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The best way to deal with grievances is to avoid them through various dispute prevention measures (see below). When grievance cases arise, follow the steps under the Grievance Procedures described below. First steps should involve non-binding negotiations. For cases that cannot be resolved in this manner, undertake the subsequent steps with binding arbitration as a last resort.
Dispute Prevention
Planning councils and grantees can minimize disagreements 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 the bylaws and operating procedures of each planning council and grantee. They include, but are not limited to:
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Clear written statements on how decisions are made
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Open communication during the grant-making process, allowing groups to obtain clarification and an understanding of the criteria used
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Opportunities for interested parties to provide feedback on ways to improve the decision making process
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Training of planning council and grantee staff on ways to make the decision-making process inclusive and transparent
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A designated advocate or ombudsman on staff or on call to work internally with questions or concerns, and
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Conflict of interest policies and procedures that are available to the public.
Model Grievance Procedures
These model grievance procedures outline minimum elements that must be addressed in local grievance procedures. They include the following five components:
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Who may bring a grievance
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Types of grievances covered
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Non-binding procedures for resolving conflicts
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Use of binding arbitration for conflicts that cannot be resolved using non-binding procedures, and
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Rules governing the grievance process
Each is described below.
1. Who May Bring a Grievance
Individuals or entities directly affected by the outcome of a decision related to funding must be eligible to bring a grievance. Each planning council and grantee must define "directly affected." At a minimum, directly affected parties must include all of the following:
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Providers eligible to receive Ryan White HIV/AIDS Program funding
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Consumer groups/PLWHA coalitions and caucuses
The planning council [the planning council may present a grievance to the grantee], 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 Must Be Covered
Decisions with respect to funding must be addressed in local grievance procedures. For planning councils, grievance procedures must cover the process of establishing priorities (including any language regarding how best to meet the established priorities), allocating funds to those priorities, and any subsequent process to change the priorities or allocations. For grantees, grievance procedures must cover the process of selecting contractors, making awards, and any subsequent process to change the selection of contractors or awards.
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TYPES OF GRIEVANCES
IN RELATION TO PLANNING COUNCIL ACTIONS
(Priority-setting and Resource-allocation Process) Grievance procedures must allow directly affected parties to grieve:
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Deviations from an established, written priority-setting or resource-allocation process (e.g., failure to follow established conflict of interest procedures).
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Deviations from an established, written process for any subsequent changes to priorities or allocations.
IN RELATION TO GRANTEE ACTIONS (Procurement Process)
Grievance procedures must allow directly affected parties to grieve:
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Deviations from the established contracting and awards process (e.g., the selection of a particular provider in a manner inconsistent with the grantee's established procurement process).
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Deviations from the established process for any subsequent changes to the selection of contractors or awards.
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Grievance procedures must allow planning councils to grieve:
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Contracts and awards not consistent with priorities (including any language regarding how best to meet those priorities) and resource allocations made by the planning council.
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Contract and award changes not consistent with priorities and resource allocations made by the council.
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3. Non-Binding Procedures
Non-binding procedures must be in place for attempting 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 must:
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Designate a person or organization to receive grievances on behalf of the planning council or grantee
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Provide a form to initiate non-binding dispute settlement that includes at least the following (a sample form is attached):
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Names, addresses, and telephone numbers of the parties involved
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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 council or grantee.
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Remedy sought by the grievant
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Place where or person to whom the form should be delivered
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Designated person or position to register the form and notify the grievant of any determinations or decisions that are made
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Statement of any reasonable administrative fee to be paid by the grievant, and whether payment must be included with the filing of the form
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Specify rules that will apply to non-binding dispute settlement processes (see "Rules for the Grievance Process," below)
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Provide a mechanism to inform the grievant of the rules that will apply to the process, and
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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
Grievance procedures must specify the use of arbitration to resolve 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 must have access to the arbitration process.
At a minimum, arbitration procedures must include the following:
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A designated person or organization to receive a request for binding arbitration on behalf of the planning council or grantee
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A form to initiate binding arbitration that includes at least the following:
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Names, addresses, and telephone numbers of the parties involved
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Issue(s) to be resolved and how the person or organization seeking resolution has been affected by the decision of the planning council or grantee
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Remedy sought by the grievant
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Place where or person to whom the form should be delivered
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Designated person or position to register the form and notify the grievant of any determinations or decisions
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Previous steps taken under non-binding procedures that have not resulted in agreement
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Acknowledgment of the binding nature of the process
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Statement of any reasonable administrative fee to be paid by the initiator and whether payment must be included with the filing of the form
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Rules that will apply to the binding arbitration process (see "Rules for the Grievance Process" below), and
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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 must specify at least the following:
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Degree of confidentiality of the process
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Maximum time period between filing the form and response from the other party
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The process and time period for designating a third party
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Time period for holding a meeting of the parties, if necessary
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Designation of a place for that meeting, and
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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 must specify at least the following:
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Steps in the arbitration process
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Maximum time period allowed between filing the form and response from the other party
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Time period set aside for holding a hearing, if necessary
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Designation of a place for that hearing
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Time period allocated for the arbitrator to render a decision
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How the decision will be presented, and
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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 must be specified for at least the following:
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Length of time after a decision related to funding has been made, during which a grievance may be brought-the time limit after which a decision or an award can no longer be challenged
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Time periods for conducting various non-binding processes, including the maximum time allowed to complete the process once initiated
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Length of time after the conclusion of non-binding processes for the grievant to initiate binding arbitration, and
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Time period for conducting the arbitration process.
It is up to the local planning council and grantee to decide the time following a funding decision during which a grievance may be filed. Thirty calendar days (or 20 business days) probably provides sufficient time for a potential grievant to decide whether to challenge the decision-making process or the funding 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:
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Determination that the grievance or grievant falls within scope of the procedures: 2-5 days
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Notification of the other party: 1-2 days
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Selection of a third party: 5-10 days
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Meeting(s) with parties: 10-15 days
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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:
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Determination by the grievant to use binding arbitration: 5-10 days
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Notification of the other party: 1-3 days
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Agreement of the parties to arbitrate and selection of an arbitrator: 5-10 days
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Hearing (if necessary): 10-15 days
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Decision by arbitrator: 5-10 days
Costs
Because grievance procedures typically entail costs, rules should address costs of administering the process, including at least:
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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, and
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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 allowable in order to recover reasonable costs of administering the grievance process but should not be so burdensome as to discourage filing of legitimate grievances. It is permissible to require a grievant to pay a reasonable administrative fee to initiate the process and to require grievants to 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 balance the legislative requirement that permits legitimate grievances but not unduly disrupt the expeditious distribution of Ryan White HIV/AIDS Program funds. Local 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. An impartial and diverse 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 Ryan White HIV/AIDS Program.
This process should meet the legislative requirement that procedures should "permit legitimate grievances to be filed, evaluated, and resolved at the local level."
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:
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 must specify the time period and process for selecting third parties for both nonbinding processes and arbitration. Methods for selecting a third party include:
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Advance naming of independent and impartial third parties who can be drawn on to resolve a particular grievance
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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)
To ensure impartial and mutually acceptable third parties, a useful approach is to submit the names of several third parties, with each party asked to cross off any 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 the administrative burden on the planning council or grantee 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, the CEO may appoint a third party in a manner that is consistent with these model procedures. A third party designated by the CEO should complete a written statement disclosing any 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. |
