedures. Some third parties, or the organizations sponsoring them, have their own set of rules. Third parties that do not have their own rules may wish to designate an existing set of rules such as those summarized below.

Non-Binding Rules

Non-binding rules should specify at least the following:

Degree of confidentiality of the process
Maximum time period between filing the form and response from the other party
The process and time period for designating a third party
Time period for holding a meeting of the parties, if necessary
Designation of a place for that meeting, and
Maximum length of time that a non-binding process can continue without agreement, after which the third party must end the process and inform the parties of any additional steps (e.g., arbitration) that are available to them.

Binding Arbitration Rules

Binding arbitration rules should specify at least the following:

Steps in the arbitration process
Maximum time period allowed between filing the form and response from the other partyTime period set aside for holding a hearing, if necessary
Designation of a place for that hearing
Time period allocated for the arbitrator to render a decision
How the decision will be presented, and
Whether the decision will apply retrospectively to the decision that led to the grievance or only to future decisions.

Timing

Grievance procedures that contain time limits on various activities allow for an effective use of the process without resulting in undue delay in the delivery of needed HIV/AIDS services. Time periods should be specified for at least the following:

Length of time after a decision related to funding has been made, during which a grievance may be brought—the time limit after which an award can no longer be challenged
Time periods for conducting various non-binding processes, including the maximum time allowed to complete the process once initiated
Length of time after the conclusion of non-binding processes for the grievant to initiate binding arbitration, and
Time period for conducting the arbitration process.

It is up to the planning body and grantee to decide the time limit after a decision is made that a grievance may be filed. Thirty days probably provides sufficient time for a potential grievant to decide whether to challenge the decision-making process or the decision itself.

Non-binding Resolution. After the request for a non-binding resolution is received, the following time periods, which run consecutively, should be considered for inclusion in local rules:

Determination that the grievance or grievant falls within scope of the procedures: 2-5 days
Notification of the other party: 1-2 days
Selection of a third party: 5-10 days
Meeting(s) with parties: 10-15 days
Resolution or decision by the third party not to continue (impasse): 5 days

Binding Arbitration. After the form requesting binding arbitration is received, the following time periods, which run consecutively, should be considered for inclusion in local rules:

Determination by the grievant to use binding arbitration: 5-10 days
Notification of the other party: 1-3 days
Agreement of the parties to arbitrate and selection of an arbitrator: 5-10 days
Hearing (if necessary): 10-15 days
Decision by arbitrator: 5-10 days

Costs

Because grievance procedures typically entail costs, rules should address costs of administering the process, including at least:

Reasonable costs that may be involved for administering the process and for the services of the third party, how they will be allocated between the parties, and when they are due.
Costs or transfers of funds that may be called for in any settlement agreed to by the parties or a decision of an arbitrator.

Administrative fees are to recover reasonable costs of administering the grievance process but should not be so burdensome as to discourage filing of legitimate grievances. A grievant can be required to pay a reasonable administrative fee to initiate the process and share in the costs of mediation and arbitration. Third parties (e.g., arbitration services) may also charge a fee for their services. Local procedures should specify any costs that might be involved and how the costs will be allocated in the absence of agreement among the parties.

Funding of Projects after a Grievance is Filed

Grievance procedures should address how to handle the funding of projects after an award has been made but while a grievance is pending. Procedures should not unduly disrupt the expeditious distribution of CARE Act funds. Procedures should clearly address whether the results of the grievance should be prospectively addressed (i.e., not requiring reversals of decisions such as approved expenditures), or allow for retroactive resolution (e.g., changes in funding decisions).

Review of Grievance Requests

A process should be defined for determining what issues can be grieved and whether the grievant is eligible to bring the grievance. A broadly inclusive committee can be used for this purpose. The purpose of the review is not to add an extra step to the grievance process but to provide a broader consideration of filed grievances to ensure that decisions are consistent with the purposes and spirit of the grievance procedure as called for in the CARE Act.

Selection of Third Parties

Procedures must identify how third parties will be selected for non-binding dispute settlement procedures and for arbitration. Among the factors that should be considered in the third party selection procedures are:

Conflicts of interest
Training and experience
Cost, and
Availability during the required time period

Third parties should be independent of the specific process that is the subject of the dispute and should not have a direct interest in the decision that is the subject of the grievance.

