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CARE
Act Title I Manual - 2003 Version |
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Chapter
5
Grievance Procedures
TOP
Introduction
Title I grantees
and planning councils are legislatively mandated to have a grievance
process in place regarding funding decisions. The intent is to provide
an orderly and fair process for addressing dissatisfactions. 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 council members. When
grievances cannot be resolved in this manner, formal written grievance
procedures must be available.
Legislative
Background
TOP
Legislative
provisions related to grievance procedures are as follows:
Section 2602(b)(6) requires planning councils to "develop procedures
for addressing grievances with respect to funding under this part,
including procedures for submitting grievances that cannot be resolved
to binding arbitration. Such procedures shall be described in the
by-laws of the planning council and be consistent with the requirements
of subsection (c)."
Section 2602(c)(1)(A), requires "the Secretary [to] develop
model grievance procedures…[to guide planning councils and grantees].
Such model procedures shall describe the elements that must be addressed
in establishing local grievance procedures and provide grantees
with flexibility in the design of such local procedures."
Section 2602(c)(1)(B) requires "the Secretary [to]...review
grievance procedures established by the planning council and grantees
under this part to determine if such procedures are adequate.
In making such a determination, the Secretary shall assess whether
such procedures permit legitimate grievances to be filed, evaluated,
and resolved at the local level."
Section 2602(c)(2) states that "to be eligible to receive funds
under this part, a grantee shall develop grievance procedures that
are determined by the Secretary to be consistent with the model
procedures developed under paragraph (1)(A). Such procedures shall
include a process for submitting grievances to binding arbitration."
HAB/DSS
Expectations
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The HIV/AIDS
Bureau’s Division of Service Systems (HAB/DSS) expects grantees
and planning councils to meet the legislative intent of grievance
procedures for a locally defined process to address grievances related
to CARE Act funding, with review and assistance by HAB/DSS to ensure
that these procedures adequately address potential grievances. The
legislative intent calls for local flexibility in the development
of grievance procedures and the resolution of grievances through
progressive steps that lead up to binding arbitration when grievances
cannot otherwise be resolved. At local discretion, procedures can
address other types of disputes besides funding that are faced by
planning councils and grantees.
The CARE Act requires both Title I planning councils and Title I
grantees to establish procedures to address grievances related to
funding. Grantee and planning council grievance procedures should
be coordinated so that they work well together.
Costs of grievance procedures are determined locally and must be
reasonable. 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 and are urged to use or adapt them in meeting legislative
requirements. There should be periodic local review of grievance
procedures and their implementation to ensure that legislative requirements
are being met and grievances are being resolved in a timely and
appropriate manner. Any revisions in these grievances should be
sent to the HAB/DSS project officer to be approved and kept on file.
Steps
in Dealing with Grievances
TOP
The best way
to deal with grievances is to avoid them through various dispute
prevention measures (see below). When grievance cases arise, steps
under the below Grievance 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
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:
-
Clear written statements on how decisions are made
-
Open communication during the grant-making process, allowing
groups to obtain clarification and an understanding of the criteria
used
-
Opportunities for interested parties to provide feedback on
ways to improve the decision making process
-
Training of planning council and grantee staff 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, and
-
conflict of interest policies and procedures.
Model Grievance Procedures
These model grievance procedures outline minimum elements that must
be addressed in local grievance procedures. They include the following
five components:
-
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 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:
-
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 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.
TYPES
OF GRIEVANCES
IN RELATION TO PLANNING COUNCIL ACTIONS
(Priority-setting and Resource-allocation Process) Grievance
procedures must allow directly affected parties to grieve:
-
Deviations from an established, written priority-setting
or resource-allocation process (e.g., failure to
follow established conflict of interest procedures).
-
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:
-
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).
-
Deviations
from the established process for any subsequent changes
to the selection of contractors or awards.
-
Grievance procedures must allow planning councils to grieve:
-
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.
-
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:
-
Designate a person or organization to receive grievances on
behalf of the planning council 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 council 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
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:
-
A
designated person or organization to receive a request for binding
arbitration on behalf of the planning council 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 council 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" 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 must 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 must specify at least the following:
-
Steps in the arbitration process
-
Maximum time period allowed between filing the form and response
from the other party
-
Time 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
must 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 local planning council and grantee to decide the
time limit after a funding 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 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:
-
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, and
-
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 CARE Act 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. 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.
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:
-
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, and 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.
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.
Definitions
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 council 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. |
With
Respect to Funding |
Refers
to planning council priority setting and allocation processes
(including any language regarding how best to
meet the priorities), the grantee contracting and award process,
and any subsequent change to the priorities, allocations or
selection of contractors and their awards. CARE Act legislation
requires grievance procedures to cover grievances of this type.
|
REFERENCES
TOP
Health Resources
and Services Administration (HRSA), HIV/AIDS Bureau (HAB). "Grievance
Procedures for Ryan White Title I Programs." CARE Act Technical
Assistance Conference Call Report, 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. See http://www.adr.org.
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.
See http://www.acresolution.org.
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. See http://www.dr.bbb.org.
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. See
http://www.nafcm.org.
Attachments
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Attachment 1:
Sample Grievance Form
TOP
Ryan
White Title I Planning Council
Grievances
may be filed against the Planning Council 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 _____________ EMA Ryan White Title
I Planning Council, 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.]
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