Procedures should specify the time period and process for selecting third parties for both non-binding processes and arbitration. Methods for selecting a third party include:

Advance naming of independent and impartial third parties who can be drawn on to resolve a particular grievance.
Advance designation of an organization that identifies and provides independent and impartial third parties to resolve a particular grievance.
Appointment of an independent and impartial third party by the chief elected official (CEO).
Submission of the names of several third parties, with each party asked to cross off unacceptable names, and the remainder considered acceptable by both. If after several lists, no third party acceptable to both parties has been identified, a designated person or organization should select the third party.

Selecting a group or entity in advance reduces administrative burden but may involve administrative costs for the group selected. Normally, arbitrators and other third parties are approved by all the parties to the dispute. However, a third party may be appointed in a manner that is consistent with these model procedures. A third party should complete a written statement disclosing any potential conflicts of interest that might exist between the third party and the parties to the grievance. The parties should be given the opportunity to review the statement.

An issue of concern to many groups or individuals seeking third-party resolution of disputes is where to find third parties. A number of entities can provide assistance, and individual mediators and arbitrators can also be found in many localities. Both the American Arbitration Association (AAA) and the Better Business Bureau (BBB) maintain lists of trained and impartial mediators and arbitrators and have many branches or offices throughout the country. The National Association for Community Mediation (NAFCM) includes individual and organizational members that mediate disputes. The Association for Conflict Resolution (a merged organization that includes the Society for Professionals in Dispute Resolution) can also provide names. Many State and Federal court systems have programs of alternative dispute resolution, and a number of States have offices of dispute resolution. Federal Executive Boards may also be able to provide neutral third parties. Some university-based conflict resolution programs can identify neutral third parties.

Costs of these third parties and the fees they charge vary. BBB mediators and arbitrators are trained volunteers.

Definitions TOP

Terms commonly used in grievance procedures and other dispute resolution processes are defined below. Local grievance procedures can modify these definitions or add others. Terms should be used consistently to avoid uncertainty and enhance implementation of the procedures.

Arbitration	The submission of a dispute to an impartial or independent individual or panel for a decision that is generally binding on both parties. Arbitration is usually carried out under a set of rules. The decision of an arbitrator generally has the force of law, although it generally does not set a precedent on how future disputes will be resolved.
Arbitrator	An individual or panel of individuals (usually three) selected to decide a dispute or grievance. Arbitrators may be selected by the parties or by another individual or entity.
Binding	A process in which parties agree to accept as final the decision of an arbitrator or other third party.
Costs	Charges for administering a dispute settlement process.
Day	Refers to a calendar day or a business working day. Either reference point can be used, as long as the grievant and the person or group against which the grievance is brought understand the applicable time frame.
Dispute Prevention	Techniques or approaches used by an organization to resolve disagreements at an early and informal stage to avoid or minimize the number of disputes that reach the formal grievance process.
Facilitation	A voluntary process involving the use of techniques to improve the flow of information and develop trust between the parties to a dispute. Involves a third party (facilitator) who uses a process to assist the parties in reaching an agreement that is acceptable to them.
Facilitator	A third party who works with the parties to a dispute, providing direction to a process. A facilitator may be independent or may be drawn from one of the parties, but must be impartial on the topics under discussion.
Grievance	A complaint or dispute that has reached the stage where the affected party seeks a formal approach to its resolution.
Grievant	A person or entity seeking a formal resolution of a grievance.
Impartiality	Freedom from favoritism or bias, either in word or action; a commitment to aid all parties, as opposed to a single individual, in reaching a mutually satisfactory agreement.
Mediation	A formal process in which a neutral person, the mediator, assists the parties in reaching a mutually acceptable resolution to their dispute. Mediation may involve meetings with the parties together and separately. The results of mediation can become binding if the parties agree.
Mediation/ arbitration	A mixed approach in which parties agree to mediate their differences and submit issues that cannot be resolved through mediation to arbitration. This technique helps to narrow the issues submitted to arbitration. The parties may agree to use separate mediators and arbitrators for different stages of the process, or they may use the same third party.
Mediator	A trained impartial and usually independent third party selected by the parties to the dispute or by another entity to help the parties reach an agreement on a determined set of issues.
Neutral	A term used to describe an independent third party, including a mediator or arbitrator, selected to resolve a dispute or grievance. The term is used because the person should not favor either side in the dispute.
Non- binding	Techniques in which the parties to a dispute attempt to reach an agreement but are not required to accept the results. The agreement must be voluntarily accepted by both parties; results are not imposed by a third party as they are in binding arbitration or in a judicial proceeding.
Ombudsman	An individual selected by parties in a dispute who investigates the facts of a situation and makes recommendations to the parties. The recommendations of ombudsmen are not binding and their effectiveness depends in large measure on their ability to persuade the parties to accept their recommendation.
Party	Refers to one of the participants in the grievance process. This includes the grievant (the person or group that brings the grievance action) and the person or group against which the grievance is brought.
Remedy	The relief or result sought by a grievant in bringing a grievance. It can include money damages, a process change, or a reversal of a decision. Whether it applies prospectively (to future funding-related decisions) only or retroactively (to past funding decisions) is determined by each local grievance procedure.
Standing	A term referring to the eligibility of an individual or entity to bring a grievance. In the case of grievance procedures under the CARE Act reauthorization, a person or entity that is directly affected has standing to challenge a planning body or grantee decision with respect to funding.
Third Party	A term used to describe an independent or impartial person, including a facilitator, mediator, ombudsman, or arbitrator selected to resolve a dispute or grievance or assist the parties in resolving it.

REFERENCES TOP

Health Resources and Services Administration, HIV/AIDS Bureau. “Grievance Procedures for Ryan White Title I Programs.” CARE Act National Technical Assistance Call Report. Rockville, MD: U.S. Department of Health and Human Services, 1997.

Sources of Information about Grievance Procedures and Dispute Resolution

American Arbitration Association: A nonprofit organization that helps to resolve disputes through mediation, arbitration, and other alternative dispute resolution approaches. Its “Roster of Neutrals” includes thousands of names of trained mediators and arbitrators. Local offices nationwide are listed on its website. AAA has developed a Code of Ethics and helped develop Model Standards of Conduct for Mediators.

Association for Dispute Resolution: A merged nonprofit organization that includes the Academy of Family Mediators (AFM), The Conflict Resolution Education Network (CREnet), and the Society for Professionals in Dispute Resolution (SPIDR). It maintains a national directory of nonprofit mediation organizations and has many publications.

The Council of Better Business Bureaus: A nonprofit organization that includes volunteer mediators and arbitrators whose focus is resolving disputes between consumers and businesses. There are more than 125 local Better Business Bureaus nationwide. For information on dispute resolution services.

Association for Community Mediation: A nonprofit organization that focuses on community-based mediation. It is a membership organization of community mediation centers, their staff and volunteer mediators, and other individuals and organizations interested in the community mediation movement. Its website includes a national directory of mediation centers and links to many other organizations.

Sample Grievance Form TOP

Grievances may be filed for the following deviations from policy:

Deviations from an established, written priority-setting or resource-allocation process (for example, failure to follow established conflict of interest procedures); and
Deviations from an established, written process for any subsequent changes to priorities or allocations.

The procedures that will govern the handling of this grievance are attached.

If you wish to file a grievance with the _____________, this form must be completed, submitted, and received by the [identify designated position and/or office for receiving grievance forms] within 30 days of the date of the alleged deviation. You will be contacted within ten (10) working days of the receipt of this form by [specify position]. There is no administrative fee associated with filing this grievance. [Or specify fee.]

When completed, submit this grievance form to the [specify office and address].

Name(s) of Person(s)
Filing the Grievance: __________________________________________________

Address: ___________________________________________________________

____________________________________________________

Telephone Number daytime): ___________________________________________

Date of alleged deviation from established policy: __________________________

Which policy was allegedly deviated from? ________________________________

___________________________________________________________________

Describe in detail the alleged deviation, including how you were directly affected and what remedy you seek: _______________________________________________

___________________________________________________________________

[Add additional pages as needed.]